Urbina v. Commonwealth, Record No. 2467-02-4 (Va. App. 11/4/2003)
Decision Date | 04 November 2003 |
Docket Number | Record No. 2467-02-4. |
Court | Virginia Court of Appeals |
Parties | MARVIN DIRCEU MINAS URBINA v. COMMONWEALTH OF VIRGINIA. |
APPEAL FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY, LeRoy F. Millette, Jr., Judge.
Glenn S. Wainer for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton and Clements Argued at Alexandria, Virginia.
The trial judge convicted Marvin Dirceu Minas Urbina of malicious wounding upon his guilty plea. Minas Urbina contends the trial judge erred because (1) the judge lacked jurisdiction to convict him after vacating an earlier conviction, (2) the conviction order violated the Double Jeopardy Clause of the Constitution, (3) the conviction order was predicated upon the Commonwealth's breach of a plea agreement, and (4) the conviction order was entered in violation of his right to a "speedy trial." We affirm the conviction.
On August 1, 2000, Minas Urbina pled guilty to malicious wounding in violation of Code § 18.2-51. After making the appropriate inquiry, the trial judge accepted the plea, heard evidence supporting the charge, convicted Minas Urbina of malicious wounding, and ordered a pre-sentence report. At the sentencing hearing, Minas Urbina's attorney represented to the judge that Minas Urbina would be deported if convicted of a felony, and he made the following request:
Mr. Wainer: . . . I would also like to point out that . . . Minas [Urbina] . . . is just a permanent resident. His whole family lives here and that under federal law . . . a person convicted of a felony is a deportable person, it's almost automatic.
I would ask this Court to consider everything that's happened here. I think there are some good considerations here and before the Court does impose sentencing perhaps maybe it could structure a program that could fit Mr. Minas [Urbina] which possibly could entail some sort of community service, probation, boot camp, and education . . . before [you] enter a sentence on a guilty plea, Judge.
[Judge]: You don't want me to sentence him? You want me to suspend an imposition so that he won't have a felony conviction; is that what you're saying?
Mr. Wainer: That's correct, Judge.
The trial judge asked the attorney to address the deportation issue in a written submission. The judge continued the sentencing hearing without objection and released Minas Urbina on bail. In a memorandum, the attorney referenced various portions of the federal code, noted that a conviction on a felony charge would result in deportation, and described Minas Urbina's family circumstance. Based upon these considerations, he requested the judge to "suspend the imposition of sentence . . . or in the alternative . . . vacate [the] prior finding of guilty." At the sentencing hearing, the trial judge orally indicated he would vacate the previous finding of guilt, "suspend imposition of sentence" for a period of three years, order three years of supervised probation with special conditions, and continue the case until October 16, 2003. Without objection by Minas Urbina, the trial judge entered an order on January 31, 2001 vacating the "previous finding of guilty," imposing the conditions of good behavior and other requirements, and also finding, however, "that the facts in this case justify a finding of guilty."
Fourteen months after entry of this order, the police arrested Minas Urbina and charged him with several criminal law violations. The police also detained him on a warrant for violating the conditions of the January 31, 2001 order. Following an evidentiary hearing to determine whether Minas Urbina had violated the conditions of the January 31, 2001 order, the trial judge found that he did. By an order entered August 27, 2002, the trial judge convicted Minas Urbina of malicious wounding based upon the evidence at the August 1, 2000 hearing, sentenced him to five years in prison, suspended four years and six months of that sentence, and imposed a term of probation.
Minas Urbina contends the January 31, 2001 order was a final order. He argues, therefore, that the August 2002 conviction order is void as a violation of Rule 1:1.
