Present: All the Justices
ATIF CHARLES
v. Record No. 041919 OPINION BY JUSTICE ELIZABETH B. LACY
June 9, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether participation in the
Detention Center Incarceration Program (the Program), Code
§ 19.2-316.2, is incarceration and whether a probationer is
entitled to credit for time served in the Program when his
probation is later revoked.
Facts
On October 16, 1997, Atif A. Charles was sentenced to
five years imprisonment with four years suspended following
his conviction for possession of heroin with the intent to
distribute, under Code § 18.2-248. After serving his one-year
active sentence, Charles was placed on probation. When he
violated conditions of probation, the trial court revoked the
suspended sentence, resuspended the sentence and placed
Charles on probation. One condition of Charles' second
probation was that he enter and complete the Program. Charles
completed the Program in five months but then violated other
conditions of his probation. The trial court revoked his
second probation and imposed the unserved four years of his
original five-year sentence.
Charles appealed to the Court of Appeals of Virginia,
arguing that his four-year sentence should have been reduced
by the five months he served in the Program. Conceding that
he had not raised this issue in the trial court as required by
the contemporaneous objection rule, Rule 5A:18, Charles argued
that the matter should be considered by the Court of Appeals
under the ends of justice exception to that Rule. The Court
of Appeals declined to apply the ends of justice exception,
finding that participation in the Program was a condition of
probation, not incarceration. Charles v. Commonwealth, No.
0616-03-1, slip op. at 5-6 (Va. Ct. App. July 20, 2004).
Furthermore, construing Code § 19.2-316.2, the Court of
Appeals determined that whether participation in the Program
should be credited against an outstanding sentence was a
matter within the trial court's discretion. Id., slip op.
at 7. We awarded Charles an appeal.
Discussion
Charles argues that the Court of Appeals erred in
refusing to apply the ends of justice exception because his
participation in the Program was incarceration and, by failing
to provide credit for that period of incarceration, the trial
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court effectively altered the sentence imposed in his October
16, 1997 sentencing order, a final order under Rule 1:1.*
Rule 5A:18, like our Rule 5:25, allows an appellate court
to consider a matter not preserved by objection in the trial
court "to attain the ends of justice." Application of the
ends of justice exception is appropriate when the judgment of
the trial court was error and application of the exception is
necessary to avoid a grave injustice or the denial of
essential rights. Cooper v. Commonwealth, 205 Va. 883, 889,
140 S.E.2d 688, 693 (1965). In reviewing the Court of
Appeal's judgment, we begin by determining whether that Court
was correct in holding that there was no error in the trial
court's judgment. Tucker v. Commonwealth, 268 Va. 490, 493,
604 S.E.2d 66, 67-68 (2004).
A. Trial Court Error
Participation in the Program as Incarceration
The Commonwealth argues, and the Court of Appeals held,
that, pursuant to Code § 19.2-316.2, participation in the
Program is a condition of probation and therefore such
participation is not incarceration. Designating an activity
as an authorized condition of probation, however, is not a
description of the nature of the activity. Indeed, the
*
Unless otherwise provided by statute, see e.g., Code
§ 8.01-428, Rule 1:1 prohibits the modification of a final
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Commonwealth acknowledges this fact by suggesting that
additional evidence is necessary in this case to determine
whether conditions of the Program "are strongly similar to
traditional incarceration or whether they more closely
resemble some lesser form of restraint." Additional evidence
is not required, as the Commonwealth suggests, because the
statutes addressing the Program are dispositive of the issue
in this case.
Code § 53.1–67.8 authorizes the Department of Corrections
to "maintain a system of residential detention centers to
provide a highly structured, short-term period of
incarceration for individuals committed to the Department
under the provisions of § 19.2-316.2" (emphasis added). Code
§ 19.2-316.2 specifically labels the program as an
"incarceration" program; it refers to "facilities available
for confinement," release from "confinement," and a "detention
center incarceration program" that required "more security or
supervision" than other programs. We do not consider these
references to "incarceration" to be inadvertent; by describing
the Program in this manner, the General Assembly has
determined that participation in the Program is incarceration.
Accordingly, we hold that Charles was incarcerated when
he participated in the Program. Therefore, when Charles'
order more than 21 days after the date of entry.
