Patterson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Clements
Argued at Richmond, Virginia

JOHN PAUL PATTERSON
OPINION BY
v. Record No. 2446-01-2 JUDGE JEAN HARRISON CLEMENTS
JANUARY 28, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge

Frank K. Friedman (Daniel S. Brown; Woods,
Rogers & Hazlegrove, P.L.C., on briefs), for
appellant.

Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

John Paul Patterson appeals a decision of the trial court

denying his request for termination of the period of suspension

of his sentence. On appeal, he contends the trial court erred in

concluding it lacked jurisdiction under Rule 1:1 to modify his

sentence, as requested, more than twenty-one days after entry of

the sentencing order. Finding no error, we affirm the trial

court's judgment.

I. BACKGROUND

The relevant facts and procedural posture of this case are

not in dispute. Patterson pled guilty in the court below to

indictments for possession of cocaine and possession of psilocyn

(illegal mushrooms). Both offenses occurred on February 20,

1990, when Patterson was nineteen years old and a freshman at
Randolph-Macon College. On May 21, 1990, the trial court

accepted Patterson's pleas of guilty and convicted him on both

charges.

By sentencing order entered July 16, 1990, the trial court

dismissed the possession of cocaine conviction and sentenced

Patterson, who had no prior criminal history, to ten years in the

penitentiary on the possession of psilocyn conviction. The trial

court suspended that sentence for twenty years on the condition

that Patterson "keep the peace, be of good behavior, violate no

laws of the Commonwealth or any other jurisdiction, and that he

receive drug testing under the direction of the Probation Officer

of the court under whose supervision he is placed."
On May 13, 1991, upon receipt of a letter from Patterson's

probation officer representing that Patterson was "a suitable

person to be released from further supervision," the trial court

entered an order releasing Patterson from further supervision by

his probation officer.

On March 9, 2001, Patterson petitioned the trial court to

vacate its July 16, 1990 sentencing order pursuant to Code

§ 19.2-303. Seeking termination of "the period of suspension of

[his] sentence," Patterson represented that the twenty-year

period of suspension hindered him in obtaining "gainful

employment commensurate with his education and training" and that

it would prevent him from having his civil rights restored until

he was forty-six years old.

At the hearing on Patterson's petition on May 16, 2001, the

Commonwealth conceded Patterson had to that point complied with

the terms and conditions of the suspension of his sentence. It

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argued, however, that, pursuant to the proscriptions of Rule 1:1,

the trial court did not have jurisdiction to modify Patterson's

sentence because Patterson's petition was filed more than

twenty-one days after entry of the sentencing order. Patterson

maintained the trial court had jurisdiction to modify his

sentence under Code § 19.2-303 because he was never transferred

to the Department of Corrections. He further maintained, in the

alternative, that the trial court had jurisdiction to modify his

sentence because the twenty-year suspension was so unreasonable

in relation to the gravity of the offense that the sentence was

void or unlawful. Citing Rule 1:1, the trial court concluded it

did not have jurisdiction to make the requested modification and

denied Patterson's petition accordingly.
This appeal followed.

II. ANALYSIS

Under Rule 1:1, "[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."

Thus, once the twenty-one-day time period following the entry of

a final sentencing order has run without modification, vacation,

or suspension of that order, the trial court loses jurisdiction

to disturb the order, unless an exception to Rule 1:1 applies.

See In Re: Dept. of Corrections, 222 Va. 454, 463-64, 281 S.E.2d

857, 862 (1981).

Here, the trial court entered its sentencing order, a final

order, on July 16, 1990. The trial court did not modify, vacate,

or suspend that order within twenty-one days of its entry.

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Therefore, pursuant to the provisions of Rule 1:1, the trial

court retained jurisdiction over Patterson's sentence only until

August 6, 1990. Patterson did not petition the trial court to

vacate the sentencing order until March 9, 2001.

Patterson, however, points on appeal, as he did below, to

two exceptions to Rule 1:1 that he argues authorized the trial

court to modify his sentence although more than twenty-one days

had passed since the entry of the trial court's 1990 sentencing

order. The first, Patterson asserts, is Code § 19.2-303 and the

second is the principle that the "trial court may correct a void

or unlawful sentence at any time." Powell v. Commonwealth, 182

Va. 327, 340, 28 S.E.2d 687, 692 (1944). We will address the

applicability of each asserted exception separately.

A. Code § 19.2-303

Code § 19.2-303 provides an exception to Rule 1:1 under

certain limited circumstances, 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.

See Russnak v. Commonwealth, 10 Va. App. 317, 324, 392 S.E.2d

491, 495 (1990) ("An exception to [Rule 1:1] is found in Code §

19.2-303 . . . .").

