Reinke v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Elder and Kelsey
Argued at Chesapeake, Virginia

JAMES LEE REINKE
OPINION BY
v. Record No. 1034-06-1 JUDGE LARRY G. ELDER
MARCH 11, 2008
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GLOUCESTER COUNTY
William H. Shaw, III, Judge

Prescott L. Prince (Clarke & Prince, on brief), for appellant.

Alice T. Armstrong, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.

James Lee Reinke (appellant) appeals from the orders finding him in violation of the

terms of his suspended sentences for four counts of taking indecent liberties with a minor and

two counts of forcible sodomy. On appeal, he contends the trial court erred in concluding it

lacked authority to relieve him of the condition of the suspensions requiring him to pay

restitution and in “fail[ing] to find that grounds existed” to justify removing that condition. We

hold the trial court properly ruled that it lacked authority to modify the original restitution

requirement because it was a condition of the suspensions rather than a condition of probation.

Thus, the trial court properly held appellant responsible for the arrearage accruing from his

nonpayment pursuant to the terms of the original orders. Nevertheless, when the trial court

revoked and resuspended the previously suspended sentences, the trial court had the discretion to

determine anew what conditions should accompany those suspensions. Thus, we hold the trial

court erroneously ruled it lacked authority to entertain appellant’s motion to reduce or eliminate

the restitution prospectively. Accordingly, we affirm in part, reverse in part, and remand for
additional proceedings consistent with this opinion, including the correction of a clerical error in

one of the sentencing orders. 1

I.

BACKGROUND

On June 9, 2003, appellant was convicted in a bench trial for four counts of indecent

liberties and two counts of forcible sodomy. The victims were three of appellant’s four

stepdaughters, whom appellant and the girls’ mother, appellant’s wife, had raised.

Prior to sentencing, appellant explained to the court that his wife was having financial

problems and “was about to lose the [marital residence, titled in both names,] because she

couldn’t make the mortgage payment without [appellant’s] income.” When given an opportunity

to speak, appellant indicated to the court that he received a military allotment and stated as

follows:

I’m concerned about my wife and kids, how they will get by if I’m
not around. . . .

[They] haven’t moved back into the house yet, I’m pretty
sure. I think that is a money thing, because it has got oil and hot
water and propane gas for stove, and both of them are empty.
She’s got a broke down car that needs [to be] fixed. She doesn’t
make enough to do all of that. I want to be able to help her other
than just a house payment.

The trial court continued the matter to obtain additional information about appellant’s and his

wife’s financial situation, and at a subsequent hearing, the court engaged in the following

colloquy with appellant:

[THE COURT:] [Appellant,] we talked the other day, and I
thought you were very correct in saying that you would like to see
part of your retirement pay go to keep up the house payment for
your wife and your stepdaughters. Did I understand that correctly?

1
See infra notes 2 and 4 and accompanying text.
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 [APPELLANT:] Yes, sir, my wife and I had agreed on
that.

Appellant indicated that after making the house payment, “there’s $150 left over in his military

allotment, and he wanted that for himself.” The trial court responded, “You’re exactly right. So

it’s a very unique thing, your generosity, but I want to tell you your generosity has earned you

some substantial reduction in sentence that I have in mind . . . [b]ut it’s not going to be a free

ride.” The trial court imposed a total sentence of 14 years 5 months for one of the sodomy

counts but suspended 6 years 5 months. It sentenced appellant to serve 14 years 5 months for the

other sodomy conviction but suspended all of that time, and it sentenced him to 5 years for each

of the four indecent liberties convictions but suspended all 5 years of each of those sentences, as

well. Thus, appellant received a total active sentence of 8 years.

All six sentencing orders, entered October 9, 2003, contained identical language

suspending some or all of appellant’s sentences conditioned upon good behavior, supervised

probation, payment of court costs, and the following additional condition:

[Appellant] shall, during his period of incarceration, pay
an allotment of $1,150.00 per month, which shall be paid from his
airforce [sic] retirement, directly to his wife, and the balance of
$150.00 shall be retained by [appellant] for his personal use while
in prison. The said allotment shall be paid to [appellant’s] wife
for house payments, maintenance of said residence and for general
support of said wife and support of his [3 named] stepdaughters
. . . . This is the total amount due in Case Nos. CR03000072-00
through CR03000077-00.

(Emphases added).

Appellant appealed his convictions to the Virginia Court of Appeals and Supreme Court

without success. Appellant did not assign error to the restitution condition or the court’s

authority to impose it, and he made all payments due thereunder through April 2005.

In the spring of 2005, Mrs. Reinke entered into a contract to sell the marital residence.

“[T]he deed was signed by power of attorney and upon [appellant’s] notification that the home
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needed to be sold.” Mrs. Reinke received $33,000 from the sale of the home. Immediately after

Mrs. Reinke sold the home, appellant ceased making the monthly restitution payments of $1,150.