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second probation was revoked, he had been incarcerated for one
year and five months. By sentencing him to four years
imprisonment, the trial court added five months incarceration
to Charles' original five-year sentence.
Credit for Time Served in the Program
We now consider whether the Court of Appeals' correctly
held that the decision to grant Charles credit for the period
of time he served in the Program was a matter of trial court
discretion. The Court based this holding on its construction
of Code § 19.2-316.2. Subsection (B)(3) of that section
specifically directs the trial court not to credit time spent
in the Program to parolees, but the statute is silent with
regard to the treatment of such time for probationers. The
Court of Appeals construed the General Assembly's silence in
this regard as an affirmative election to place the crediting
decision in the discretion of the trial court and concluded
that, in this case, the trial court did not abuse its
discretion in refusing to grant Charles credit for the time he
served in the Program. Charles, slip op. at 9, 11.
We disagree with the Court of Appeals' construction of
the statute and its conclusion. Rule 1:1 and long standing
case law applying that rule preclude a trial court from
entering a second sentencing order altering an original
sentencing order that has become final. Robertson v.
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Superintendent of the Wise Correctional Unit, 248 Va. 232,
236, 445 S.E.2d 116, 118 (1994); Conner v. Commonwealth, 207
Va. 455, 457, 150 S.E.2d 478, 479 (1966). The policy of
finality contained in Rule 1:1 is not absolute, however. The
General Assembly has enacted various exceptions to this
policy. See, e.g., Code § 19.2-303 (court may modify unserved
portion of sentence at any time before defendant is
transferred to Department of Corrections); Code § 8.01-428
(court may modify final order in certain listed
circumstances).
Code § 19.2-612(B)(3) provides an exception to Rule 1:1.
By denying a parolee credit for time incarcerated during the
Program, the General Assembly has authorized a trial court to
enter a second sentencing order upon revocation of parole that
extends the length of incarceration imposed by the original
sentencing order. The absence of such a provision for
probationers indicates that the General Assembly knew that the
trial court could not enter a second sentencing order that
altered a sentencing order that had become final under Rule
1:1 and did not intend to alter the application of that Rule.
Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869
(2001) (legislature presumed to be familiar with existing
rules and case law when enacting legislation).
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In the absence of any legislative exception to Rule 1:1,
the trial court did not have the authority or the discretion
to enter a second sentencing order that extended the period of
incarceration beyond that imposed in Charles' October 1999
final sentencing order. See Robertson, 248 Va. at 236, 445
S.E.2d at 118. Accordingly, the Court of Appeals erred in
holding that Code § 19.2-316.2 vested the trial court with the
discretion to grant or deny Charles credit for the time he
served in the Program.
B. Grave Injustice
Invoking the ends of justice exception to the
contemporaneous objection rule requires a determination not
only that there was error in the judgment of the trial court
but also that application of the exception is necessary to
avoid a grave injustice. The latter predicate is also met in
this case.
In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509
(1973), this Court considered whether a trial judge could
shorten the sentence suggested by the jury because the jury's
sentence exceeded that allowed by law. We stated:
Where the sentence imposed is in excess of that
prescribed by law, that part of the sentence which
is excessive is invalid. Crutchfield v.
Commonwealth, 187 Va. 291, 46 S.E.2d 340 (1948). A
sentence in excess of one prescribed by law is not
void ab initio because of the excess, but is good
insofar as the power of the court extends, and is
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invalid only as to the excess. Royster v. Smith,
195 Va. 228, 77 S.E.2d 855 (1953).
Id. at 305, 199 S.E.2d at 510-11. Therefore, that portion of
Charles' sentence beyond the five years imposed in the final
sentencing order is void. Denying Charles his liberty on the
basis of a void sentence would impose a grave injustice upon
him. The application of the ends of justice exception is,
therefore, fully justified in this case.
Conclusion
In conclusion, we hold that participation in the
Detention Center Incarceration Program is incarceration. Even
though such incarceration is served as a condition of
probation, it cannot be used upon revocation of probation to
enlarge the sentence imposed in a sentencing order that has
become final under Rule 1:1. Therefore, to achieve the ends
of justice, we will reverse the judgment of the Court of
Appeals and remand this case with instructions to remand the
case to the trial court for entry of an order consistent with
this opinion.
Reversed and remanded.
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