Patterson contends the exception to Rule 1:1 offered in Code

§ 19.2-303 applies to him because he had "been sentenced for a

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felony to the Department of Corrections but ha[d] not actually

been transferred" to the Department of Corrections when he

petitioned the trial court to vacate its July 16, 1990 sentencing

order. Thus, he argues, the trial court retained jurisdiction to

terminate the remaining, "unserved portion" of the period of

suspension of his sentence.

The Commonwealth concedes that Patterson was sentenced for a

felony to the Department of Corrections and that he had not been

transferred to the Department when he petitioned the trial court

to vacate its July 16, 1990 sentencing order. The Commonwealth

contends, however, that Code § 19.2-303 does not apply to

Patterson because the entire period of incarceration in the

penitentiary imposed on him had been suspended and he was not,

therefore, "going to be transferred to the Department of

Corrections at any point in time after sentencing." Code

§ 19.2-303, the Commonwealth argues, was intended to apply to

only those convicted felons who are "temporarily in a local

correctional facility already serving their sentence awaiting

transfer to the Department of Corrections." The legislature's

use in the statute of the words "before the person is transferred

to the Department" and "unserved portion of . . . a sentence"

mandates this interpretation, the Commonwealth maintains.
The dispositive question now before us is whether the trial

court retained jurisdiction under Code § 19.2-303 to shorten the

period of suspension of Patterson's sentence in consideration of

"circumstances in mitigation of the offense" more than twenty-one

days following the entry of the final sentencing order.

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 In resolving that question, we must look to the language of

the pertinent part of the statute to determine the General

Assembly's intent. See HCA Health Servs. of Virginia, Inc. v.

Levin, 260 Va. 215, 220, 530 S.E.2d 417, 420 (2000) ("Courts must

give effect to legislative intent, which must be gathered from

the words used, unless a literal construction would involve a

manifest absurdity."). As "[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), the statute should be

construed liberally. See Wright v. Commonwealth, 32 Va. App.

148, 151, 526 S.E.2d 784, 786 (2000) (stating that statutes

should be liberally construed in keeping with their

rehabilitative purpose); see also Dyke v. Commonwealth, 193 Va.

478, 484, 69 S.E.2d 483, 486 (1952) (noting that courts should

liberally construe Code § 53-272, Code § 19.2-303's predecessor,

in order to "afford to trial courts a valuable means of bringing

about the rehabilitation of offenders against the criminal

laws"). This does not mean, however, that Patterson is entitled

to an interpretation of Code § 19.2-303 that is inconsistent with

the statute's plain language. See Cartwright v. Commonwealth,

223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (noting that a

statute may be interpreted in accord with its purpose only to the

extent that such purpose "'may be accomplished without doing harm

to [the statute's] language'" (quoting Gough v. Shaner, Adm'r,

197 Va. 572, 575, 90 S.E.2d 171, 174 (1955))). "The manifest

intention of the legislature, clearly disclosed by its language,

must be applied." Anderson v. Commonwealth, 182 Va. 560, 566, 29

S.E.2d 838, 841 (1944).

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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 argues that, because a portion of his sentence—

specifically, the balance of the period of suspension of

sentence—remained to be served when he petitioned the court to

vacate its sentencing order, the trial court retained

jurisdiction to "otherwise modify" that "unserved portion" of his

sentence. We disagree.
At issue in this case is whether the term "such a sentence,"

which is not specifically defined in the statute, was intended by

the legislature to refer strictly to the period of incarceration

in the penitentiary previously imposed by the trial court or, as

Patterson contends, to also encompass the period of suspension of

sentence previously fixed by the trial court. "When, as here, a

statute contains no express definition of a term, the general

rule of statutory construction is to infer the legislature's

intent from the plain meaning of the language used." Hubbard v.

Henrico Ltd. P'ship, 255 Va. 335, 340, 497 S.E.2d 335, 338

(1998). "An undefined term must be given its ordinary meaning,

considered in the context in which the term is used. The context

of the term includes the other language used in the particular

statute . . . at issue." Murphy v. Norfolk Cmty. Servs. Bd., 260

Va. 334, 339-40, 533 S.E.2d 922, 925 (2000) (citations omitted).

