Esparza v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia

ROBERT ALEX ESPARZA
OPINION BY
v. Record No. 2602-97-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge

Edward W. Webb, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.

Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

At a hearing to determine whether the suspended portion of

his sentence should be revoked, Robert Alex Esparza

("appellant") moved the court to reduce his "period of active

incarceration to time served." The court refused to entertain

appellant's motion on its merits, stating that it had no

authority to grant the motion because appellant was sentenced in

accordance with an accepted plea agreement. Appellant appeals

the court's refusal to hear his motion for sentence

∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
modification. For the reasons set forth below, we affirm

appellant's conviction.

I.

FACTUAL BACKGROUND

Appellant was indicted on two counts of felony forgery and

two counts of felony uttering in violation of Code § 18.2-179.

The appellant and the prosecution entered into a written plea

agreement, which provided that, upon pleading guilty to all four

charges, appellant would serve two years in prison for each

forgery charge and one year for each uttering charge. The

parties also agreed that five years of the six-year sentence

were to be suspended on the condition that appellant be of good

behavior for six years and pay court costs and restitution. On

August 12, 1996, the trial court accepted the plea agreement and

sentenced appellant accordingly, requiring him to report to the

Virginia Beach Correctional Center on September 16, 1996 to

begin serving his one year term of incarceration.

Appellant failed to report to the Correctional Center. On

November 25, 1996, the circuit court ordered appellant to show

cause why the suspended five years of his sentence should not be

revoked. Following his arrest and the scheduling of a

revocation hearing, appellant filed a "Motion for Sentence

Modification," which asked the court to reduce his "period of

active incarceration to time served." As grounds for this

request, appellant cited: (1) his mother's health, which

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required him to move to California to care for and financially

support her, (2) his own "serious medical conditions," and (3)

his gainful employment and good behavior following his

convictions in 1996.

At appellant's revocation hearing on October 21, 1997, the

judge heard argument on appellant's motion. Appellant's counsel

argued:

[T]he reason that [Mr. Esparza] did not show
up for the jail time was because of the
health of his mother. . . . [We are] asking
the court to modify the original sentence to
allow him to return to California [to help
her]. In addition, he has developed extreme
ill health problems related to his back.

The trial court denied the motion, stating:

I believe everything you’re telling me, but
this defendant did sign a plea agreement.
This was not [the trial judge's] sentence,
and I don't think that I can change a
written plea agreement that's been put into
an order. I mean - and it's too late to -
he entered a plea of guilty. The plea
agreement has been accepted, and he's been
sentenced according to the terms of the plea
agreement. I don't think that I can amend a
sentence that was made pursuant to a plea
agreement.

After his motion was denied, appellant addressed the

revocation issue, presenting evidence concerning his mother's

illness, his own medical condition, and his employment

activities since 1996. Notwithstanding appellant's evidence

which he advanced to explain his failure to report to the

Correctional Center when ordered by the court, the judge revoked

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the five suspended years of appellant's sentence and

re-suspended four of them, thus sentencing appellant to an

additional one year term of incarceration. 1

Appellant contends the circuit court erred in refusing to

entertain his motion for sentence modification at his revocation

hearing. We agree.

Code § 19.2-303 states:

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.

The issue on appeal is a matter of first impression under

Virginia law. We hold that Code § 19.2-303 reflects the

legislature's intent to provide for review and suspension of

sentences imposed for all felony convictions provided the

1
In pronouncing its ruling, the judge stated:

Mr. Esparza, the court might have been a lot
more sympathetic had you gone [to
California] and set up some mechanism and
gotten [your mother] organized and then come
back voluntarily to serve your time; but we
had to come and get you out there. You are
in violation. You had a year to serve.
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defendant has not been sent to the Department of Corrections. 2

The provision becomes effective post-sentencing and, in the

absence of limiting language, we conclude the legislature did

not intend to limit the application of Code § 19.2-303 to cases

of convictions obtained upon a plea of not guilty or an open

plea entered without agreement.

The Commonwealth cites People v. Evans, 673 N.E.2d 244

(1996), in support of its argument that the court is without

authority to modify a sentence under Code § 19.2-303 when the

sentence is imposed pursuant to a plea agreement. 3 The court in

Evans essentially premised its disposition on contract

principles as applied to plea agreements. See id. at 247-48.