He first told her that he stopped making the payments because “he needed the money for a

lawyer, and then he told [her] that he wanted his half of the proceeds from [the sale of] the house

before he would pay [her] any more.”

In October 2005, the Commonwealth moved the court to issue a rule to appellant “to

show cause, if any he can, why the sentences previously suspended” on his four indecent liberties

and two sodomy convictions “should not be revoked, and such other punishment imposed as the

Court shall deem appropriate, because [appellant] has failed to pay restitution.” (Emphasis

added). Before the hearing on the rule to show cause was held, appellant moved the court to

reconsider his sentences, claiming the court had lacked authority to order him to pay Mrs. Reinke

$1,150 per month from his allotment and, thus, that this portion of his sentences was void. The

court noted that appellant “agreed to the amount and source of the restitution.” It held that,

“[a]ssuming for argument that the sentence imposed by the trial judge was erroneous, the

judgment was voidable only, and not void. The terms of the sentence were not challenged on

direct appeal and cannot now be attacked collaterally.”

At a hearing on April 3, 2006, the Commonwealth presented evidence showing

appellant’s failure to pay Mrs. Reinke $1,150 per month as required by the sentencing orders.

Appellant claimed the requirement was a term of probation and that because the order stated his

probation did not commence until he was released from incarceration, a finding that he violated

probation was premature. He also asked the court “to entertain a motion to reduce the support

since the home has been sold.”

The trial court ruled the restitution payment was “a further condition of a suspended

sentence” and was “not a condition of probation.” The trial court also ruled the order requiring

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the monthly payment was “a final order” and that it lacked the authority to modify or eliminate

the required payment.

Based on its findings and the recommendation of the Commonwealth, the trial court

revoked the six suspended sentences but resuspended them subject to “the same terms and

conditions in the original sentencing order[s]” and the additional condition that appellant “satisfy

the arrearage . . . in the amount of $500.00 per month beginning 60 days after his release from

incarceration until said arrearage is satisfied.” The court then entered orders dated April 4, 2006,

reflecting the revocation and resuspension of those sentences. 2

Appellant filed a petition for appeal, contending the order requiring the payment of

restitution was void and that, even if it was not void, the trial court erred in failing to find that

grounds existed to reduce or terminate the payment. This Court denied the petition in part,

concluding, based on Code § 19.2-303 and the decision in Hartless v. Commonwealth, 29

Va. App. 172, 510 S.E.2d 738 (1999), that the trial court had authority to fix reasonable terms

and conditions for the suspension of execution of a sentence. This Court also concluded that if

the trial court erred in fixing the challenged conditions, that error was voidable rather than void

and, thus, not subject to collateral attack. This Court granted appellant’s petition only insofar as

it claimed the trial court “erred in denying appellant’s motion to amend the condition of

appellant’s suspended sentence providing for monthly payments of support to his wife.”

2
As to the conviction for which appellant had previously been sentenced to serve 8 years
of active incarceration with an additional 6 years 5 months suspended, Docket No.
CR03000076-00, the court’s April 4, 2006 order erroneously stated that “all” “14 years 5 years
[sic]” had been “suspended” at the hearing of October 2, 2003. Each of the April 4, 2006 orders
indicated that “defendant is remanded to jail,” but none of the orders contained a pronouncement
of an active sentence under which he was being held. Neither party has raised this issue, but
based on the inconsistency between the court’s orders of October 9, 2003, and April 4, 2006, we
remand for correction of this apparent clerical error. See Code § 8.01-428(B); Tatum v.
Commonwealth, 17 Va. App. 585, 592, 440 S.E.2d 133, 138 (1994).
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 II.

ANALYSIS

Appellant claims this Court’s determination that the trial court “has the authority to fix

reasonable terms and conditions for the suspension of execution of a sentence” is “clear[ly]” a

“determin[ation] that the ‘restitution’ Order is, in essence, a condition of probation” and, thus,

that it is subject to be modified or amended pursuant to Code § 19.2-304 and our holding in

McFarland v. Commonwealth, 39 Va. App. 511, 574 S.E.2d 311 (2002). 3 We hold the evidence

supports the trial court’s contrary conclusion that the payment was a condition of appellant’s

suspended sentences rather than a condition of probation and, thus, that the trial court correctly

concluded it lacked authority to modify the condition pursuant to Code § 19.2-304. Thus, the

trial court properly held appellant responsible for the arrearage accruing from his nonpayment

pursuant to the terms of the original order. However, we conclude pursuant to Code § 19.2-306

that in revoking the sentences and resuspending them, the trial court in fact had the discretion to

impose different conditions on the resuspension of those sentences. Because the trial court

erroneously concluded that, upon resuspension, it lacked authority to remove the condition

requiring the payment of restitution prospectively, we reverse in part and remand for additional

proceedings consistent with this opinion.