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 Here, the syntactic context of the term "such a sentence" is

straightforward and determinative of the issue at hand. The

antecedent of "such a sentence" is that sentence imposed by the

trial court when a convicted felon is "sentenced . . . to the

Department of Corrections." Read plainly, the words "sentenced

. . . to the Department of Corrections" clearly contemplate the

imposition of a period of incarceration in the penitentiary on

the felon. As written, however, they do not appear to

contemplate, either explicitly or connotatively, the suspension

of the imposed incarceration.
Moreover, in the phrase "suspend or otherwise modify the

unserved portion of such a sentence," the words "suspend" and

"otherwise modify" are used as parallel terms describing the

alternative actions the trial court may take with regard to "the

unserved portion of such a sentence." Grammatically, they both

are intended to refer and, hence, apply to the same "unserved

portion." Clearly, a trial court can either "suspend" or

"otherwise modify" the unserved portion of an imposed period of

incarceration. It is not logically possible, however, to

"suspend" a portion of a sentence that has already been

suspended. Thus, having been used as parallel terms, the words

"suspend or otherwise modify" cannot reasonably be interpreted as

applying to the period of suspension of sentence. See Harris v.

Commonwealth, 142 Va. 620, 624, 128 S.E. 578, 579 (1925) (stating

that "proper grammatical effect will [generally] be given to the

arrangement of words in a sentence of a statute"); Frere v.
Commonwealth, 19 Va. App. 460, 464, 452 S.E.2d 682, 685 (1995)

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(noting that a presumption exists that "the legislature

understood the basic rules of grammar" when drafting a statute).

The Supreme Court's holding in Robertson v. Supervisor of

Wise Correctional Unit, 248 Va. 232, 445 S.E.2d 116 (1994),

relied upon by both parties, does not require a different

result. Robertson involved two simultaneously imposed

penitentiary sentences, one that was suspended on condition of

good behavior for a period of six years and a second that was

suspended on condition that Robertson serve twelve months in the

local jail and be of good behavior for two years. Id. at

233-34, 445 S.E.2d at 116-17. The original order was silent

regarding whether the sentences were to run consecutively or

concurrently, making the sentences consecutive by operation of

law. Id. at 234, 235, 445 S.E.2d at 117, 118. While Robertson

remained in the local jail pursuant to the original sentencing

order but more than twenty-one days following its entry, the

trial court entered a second order in which it provided that the

sentences were to run concurrently. Id. at 234, 445 S.E.2d at

117. Robertson was released from jail after serving his

sentence. Id.

When Robertson was convicted for a third offense while

still on probation for the first two offenses, the trial court

revoked the sentences previously suspended and entered an order

purporting to make the sentences for the first two offenses

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consecutive rather than concurrent. Id. Robertson challenged

the court's authority to enter the third order.

The Supreme Court, citing Code § 19.2-303, noted that,

"[a]t the time the second order was entered, Robertson 'had not

been transferred to the Department [of Corrections] and the

trial judge had authority to 'suspend or otherwise modify the

unserved portion' of the sentences imposed by the first order."

Id. at 235, 445 S.E.2d at 117 (quoting Code § 19.2-303). It

noted further that, "[w]hile the trial court still retained

power under Code § 19.2-306 to revoke the suspension of those

sentences and the power under Code § 19.2-303 to modify the

sentences in consideration of 'circumstances in mitigation of

the offense,' the court had no authority to lengthen the period

of incarceration [by ordering that the sentences would run

consecutively rather than concurrently]." Id. at 236, 445

S.E.2d at 118.

Thus, in Robertson, the Supreme Court held the trial court

retained jurisdiction, pursuant to Code § 19.2-303, to make

concurrent Robertson's simultaneously imposed consecutive

sentences where one of those sentences involved active jail time

under which Robertson remained incarcerated at the time of entry

of the order. It also held the court lacked authority to

lengthen the period of incarceration. It did not hold the trial

court retained jurisdiction to shorten or eliminate the

remaining suspended portion of the sentence after Robertson had
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finished serving the active period of incarceration.

Consequently, Robertson is not controlling.

We conclude, therefore, that the term "such a sentence," as

used in Code § 19.2-303, was intended by the legislature to

refer strictly to the period of incarceration in the

penitentiary imposed on a convicted felon without regard to the

period of suspension of that incarceration. Accordingly, we

hold that, while Code § 19.2-303 permits the trial court to

retain jurisdiction beyond the twenty-one-day limit of Rule 1:1

to shorten the previously imposed period of incarceration while

the defendant remains incarcerated "but has not actually been

transferred to a receiving unit of the Department [of

Corrections]," it does not authorize the court to retain

jurisdiction to modify the previously imposed period of

suspension of sentence.

Under this construction, the trial court correctly ruled it

did not have jurisdiction under Code § 19.2-303 to terminate the

period of suspension of Patterson's sentence more than twenty-one

days after entry of the court's July 16, 1990 final sentencing

order.

B. Void or Unlawful Sentence

Patterson also argues on appeal, as he did before the trial

court, that the trial court had jurisdiction to terminate the

period of suspension of his sentence because the twenty-year

suspension of his sentence was so unreasonable, in relation to

the gravity of the offense of which he was convicted, as to

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render the sentence void or unlawful. The trial court, in

concluding it lacked jurisdiction to make the requested change,

rejected Patterson's argument.

