Tuesday 12th
April, 2005.
Demetrius Lamont Neely, Appellant,
against Record No. 2325-03-1
Circuit Court No. CR97-2456
Commonwealth of Virginia, Appellee.
Upon a Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank,
Humphreys, Clements, Felton, Kelsey, McClanahan and Haley
Gregory B. Turpin for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief), for appellee.
By published opinion dated November 9, 2004, a divided panel of this Court reversed the
judgment of the trial court. See Neely v. Commonwealth, 44 Va. App. 239, 604 S.E.2d 733 (2004). We
stayed the mandate of that decision and granted a rehearing en banc, 44 Va. App. 535, 605 S.E.2d 777
(2004).
Upon rehearing en banc, it is ordered that the stay of the November 9, 2004 mandate is lifted and
the judgment of the trial court is reversed and remanded to the trial court for the reasons set forth in the
majority panel opinion.
Chief Judge Fitzpatrick, Judges Bumgardner, Felton and Haley dissent for the reasons set forth in
the panel dissent. See 44 Va. App. at 244-47, 604 S.E.2d at 735-36.
It is ordered that the trial court allow counsel for the appellant an additional fee of $200 for
services rendered the appellant on the rehearing portion of this appeal, in addition to counsel’s costs and
necessary direct out-of-pocket expenses.
This order shall be published and certified to the trial court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
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Tuesday 14th
December, 2004.
Demetrius Lamont Neely, Appellant,
against Record No. 2325-03-1
Circuit Court No. CR97-2456
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner,
Frank, Humphreys, Clements, Felton, Kelsey and McClanahan
On November 23, 2004 came the appellee, by the Attorney General of Virginia, and filed a
petition praying that the Court set aside the judgment rendered herein on November 9, 2004, and grant a
rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered
herein on November 9, 2004 is stayed pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Senior Judge Coleman
Argued at Chesapeake, Virginia
DEMETRIUS LAMONT NEELY
OPINION BY
v. Record No. 2325-03-1 JUDGE JAMES W. BENTON, JR.
NOVEMBER 9, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
Gregory B. Turpin for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief), for appellee.
The sole issue presented by this appeal is whether the circuit court judge had jurisdiction
under Code § 19.2-303 to consider a defendant’s motion to modify his sentence while the
defendant was in the custody of the Federal Bureau of Prisons. We hold that the judge did have
jurisdiction because the evidence did not establish that the defendant had been transferred to the
custody of the Virginia Department of Corrections.
I.
In 1997, a judge of the circuit court convicted Demetrius L. Neely, upon his guilty plea,
for possession of cocaine. The judge sentenced Neely to two years in prison, suspended the
prison sentence in its entirety, and ordered supervised probation. During Neely’s period of
probation, a probation officer initiated a revocation proceeding because Neely had been arrested
on federal charges of bank robbery and use of a firearm. After Neely pled guilty and was
sentenced in federal court, a judge of the circuit court revoked Neely’s suspended sentence and
imposed the prison sentence of two years “to run consecutively with all other sentences.”
Almost four years after the circuit judge revoked the suspended sentence, Neely filed a
motion in the circuit court seeking a modification of his sentence. Neely, who was in federal
custody, indicated that “a detainer has been placed against him in order that he may not be
released before fulfilling his obligation to the Commonwealth of Virginia,” and he alleged
circumstances that he believed warranted a modification of his sentence. The trial judge’s order
found that Neely was “in the custody of the Department of Corrections” and ruled, therefore, that
“the court, pursuant to Rule 1:1 does not have jurisdiction to hear this matter.” Neely appeals
from this ruling.
II.
In pertinent part, Rule 1:1 of the Rules of the Supreme Court of Virginia 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 legislature, however, has statutorily enacted several
“limited exceptions to the preclusive effect of Rule 1:1.” Davis v. Mullins, 251 Va. 141, 149,
466 S.E.2d 90, 94 (1996). “Code § 19.2-303 is one of those exceptions.” Ziats v.
Commonwealth, 42 Va. App. 133, 138, 590 S.E.2d 117, 120 (2003). That statute provides, in
pertinent part, as follows:
If 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, the court which heard the case, if it appears
compatible with the public interest and there are circumstances in
mitigation of the offense, may, at any time before the person is
transferred to the Department, suspend or otherwise modify the
unserved portion of such a sentence. The court may place the
person on probation for such time as the court shall determine.
Code § 19.2-303.