In addition, the terms of the Illinois rule construed in Evans

differ from, and were adopted to serve an entirely different

purpose than those contained in Code § 19.2-303. 4

2
We do not reach the question of whether Code § 19.2-303
provides authority for the court to modify a sentence by
increasing or decreasing the term of years imposed upon
conviction, as that issue is not before us.
3
In Evans, the Supreme Court of Illinois, construing
Illinois’ Rule 604(d), found that modifying a sentence entered
pursuant to a plea agreement would controvert its policy of
encouraging properly administered plea bargains and held that
the Rule did not apply to cases involving negotiated plea
agreements. 673 N.E.2d at 248-50.
4
Rule 604(d) prohibits defendants from appealing the
judgment of a court that was entered upon a plea of guilty
unless the defendant first moves that court to reconsider its
sentence within a definite time period. See Evans, 673 N.E.2d
at 248. The purpose of this Rule is "to reduce the large number
of appeals being taken from guilty pleas." Id.
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 Even if we applied the Evans contract analysis urged by the

Commonwealth, we would hold that the trial court possessed power

to act under Code § 19.2-303, notwithstanding the execution of a

plea agreement. A basic rule applied when construing contracts

is that the law in force on the date a contract is formed

determines the rights of its parties. Paul v. Paul, 214 Va.

651, 653, 203 S.E.2d 123, 125 (1974) ("The law effective when

the contract is made is as much a part of the contract as if

incorporated therein."); Citizens Mut. Bldg. Assoc. v. Edwards,

167 Va. 399, 404, 189 S.E. 453, 455 (1937). Code § 19.2-303 was

in effect when the plea agreement was executed, and when the

court accepted it and imposed sentence accordingly. It follows

that the code provision for modification of sentence

post-conviction must be read as forming part of that agreement.

Furthermore, the purpose of the statute may be considered

in determining whether a felony conviction entered pursuant to a

plea agreement is embraced within its terms. See Stanley v.

Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925) (stating

that, when a court must determine whether something is embraced

within the terms of a statute, the statute should be construed

"'with reference to its subject matter, and the object sought to

be obtained, as well as the legislative purpose in enacting it;

and its language should receive that construction which will

render it harmonious with that purpose rather than that which

will defeat it.'" (quoting Mapp v. Holland, 138 Va. 519, 527,

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122 S.E. 430, 433 (1924))). See also Tobacco Growers' Coop.

Ass'n v. Danville Warehouse Co., 144 Va. 456, 465, 132 S.E. 482,

485 (1926) ("If possible, the language [of a statute] should

always be so construed as to give effect to the statute['s

purpose]."). The purposes of Code § 19.2-303 are rehabilitative

in nature. See Dyke v. Commonwealth, 193 Va. 478, 484, 69

S.E.2d 483, 486 (1952) (stating that Code § 53-272, a

predecessor of Code § 19.2-303, should be liberally construed so

as to "afford to trial courts a valuable means of bringing about

the rehabilitation of offenders against the criminal laws"). We

find nothing in the statutory scheme as articulated by the

legislature to suggest that the post-sentencing rehabilitative

purposes and goals of Code § 19.2-303 are inapplicable to felons

convicted pursuant to a plea agreement.

The Commonwealth also argues that under Rule 3A:8(c)(3) and

(4), a trial court has no authority to modify a sentence entered

pursuant to a plea agreement. 5 This argument essentially invokes

the application of the same contract analysis, which we have

determined is not conclusive in this case and which, as noted,

fails to support the Commonwealth's position. The Commonwealth

also invokes case law governing the post-sentence withdrawal of

5
Rule 3A:8(c)(3) states "[i]f the court accepts [a] plea
agreement, the court shall inform the defendant that it will
embody in its judgment and sentence the disposition provided for
in the agreement." Rule 3A:8(c)(4) provides that if the court
rejects the proposed plea, "neither party shall be bound by the
plea agreement."
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guilty pleas, which is premised on principles likewise not

applicable here. See Holler v. Commonwealth, 220 Va. 961, 265

S.E.2d 715 (1980); Lilly v. Commonwealth, 218 Va. 960, 243

S.E.2d 208 (1978).

Finally, the Commonwealth argues that modification of a

sentence imposed pursuant to a plea agreement is incompatible

with the public interest. We find this argument inapposite to

the issue presented. Consideration of the public interest,

while pertinent to the disposition of the motion to modify a

sentence pursuant to Code § 19.2-303, is not determinative of

the jurisdictional question raised here. The Commonwealth's

argument that appellant failed to mitigate his offense as

required by Code § 19.2-303 is likewise misplaced because it

addresses the merits of the motion and not the jurisdictional

arguments appellant presents.

In 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. The trial court's determination to

the contrary was, therefore, erroneous.