As the Supreme Court has observed,

Code § 19.2-303 permits the trial court, after conviction, to
“suspend imposition of sentence or suspend the [execution of]
sentence in whole or part and in addition [to] place the accused on

3
Appellant, like McFarland, 39 Va. App. at 515 n.1, 574 S.E.2d at 313 n.1, argues only
that Code § 19.2-304 permitted the trial court to modify the restitution order; he does not allege a
factual predicate for the application of Code § 19.2-303, which permits “modif[ication of] the
sentence imposed” or “the unserved portion of such a sentence” under certain circumstances
where “a person [has been] sentenced to jail upon conviction of a misdemeanor or a felony . . . at
any time before the sentence has been completely served” or where “a person has been sentenced
for a felony to the Department of Corrections but has not actually been transferred to a receiving
unit of the Department.” Code § 19.2-303 (emphasis added).
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 probation.” (Emphasis added.) Section 19.2-304 deals with
probation only and permits the court to increase or decrease the
period of probation or modify any condition of probation. . . .
[Code § 19.2-303] also permits the court under specified
circumstances to suspend or otherwise modify the unserved portion
of a sentence and place the defendant on probation. . . .

Consequently, we see the statutes as distinguishing between
a suspension, . . . on the one hand, and probation, on the other
hand.

Grant v. Commonwealth, 223 Va. 680, 685, 292 S.E.2d 348, 350 (1982) (emphasis added).

Probation is an option available to the sentencing court as one of multiple “reasonable terms and

conditions” the court has “the authority to fix . . . for the suspension of execution of a sentence.”

Hartless, 29 Va. App. at 175, 510 S.E.2d at 739.

“To be effective, probation must be concurrent with a coordinate
term of suspension of sentence,” [Hartless, 29 Va. App. at 175, 510
S.E.2d at 739,] but a court’s authority to modify the terms of
probation pursuant to Code § 19.2-304 does not give it the
authority to modify any other terms upon which the suspension of
a sentence was conditioned. Thus, Rule 1:1 governs. Subject to
limited exceptions not applicable here, that rule 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.”

McFarland, 39 Va. App. at 516, 574 S.E.2d at 313.

We applied these principles in McFarland, in which the defendant desired to have

“remove[d] from the terms of his suspended sentence the condition that he keep the peace and be

of good behavior.” Id. at 516, 574 S.E.2d at 313-14. We noted the trial court had suspended the

defendant’s sentences and fines based on four express conditions, including that he “‘keep the

peace[ and] be of good behavior’” and that he “undergo ‘supervised probation.’” Id. at 516, 574

S.E.2d at 314. When “[t]he trial court subsequently terminated [the defendant’s] supervised

probation[] as it was authorized to do pursuant to Code § 19.2-304,” it conditioned that

termination “on [his] ‘future good behavior.’” Id. Thus, we noted “the requirement that [the
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defendant] be of good behavior [not only] remained a condition of the suspension of his sentence

[but] became a condition of the termination of his participation in supervised probation, as well.”

Id. at 517, 574 S.E.2d at 314. We ultimately held in McFarland that the trial court “was

authorized pursuant to Code § 19.2-304 to remove the good behavior requirement as a condition

of the termination of [the defendant’s] probation” but that, because “more than twenty-one days

[had passed since] the [trial] court’s entry of its [original] sentencing order,” “it lacked

jurisdiction to alter the good behavior and related provisions imposed as conditions of the

suspension of [the defendant’s] sentence.” Id.

These same principles apply in appellant’s case insofar as appellant’s original suspended

sentences are concerned. In sentencing appellant following his six convictions, the trial court

suspended some or all of each sentence upon four express conditions. Those conditions required

that appellant “be of good behavior . . . for 25 years”; that he be “placed on supervised probation

for a period of 3 years, to commence with his release from confinement”; that he “pay court costs

of $355.00”; and that, “during his period of incarceration,” he “shall . . . pay an allotment of

$1,150.00 per month . . . directly to his wife . . . for house payments, maintenance of said

residence, and for general support of said wife and support of his stepdaughters,” the victims of

the crimes for which he was convicted. Thus, in appellant’s case, the condition of suspension

requiring supervised probation was separate and distinct from the condition of suspension

requiring him to make monthly payments of restitution. The fact that the sentencing orders

expressly stated his probation was “to commence with his release from confinement” whereas

the restitution requirement applied “during his period of incarceration” further highlights the fact

that these terms were two separate conditions of the suspension of his sentences.

The fact that the clerk of the trial court, in issuing the form rule to show cause order to

appellant, described the reason for the rule to be “to show cause why [appellant] should not be

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found in violation of the terms and conditions of probation” does not require a different result.