Neely argues that he had “not actually been transferred to a receiving unit of the
Department [of Corrections].” Id. Thus, he contends the exception to Rule 1:1 that is contained
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in Code § 19.2-303 is applicable to his motion to modify his sentence. The Commonwealth
argues, however, that a literal reading of the statute “potentially would extend a trial court’s
jurisdiction for several decades.” Citing Ragan v. Woodcroft Village Apartments, 255 Va. 322,
327-28, 497 S.E.2d 740, 743 (1998), the Commonwealth also argues that the trial judge’s
inability to order a prisoner’s transfer from the place of his federal confinement to the state court
for a hearing renders a literal reading of the statute “a vain and useless thing.” Thus, the
Commonwealth contends that the General Assembly intended the exception to apply only to
persons confined in jail and “surely did not intend to sanction such an ineffectual, peculiar
arrangement.”
Initially, we note that the trial judge made a notation that Neely “is no longer in local
jail,” and he informed Neely “that once an individual is in a State Correctional Facility I am
powerless to act after twenty-one (21) days from the date of conviction.” The Commonwealth
concedes, however, that Neely is in a federal prison. Indeed, the record establishes that Neely
was on probation for his felony conviction when he was arrested and taken in custody on federal
charges, and he was not in the Department’s custody. No evidence in the record establishes that
Neely has ever been transferred from the federal prison system to custody of the Department.
The principle is well established that “[w]here the legislature has used words of a plain
and definite import [in a statute] the courts cannot put upon them a construction which amounts
to holding the legislature did not mean what it has actually expressed.” Watkins v. Hall, 161 Va.
924, 930, 172 S.E. 445, 447 (1934). See also Williams v. Commonwealth, 265 Va. 268, 271,
576 S.E.2d 468, 470 (2003) (holding that “[w]hen the language of a statue is unambiguous,
courts are bound by the plain meaning of that language and may not assign a construction that
amounts to holding that the General Assembly did not mean what it actually has stated”).
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By its express terms, Code § 19.2-303 permits the trial court, in
cases where the defendant “has been sentenced for a felony to the
Department of Corrections but has not actually been transferred to
. . . the Department,” to retain jurisdiction beyond the
twenty-one-day limit of Rule 1:1 to “suspend or otherwise modify
the unserved portion of such a sentence.”
Patterson v. Commonwealth, 39 Va. App. 610, 617, 575 S.E.2d 583, 586 (2003).
Although Neely was not in a local jail, Code § 19.2-303 does not premise jurisdiction to
modify a sentence upon a defendant’s presence in a local jail. The relevant provision of Code
§ 19.2-303 expressly confers jurisdiction when the defendant “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 plainly and unambiguously provides the trial judge with
jurisdiction to consider Neely’s motion, and it needs no interpretative construction.
We have no basis upon which to conclude that the legislature did not mean what it
unambiguously wrote in Code § 19.2-303. If a defendant has not been transferred to the custody
of the Department after conviction, the passage of time is not a factor that impacts upon the trial
judge’s jurisdiction to exercise his statutory grant of power under Code § 19.2-303. See
Robertson v. Superintendent of the Wise Corr. Unit, 248 Va. 232, 234-35, 445 S.E.2d 116, 117
(1994) (noting that the trial judge retained jurisdiction after the defendant had not been
transferred to the Department after twelve months). The legislative authority to consider the
motion is not time-based but, rather, is statutorily defeated only by the transfer of the defendant
to the Department. Although the legislature could have chosen a different policy, clearly it did
not do so. Moreover, we have held that “[t]he purposes of Code § 19.2-303 are rehabilitative in
nature,” Esparza v. Commonwealth, 29 Va. App. 600, 607, 513 S.E.2d 885, 888 (1999), and
should be construed liberally in order to provide trial judges with the means of encouraging the
defendant’s rehabilitation. Patterson, 39 Va. App. at 616, 575 S.E.2d at 586. By limiting the
trial judge’s jurisdiction to those cases in which the defendant “has not actually been transferred
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to a receiving unit of the Department,” Code § 19.2-303, the legislature left in place a variety of
custodial circumstances in which the trial judge was at liberty to suspend or otherwise modify
the unserved portion of a defendant’s sentence “if it appears compatible with the public interest
and there are circumstances in mitigation of the offense.” Id.1
For these reasons, we hold that the evidence does not support the trial judge’s finding that
Neely was “in a State Correctional Facility,” and we further hold that the trial judge erred in
ruling that Rule 1:1 deprived him of jurisdiction to entertain Neely’s motion to modify his
sentence. We, therefore, reverse the decision and remand to the trial judge for consideration of
Neely’s motion pursuant to the factors contained in Code § 19.2-303.
Reversed and remanded.
1
The Commonwealth argues without any supporting authority that, by issuing a detainer
“to insure that Neely would be put in the state correctional system upon his release,” the
Department rendered Neely “in the custody of the Department.” We find no authority to support
that assertion, and, furthermore, we note that Code § 19.2-303 confers jurisdiction upon the trial
judge when the defendant “has not actually been transferred to . . . the Department.” (Emphasis
added.)