We find the court's error, however, to be harmless. A

nonconstitutional error is harmless when "it plainly appears

from the facts and circumstances of a particular case that [it]

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did not affect the verdict . . . ." Lavinder v. Commonwealth,

12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).

"An error does not affect a verdict if a reviewing court can

conclude, without usurping the [trial court's] fact finding

function, that, had the error not occurred, the verdict would

have been the same." Id.

In this case, it plainly appears from the record that

appellant's motion for sentence modification would have been

denied had the court entertained it. The court faced two

questions at appellant's revocation hearing, viz., whether to

grant appellant's motion for sentence modification under Code

§ 19.2-303 and whether to revoke the suspended portion of

appellant’s sentence under Code § 19.2-306. Both statutes serve

the same rehabilitative purpose. See Grant v. Commonwealth, 223

Va. 680, 684, 292 S.E.2d 348, 350 (1982) (stating that probation

statutes are highly remedial, and analyzing Code § 19.2-306 in

that light). 6 Thus, we may presume the court considered this

6
Whether the issue before a court involves the revocation of
sentence under Code § 19.2-306 or suspension of sentence under
§ 19.2-303, the considerations underlying the court's decision
are the same. In Virginia, statutes providing for the
imposition or revocation of suspended sentencing are highly
remedial and exist, inter alia, for the purpose of furthering
the rehabilitation of the accused. See Slayton v. Commonwealth,
185 Va. 357, 365-66, 38 S.E.2d 479, 483 (1946) (stating that the
purpose of a predecessor to §§ 19.2-303 and 19.2-306 is to
"restor[e] to a useful place in society an offender who is a
good social risk"); Richardson v. Commonwealth, 131 Va. 802,
811, 109 S.E. 460, 462 (1921) (examining Virginia's original
statute on the subject of sentence suspension and revocation of
suspension, and stating that the statute is "highly remedial").
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rehabilitative purpose when it revoked appellant's suspended

sentence and imposed a portion of the suspended sentence. See

Samuels v. Commonwealth, 27 Va. App. 119, 129, 497 S.E.2d 873,

878 (1998) (stating that every act of a court of competent

jurisdiction is presumed to have been rightly done). Further,

although the court never ruled on appellant's motion, appellant

relied on identical grounds and presented identical evidence to

support his position as to both questions raised at the hearing,

viz., his mother's medical condition and needs, his personal

medical condition, and his gainful employment following

conviction in 1996. As is manifest in the record, the court

considered appellant's evidence and arguments when deciding to

revoke the suspended sentences. Having done so, the court

imposed a portion of the suspended sentences, requiring

appellant to serve two years of incarceration rather than one

year as originally sentenced pursuant to his plea agreement.

Because the court imposed a sentence in conjunction with the

revocation proceeding that was longer than that sought by

appellant in his motion to reduce his sentence to "time served,"

and because the court, in doing so, based its ruling on the same

grounds, the same evidence, and the same sentencing

considerations that it would have considered had it entertained

See generally W. LaFave & J. Israel, Criminal Procedure
§§ 25.3(a-b), 25.4(a) (1984) (stating that the state's interest
in rehabilitating an offender and insuring the public safety is
relevant to both the granting and revocation of probation).
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appellant's motion for a reduced sentence, we hold that the

trial court's refusal to entertain the motion was harmless.

Accordingly, we affirm appellant's conviction.

Affirmed.

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Benton, J., concurring, in part, and dissenting, in part.

I concur in the majority opinion's holding "that Code

§ 19.2-303 invests the [trial judge] 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." However, I dissent from its

further holding that the trial judge's contrary ruling was

harmless error.

The trial judge had before her two distinct matters -- the

Commonwealth's motion to revoke Robert Esparza's suspended

sentence and Esparza's motion to reduce his sentence of one year

of active incarceration to the time he had already served. That

the trial judge believed Esparza should receive punishment for

violating the terms of his suspended sentence does not mean, a

fortiori, that the trial judge would not have reduced Esparza's

original sentence of active incarceration to time served if she

believed she had the authority to so do. Certainly, the trial

judge could have concluded that because she had no authority to

modify the active sentence and because Esparza would be

incarcerated for a year, the revocation of one year of the

suspended sentence was not significantly burdensome.

The trial judge enjoys wide discretion in applying Code

§ 19.2-303. Therefore, I believe we cannot presume that the

result the trial judge reached upon application of a faulty

premise foretells what the trial judge would have done had she

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known the full and proper extent of her authority. In view of

the significant error and the minimal inconvenience to the

proper administration of justice, I would remand this matter to

the trial judge for reconsideration.

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