Widdifield v. Commonwealth, Record No. 3100-02-2 (Va. App. 2/10/2004)

• Decision Date: 10 February 2004
• Docket Number: Record No. 3100-02-2.
• Citation: Widdifield v. Commonwealth, Record No. 3100-02-2 (Va. App. 2/10/2004) (Va. App. 2004)
• Court: Virginia Court of Appeals
• Parties: JENNIFER LEA WIDDIFIELD v. COMMONWEALTH OF VIRGINIA.

Page 1

Unpublished Opinion

JENNIFER LEA WIDDIFIELD v. COMMONWEALTH OF VIRGINIA.

Record No. 3100-02-2.

Court of Appeals of Virginia, Richmond.

February 10, 2004.

Appeal from the Circuit Court of Henrico County, Catherine C. Hammond, Judge.

Samuel P. Simpson, V (Montgomery & Simpson, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: Judges Frank, McClanahan and Senior Judge Coleman.

MEMORANDUM OPINION^*

JUDGE ELIZABETH A. McCLANAHAN.

Jennifer Lea Widdifield appeals an order of the Circuit Court of Henrico County revoking her suspended sentence and effectively imposing a period of incarceration exceeding her original two-year penitentiary sentence. On appeal, Widdifield contends that the trial court erred in not giving her credit for twelve months served in jail, thereby causing her to serve three years of incarceration for a two-year sentence. Failure to raise this issue in the trial court precludes our review on appeal. Consequently, I would not reach the merits of appellant's argument.

I. Background

On appeal, we view the facts in the light most favorable to the Commonwealth, the party prevailing below, together with all reasonable inferences fairly deducible therefrom. See Ortega v. Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000). On October 11, 2000 Widdifield was convicted for grand larceny pursuant to Code § 18.2-95.¹ On February 5, 2001, Widdifield was sentenced to a term of two years confinement in the state penitentiary, suspended for five years on the condition the defendant serve twelve months in jail, be of good behavior for five years and complete five years of supervised probation. The court appropriately credited Widdifield for the time spent in pre-trial confinement pursuant to Code § 53.1-187.

Widdifield served twelve months in the Henrico County jail and was released from custody in January 2002. In April 2002, a show cause order was issued against Widdifield as a result of her non-compliance with supervised probation. After a hearing on the probation violations, the court continued the case for three months. In July 2002, after receiving a report of her further violations of parole, the court issued a capias. When she failed to appear, the court set a hearing for October 24, 2002.

At the conclusion of the hearing, the trial court found Widdifield in violation of the terms of her probation and the conditions of her suspended sentence, and re-imposed her two-year prison sentence. The court entered a revocation order on October 28, 2002, which in pertinent part reads:

Whereupon, after taking into consideration all of the evidence and the argument of counsel, the Court Adjudges and Orders that the sentence imposed in this case on February 1, 2001 of confinement in the penitentiary of this Commonwealth for a term of two (2) years, the execution of which sentence was suspended for five (5) years on the condition the defendant serve (12) months in jail, is hereby revoked.

The appeal followed.

II. Procedural Bar

Rule 5A:18 states: "No ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." "`The main purpose of requiring timely specific objections is to afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.'" Ohree v. Commonwealth, 26 Va. App. 299, 307, 494 S.E.2d 484, 488 (1998) (quoting Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)). When such specific objections have not been made, this Court will not consider an argument on appeal that was not presented to the trial court. Id. at 308, 494 S.E.2d at 488 (citing Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)).

The transcript shows that the following exchange occurred at the conclusion of appellant's revocation hearing:

[THE COURT]: Based on all the matters brought to the Court's attention, the Court finds you in violation of the terms of your suspended sentence. The Court revokes the two years that were suspended. I'm revoking all the time and you are remanded to the custody of the Sheriff.

MR. SIMPSON: Judge she receives —

THE COURT: She'll have a credit for the capias time. Is that your question?

MR. SIMPSON: Does she receive credit for the 12 months she pulled as well?

THE COURT: No, because I gave her a two-year sentence suspended on the condition that she serve 12 months and she served that and there's still two years left.