Code § 19.2-303.1 provides that the trial court, in

suspending "the imposition or execution of a sentence, . . . may

fix the period of suspension for a reasonable time, having due

regard to the gravity of the offense, without regard to the

maximum period for which the defendant might have been

sentenced." The statute grants the trial court broad discretion

in fixing the period of suspension of sentence for the remedial

purpose of rehabilitating criminals. See Wright, 32 Va. App. at

151, 526 S.E.2d at 786. Indeed, the only statutory limitation

placed on the trial court's discretion in fixing the period of

suspension of sentence is that the duration of the suspension

period must be "reasonable . . . , having due regard to the

gravity of the offense." Code § 19.2-303.1. Thus, while "the

court's authority to suspend execution is not absolute," the

sentencing court "must consider that the facts surrounding a

particular offense may well authorize, even require, a longer

suspension than would be reasonable under less egregious

circumstances." Simmers v. Commonwealth, 11 Va. App. 375, 378,

398 S.E.2d 693, 694 (1990).

In this case, Patterson pled guilty to charges of possession

of cocaine and possession of psilocyn. At the time of the

offenses, Patterson was nineteen years old and had no prior

criminal history. However, information presented at the

sentencing hearing showed Patterson had compiled an extensive

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history of illegal drug usage prior to his conviction and

sentencing for possession of psilocyn.

Patterson began using alcohol at the age of sixteen and

frequently used marijuana and hallucinogenic mushrooms for

several years prior to his conviction. He also used LSD on

numerous occasions and experimented with cocaine, nitrous oxide,

and valium. Several months before his arrest and conviction,

Patterson was hospitalized for repeated hallucinatory flashbacks,

including visions of the crucifixion of Christ and voices telling

him to kill himself. Patterson rejected the recommended

substance abuse treatment offered by the hospital, saying he knew

more about the subject than those involved.
At sentencing, the prosecutor, after reviewing the instant

offense and Patterson's past drug usage, advised the trial court

as follows:

[Patterson's attorney] and I have talked
at great length, Your Honor. I don't
understand candidly what the answer is for
Mr. Patterson. I think the answer will have
to come from Mr. Patterson. . . .
The Commonwealth would recommend this
morning he be released on time served, be
given a ten year suspended penitentiary
sentence, on supervised probation. Such
sentence should run for a period of twenty
years . . . . Mr. Patterson is old enough,
though a young man, to accept the
consequences of his conduct. He has not done
that in the past. He is going to have to do
it . . . henceforth.

Patterson's attorney responded as follows:

Your Honor, if I may briefly, of course,
we would concur in the Commonwealth's
recommendation. . . .
Your Honor, I concur with [the
prosecutor's] observations. Quite candidly,
on behalf of my client, I would suggest that
it was not until his arrest and prosecution

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 on these most serious charges that will
indeed follow him for the rest of his days
that he, so to speak, got the point. . . .
[H]e is of the personal opinion that it's up
to the individual to make a decision
internally, if you will, whether or not to
get control of the situation and maintain
control . . . .

(Emphasis added.)

In light of these statements and Patterson's extensive drug

usage prior to his conviction, it is clear that the twenty-year

period of suspension of Patterson's sentence was intended to

benefit both the Commonwealth and Patterson. The Commonwealth

received the benefit of a compelling deterrence that would serve

to motivate Patterson to reform his conduct and be of good

behavior for a considerable period of time. Patterson gained his

freedom and the opportunity to "get control of the situation and

maintain control" for a considerable period of time.
We cannot say, therefore, upon consideration of the facts

and circumstances surrounding the offense, that the trial court

abused its discretionary authority in fixing, for the remedial

purpose of rehabilitating Patterson, the period of suspension of

Patterson's sentence at twenty years. We conclude, therefore

that the twenty-year suspension of Patterson's sentence was

reasonable under Code § 19.2-303.1 and that the trial court did

not err in finding it so.

Furthermore, because the trial court at sentencing "had

jurisdiction over the subject matter and the parties[,] . . . the

court's judgment was not void." Simmers, 11 Va. App. at 379, 398

S.E.2d at 695. "Since the judgment of the trial court was not

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void, [Patterson] may not sustain a collateral attack at this

time." Id.

For these reasons, we hold the trial court properly ruled it

lacked jurisdiction under Rule 1:1 to modify Patterson's

sentence, as requested, more than twenty-one days after entry of

the sentencing order. Accordingly, we affirm the judgment of the

trial court.

Affirmed.

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