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Coleman, J., dissenting.
The trial judge ruled that he lacked jurisdiction pursuant to Rule 1:1 to consider appellant’s
motion to modify his penitentiary sentence almost four years after the suspended sentence was
revoked and imposed. In my opinion the trial judge ruled correctly. Therefore, I would affirm the
judgment of the trial court. Accordingly, I respectfully dissent from the majority’s decision.
Under familiar principles, penal statutes must be strictly construed
against the Commonwealth. However, when statutory construction
is required, we construe a statute to promote the end for which it is
enacted, if such an interpretation can reasonably be made from the
language used. Thus, a statute should be read to give reasonable
effect to the words used “and to promote the ability of the
enactment to remedy the mischief at which it is directed.” “Where
a particular construction of a statute will result in an absurdity,
some other reasonable construction which will not produce the
absurdity will be found.”
Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995).
The majority construes and applies Code § 19.2-303 so broadly that the holding essentially
abolishes the preclusive effect of Rule 1:1 by allowing courts to modify sentences in all criminal
convictions without any time limitation except when a defendant has been actually transferred to a
receiving unit of the Department of Corrections. In my opinion, the majority’s construction of Code
§ 19.2-303 results in criminal convictions that should otherwise be final remaining open to
modification despite Rule 1:1. The majority’s holding does not promote the end for which the
statute was intended.
As the majority notes, Code § 19.2-303 creates an exception to Rule 1:1, however, in my
opinion, the exception only applies to allow a judge to modify a sentence where the prisoner
remains in the local jail and under the control of the court. The operative language of the statute,
“but has not been transferred to a receiving unit” implies that the prisoner is in the local jail
awaiting transfer. (Emphasis added.) In other words, underlying Code § 19.2-303 is the
presumption that the prisoner is awaiting transfer to the Department of Corrections from the local
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jail and that the trial court can still exercise jurisdiction over the prisoner beyond the twenty-one
days prescribed in Rule 1:1. This view that Code § 19.2-303 applies only where the prisoner is in
the local jail finds support in numerous cases that have analyzed Code § 19.2-303 on other grounds.
In Esparza v. Commonwealth, 29 Va. App. 600, 513 S.E.2d 885 (1999), we stated,
[i]n sum, we hold that Code § 19.2-303 invests courts with
discretionary authority to modify a sentence post-conviction in all
felony cases, including those in which the defendant has been
sentenced pursuant to a plea agreement so long as the defendant is
in the local jail and has not been delivered to the Department of
Corrections.
Id. at 608, 513 S.E.2d at 889 (emphasis added). Similarly, in Rice v. Virginia Sate Bar, 267 Va.
299, 592 S.E.2d 643 (2004), the Court noted that “[p]ursuant to Code § 19.2-303, [a] sentence
reduction was possible only so long as [the prisoner] remained in the local jail.” Id. at 299, 592
S.E.2d at 644 (emphasis added). In Ziats v. Commonwealth, 42 Va. App. 133, 590 S.E.2d 117
(2003), the issue of jurisdiction beyond the twenty-one days turned on “[w]hether Ziats was in the
custody of the local sheriff, and not in the custody of the DOC . . . .” Id. at 139, 590 S.E.2d at 120
(emphasis added). See also Patterson v. Commonwealth, 39 Va. App. 610, 619, 575 S.E.2d 583,
587 (2003) (distinguishing Robertson v. Supervisor of Wise Correctional Unit, 248 Va. 232, 445
S.E.2d 116 (1994), noting that Robertson “remained in the local jail” when the trial court modified
his sentence beyond the twenty-one days (emphasis added)).
Neely made a motion for the trial court to reconsider his sentence almost four years after the
court had entered the final order revoking his previously suspended sentence. At the time, he was in
federal prison in Virginia. The majority’s view that the court had the authority to modify Neely’s
sentence pursuant to Code § 19.2-303 almost four years after the court had imposed the sentence,
only because Neely had “not actually been transferred to the Department” of Corrections, when he
was not in the local jail and, thus, not before the court would allow prisoners who are being held in
other jurisdictions with unserved sentences in Virginia to require courts to reconsider their sentences
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regardless of how much time elapsed. Such a result enlarges the exception to Rule 1:1 far beyond
what was intended and could well impose an unnecessary burden upon trial courts.
Therefore, I would affirm the judgment of the trial court because, in my opinion, the trial
court lost jurisdiction twenty-one days after entry of the order revoking Neely’s suspended sentence.
I respectfully dissent.
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