DEFENDANT WIDDIFIELD: I serve two years?

THE COURT: Yes, I just checked the sentencing order to make sure.

MR. SIMPSON: I understand.

THE COURT: You can check it.

MR. SIMPSON: I'm not sure that's how it works but —

THE COURT: All right, go ahead.

MR. SIMPSON: Thank you.

The court's order read:

Whereupon, after taking into consideration all of the evidence and the argument of counsel, the Court Adjudges and Orders that the sentence imposed in this case on February 1, 2001 of confinement in the penitentiary of this Commonwealth for a term of two (2) years, the execution of which sentence was suspended for five (5) years on the condition the defendant serve (12) months in jail, is hereby revoked.

Therefore, the record in this case shows only that appellant's counsel queried whether appellant would receive credit for the twelve months she had already served imposed as a condition for the two-year sentence. In fact, in appellant's brief, counsel's actions are described as an "inquiry" and a "question."

After inquiry by defense counsel, the court ordered that defendant would receive no credit for the 12 months in jail already served in the case. [Appendix p. 36, ln. 24; Appendix p. 37, ln. 1-3] Defense counsel questioned the correctness of such an order, but the court took no further action, and the defendant was remanded. [Appendix p. 37, ln. 7-10].

(Emphasis added.) Such an inquiry or question does not expressly indicate the action that appellant wanted the trial court to take, her objection to the court's refusal to give her credit, or the grounds therefor. Thus, counsel's actions do not meet the requirements of either Code § 8.01-384(A) or Rule 5A:18.

With regard to an ends of justice exception, Widdifield never responded to the specific Rule 5A:18 objection argument made by appellee, much less raise an ends of justice argument. This Court will not consider, sua sponte, an ends of justice exception under Rule 5A:18. "In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has occurred . . . ." Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997) (citation omitted). Without even a mention of Rule 5A:18 or ends of justice, it is obvious that there is no affirmative showing of cause for invoking the rule. See Gelletly v. Commonwealth, 16 Va. App. 457, 460, 430 S.E.2d 722, 724 (1993); F.E. v. G.F.M., 35 Va. App. 648, 660 n.3, 547 S.E.2d 531, 537 n.3 (2001).

Because Widdifield's objection was not properly preserved, I would not reach the merits of her case.

Affirmed.

Frank, J., concurring, in part.

I concur with Judge McClanahan's decision in that it affirms the judgment of the trial court. However, as I believe appellant at trial sufficiently raised the issue regarding credit for time served, I address the merits of that issue.²

Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling . . . ." The purpose of the rule is to allow the trial court to consider the objection and to take corrective action that will "avoid unnecessary appeals, reversals and mistrials." Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992) (citation omitted). Formal exceptions to the court's rulings are not necessary as long as a party "makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor." Code § 8.01-384(A).

Here, as quoted in more detail in Judge McClanahan's opinion, when the trial court announced it was revoking the two years that had been suspended, appellant's counsel inquired, "Does [appellant] receive credit for the [twelve] months she pulled as well?" The trial court responded that appellant was not entitled to credit for the twelve months she served in jail because the court originally "gave her a two-year sentence suspended on the condition that she serve [twelve] months and she served that and there's still two years left." Appellant's counsel responded, "I'm not sure that's how it works . . . ." The trial court's revocation order specifically indicated that it "[took] into consideration all of the evidence and the argument of counsel."

Thus, appellant, through counsel, expressly indicated both the actions that she wanted the trial court to take and her disagreement with the court's refusal to give her credit for the twelve months she served in jail. Requiring appellant to object further, when the court indicated it would not give such credit, "would, in effect, recreate the requirement of noting an exception to a final adverse ruling of the trial judge." Martin v. Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992) (en banc). Counsel's question about whether appellant would receive credit for that time, coupled with his response, "I'm not sure that's how it works," when the trial judge ruled appellant was not entitled to credit, made clear what action was requested and was sufficient to preserve for appeal the request for credit. See Cuffee-Smith v. Commonwealth, 39 Va. App. 476, 480-81, 574 S.E.2d 294, 296 (2002) (holding an...