In pertinent part, Rule 1:1 provides that "[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." The principle is well settled that "`[a] final order is one which disposes of the whole subject, gives all the relief contemplated, provides with reasonable completeness for giving effect to the sentence, and leaves nothing to be done in the cause save to superintend ministerially the execution of the order.'" Daniels v. Truck & Equip. Corp., 205 Va. 579, 585, 139 S.E.2d 31, 35 (1964) (citations omitted). These principles apply in a criminal case. Davidson v. Commonwealth, 246 Va. 168, 171, 432 S.E.2d 178, 180 (1993) ( ). In short, the final order in a criminal proceeding is generally the order sentencing a defendant in some manner after a finding of guilt. In re Dept. of Corrections, 222 Va. 454, 463, 281 S.E.2d 857, 862 (1981). See also Fuller v. Commonwealth, 189 Va. 327, 332, 53 S.E.2d 26, 28 (1949) ( ); Patterson v. Commonwealth, 39 Va. App. 610, 614, 575 S.E.2d 583, 585 (2003) ( ); D'Alessandro v. Commonwealth, 15 Va. App. 163, 167, 423 S.E.2d 199, 201 (1992) ( ).
Prior to sentencing Minas Urbina upon his August 1, 2000 guilty plea, the trial judge entered the January 31, 2001 order, which vacated the conviction, continued the proceeding to a specific date, and retained jurisdiction over this matter. The January 31, 2001 order did not adjudicate Minas Urbina "guilty" of a criminal offense and did not sentence him for a criminal violation. Thus, it was not a "final disposition" of the matter. Indeed, when Minas Urbina was brought before the circuit court in August 2002, the original criminal proceeding on the malicious wounding charge remained pending pursuant to the express terms of the January 31, 2001 order. Because no final order had previously been entered, Rule 1:1 did not cause the trial judge to lose jurisdiction over the proceeding.
Minas Urbina also challenges the manner in which the trial judge structured the January 31, 2001 order. He asserts that "[a]lthough the Judge stated from the bench that he was going to `suspend the imposition of sentence' . . . , he failed to do so." Minas Urbina argues that, therefore, "[b]ecause the court . . . did not see fit to sentence [him] to a term of incarceration or, did not see fit to suspend imposition of sentence, the court was without jurisdiction [in August 2002] to modify, suspend or vacate the order of January 31, 2001." This argument lacks merit.
As we indicated in Part I of this opinion, the trial judge structured his order in response to Minas Urbina's attorney's plea to give Minas Urbina a chance to rehabilitate himself and to avoid deportation. To emphasize the specific focus of the attorney's request, we repeat the following dialogue:
[Judge]: You don't want me to sentence him? You want me to suspend an imposition so that he won't have a felony conviction; is that what you're saying?
Mr. Wainer: That's correct judge.
The trial judge could not suspend imposition of sentence unless he had first convicted Minas Urbina, a result his attorney asked the judge to avoid. See Code § 19.2-303 (). Moreover, the principle is well established that "[n]o litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate — to invite error . . . and then to take advantage of the situation created by his own wrong." Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988). We have applied this principle when holding that "[a] party may not invite error and subsequently raise that error as a grounds for appeal." Batts v. Commonwealth, 30 Va. App. 1, 11, 515 S.E.2d 307, 312 (1999). Accordingly, we hold that Minas Urbina cannot now challenge as reversible error the judge's decision to proceed in a manner that did not involve suspension of the imposition of a sentence. Having asked the trial judge to avoid convicting him of a felony, Minas Urbina will "not be allowed to assume an inconsistent position" by arguing that the judge erred in responding favorably to his request. Clark v. Commonwealth, 220 Va. 201, 214, 247 S.E.2d 784, 792 (1979).
Minas Urbina also contends that the August 2002 conviction order violated the Double Jeopardy Clause of the Fifth Amendment. Because he never presented this argument to the trial judge, Rule 5A:18 bars our consideration of this question on appeal. "The Court of Appeals will not consider an argument on appeal which was not presented to the trial court." Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18.
Minas Urbina contends the Commonwealth violated a plea agreement when it sought to prove he violated the conditions of the January 31, 2001 order. This contention lacks merit.
At the August 2002 hearing, a probation officer testified about Minas Urbina's violations of the conditions of the January 31, 2001 order....
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