The Commonwealth, in its original filing, moved the trial court to issue a rule to show cause

“why the sentences previously suspended . . . should not be revoked . . . because [appellant] has

failed to pay restitution.” (Emphases added). By order entered October 14, 2005, the trial court

issued the requested rule and ordered the clerk to serve a copy of the order on appellant. Finally,

following a hearing at which appellant argued the restitution requirement was a condition of

probation, the trial court expressly ruled the restitution payment was a condition of the original

suspended sentences rather than a condition of probation. Thus, appellant had notice that the

Commonwealth viewed the restitution requirement as a condition of suspension and an

opportunity to argue a contrary position before the trial court.

Because the restitution requirement was a condition of the original suspensions of

appellant’s sentences and appellant asked the court to modify that condition more than

twenty-one days after its imposition by orders entered October 9, 2003, the trial court correctly

ruled that Rule 1:1 prevented it from modifying the restitution requirement in those orders.

Accordingly, the trial court also correctly ruled that appellant was required to pay the restitution

arrearage. However, appellant’s case is distinguishable from McFarland on other grounds. In

McFarland, the defendant had not committed any violation of the terms of the suspension and

came before the court voluntarily to request removal of the conditions of the suspension of

sentence that were then in effect. McFarland, 39 Va. App. at 516-17, 574 S.E.2d at 313-14; see

also Russnak v. Commonwealth, 10 Va. App. 317, 392 S.E.2d 491 (1990) (holding where the

court did not revoke the suspended sentence, it lacked authority to modify the sentencing order

that had become final by adding a condition of probation). In appellant’s case, by contrast,

appellant was brought before the court based on allegations that he violated the terms of the

suspension of his sentences, and the court revoked and resuspended the previously suspended

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sentences, subject to the conditions originally imposed and the additional conditions involving

payment of his restitution arrearage in monthly installments commencing upon his release from

incarceration.

Under Code § 19.2-306(C), a trial court “find[ing] good cause to believe that the

defendant violated the terms of suspension” “shall revoke the suspension” but “may again

suspend all or any part of this sentence and may place the defendant on terms and conditions or

probation.” The statutory language contains no indication that any limitations exist on the

prospective terms and conditions the court may impose upon revocation and resuspension or that

the trial court must reimpose the same terms and conditions imposed on the original suspensions.

Instead, the language of subsection (C) makes clear that revocation of a previously suspended

sentence and the resuspension of some or all of that previously suspended sentence is a new

sentencing event, restricted only by limitations that it may not extend the length of the original

sentence or the length of the period of suspension and, as is the case with an original suspension,

that any conditions of suspension be reasonable. See Nuckoles v. Commonwealth, 12 Va. App.

1083, 1086, 407 S.E.2d 355, 356 (1991) (setting out limitations on conditions that may be

imposed when a defendant is originally given a suspended sentence); see also Robertson v.

Superintendant of the Wise Corr. Unit, 248 Va. 232, 236, 445 S.E.2d 116, 118 (1994) (noting

that Code § 19.2-306 does not give a court “authority to lengthen the period of incarceration”

once the sentence imposed on the underlying charge becomes final).

Here, when the trial court revoked appellant’s suspended sentences, the court had

authority pursuant to Code § 19.2-306(C) to determine anew what conditions should accompany

those suspensions. Thus, the trial court’s ruling that it lacked authority to remove the restitution

condition of these sentences was error. Instead, the trial court was required to exercise its

discretion to determine what conditions to impose on resuspension. In exercising that discretion

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on remand, the trial court should take into account all relevant circumstances, including, inter

alia, both the conditions that existed at the time of the original suspension of sentence, including

the role the restitution condition played in the court’s original formulation of the sentences, as

well as the change in circumstances alleged to have occurred since that time.

III.

For these reasons, we hold the trial court properly ruled it lacked authority to modify the

original restitution requirement because it was a condition of the suspensions rather than a

condition of probation. The trial court also properly held appellant responsible for the arrearage

accruing from his nonpayment pursuant to the terms of the original orders. However, we

conclude that when the trial court revoked and resuspended the previously suspended sentences,

the trial court had the discretion to determine anew what conditions should accompany those

suspensions. Thus, we hold the trial court erroneously ruled it lacked authority to entertain

appellant’s request to reduce or eliminate the support on a prospective basis “since the home has

been sold.” Accordingly, we affirm in part, reverse in part, and remand for additional

proceedings consistent with this opinion, including the correction of a clerical error in the

April 4, 2006 order for Circuit Court Docket No. CR03000076-01, which erroneously indicates

all of the sentence imposed for that offense was suspended. 4

Affirmed in part,
reversed in part,
and remanded.

4
See supra note 2 and accompanying text. The trial court’s order of October 9, 2003 for
the specified offense clearly indicates the court suspended only 6 years 5 months of the sentence
of 14 years 5 months, leaving appellant with 8 years to serve.
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