COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Petty and Chafin
UNPUBLISHED
Argued at Lexington, Virginia
AKBAR ASWAB DOUGLAS
MEMORANDUM OPINION* BY
v. Record No. 1886-15-3 JUDGE TERESA M. CHAFIN
MARCH 28, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
William D. Broadhurst, Judge1
Wayne D. Inge (Law Office of Wayne D. Inge, on brief), for
appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Akbar Aswab Douglas appeals the November 5, 2015 decision from the Circuit Court of
the City of Salem revoking his suspended sentences from prior convictions based on his violation
of probation. On appeal, Douglas challenges a condition of his probation that prohibited him
from possessing or viewing sexually explicit materials.2 For the reasons that follow, we
conclude that Douglas cannot collaterally attack the probation condition at issue. Therefore, we
affirm the circuit court’s decision.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
While Judge Broadhurst presided over the November 5, 2015 joint hearing regarding
the revocation of the suspended sentences associated with Douglas’s Roanoke and Salem
convictions, Judge Charles N. Dorsey presided over the earlier proceedings limited to the
revocation of the suspended sentences associated with Douglas’s Salem convictions.
2
Specifically, Douglas contends that: (1) a probation officer did not have the authority to
impose the condition at issue, (2) a circuit court could only impose the condition after weighing
his constitutional right to view sexually explicit materials and the Commonwealth’s interest in
imposing the condition, and (3) the condition was not reasonable in relation to his underlying
offenses, background, and the surrounding circumstances.
I. BACKGROUND
Under standards analogous to those governing the appellate review of evidence presented
in criminal trials, we “view the evidence received at [probation revocation hearings] in the light
most favorable to the Commonwealth, as the prevailing party, including all reasonable and
legitimate inferences that may properly be drawn from it.” Henderson v. Commonwealth, 285
Va. 318, 329, 736 S.E.2d 901, 907 (2013). The relevant evidence in the present case, however,
is undisputed.
On March 30, 2011, Douglas was convicted of two counts of felony subsequent offense
petit larceny in the Circuit Court of the City of Salem pursuant to a written plea agreement. The
circuit court sentenced Douglas to three years of incarceration on each charge, and suspended
two years and eight months of each sentence. The circuit court also placed Douglas on
supervised probation for two years, and conditioned the suspension of his sentences on his
compliance with “all the rules and requirements set by [his] [p]robation [o]fficer” and good
behavior. Additionally, the circuit court allowed Douglas’s probation officer “to adjust the level
of supervision from regular supervised probation to intensive supervised probation and vice
versa” at his or her discretion. Douglas did not object to the imposition of probation or any of its
requirements.
On April 14, 2015, Douglas was convicted of attempted indecent liberties with a child
under the age of fifteen in the Circuit Court of the City of Roanoke. He was sentenced to a
period of incarceration followed by supervised probation. As a result of this new conviction, the
Circuit Court of the City of Salem concluded that Douglas had violated the terms of his
probation and revoked the suspended sentences pertaining to his petit larceny convictions on July
23, 2015. The circuit court resuspended the balance of Douglas’s sentences after giving him
credit for the time he had served prior to his probation revocation hearing. The circuit court then
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placed Douglas on an additional period of probation, and conditioned the suspension of his
sentences on his compliance with “all the rules and requirements set by [his] [p]robation
[o]fficer” and good behavior.3 Again, Douglas did not object to the imposition of probation or
any of its requirements.
Douglas met with his probation officer, Christopher Stewart, on July 28, 2015. As the
cities of Roanoke and Salem were located within the same probation and parole district, Stewart
supervised Douglas pursuant to his convictions in both jurisdictions. Stewart provided Douglas
with a written copy of the conditions of his probation, and explained the conditions to him.
Among other things, Stewart instructed Douglas that he had to comply with Probation Condition
Number 6, which stated, “I will follow the Probation and Parole Officer’s instructions and will
be truthful, cooperative, and report as instructed.” Stewart also informed Douglas that he had to
comply with additional probation conditions applicable to registered sex offenders due to his
attempted indecent liberties conviction. Stewart explained that one of the special sex offender
conditions prohibited Douglas from possessing and viewing sexually explicit or pornographic
materials.4
At the conclusion of the meeting, Douglas signed a copy of his probation conditions. He
indicated in writing that he understood the conditions of his probation and that he agreed to the
requirements of supervision. A senior probation officer reviewed the probation conditions with
Douglas a second time on August 11, 2015. Notably, Douglas did not object to any condition of
3
The March 30, 2011 and July 23, 2015 sentencing orders contained identical provisions
regarding Douglas’s probation.
4
A written copy of the additional sex offender probation conditions was not included in
the record of this case. Stewart, however, testified about the substance of the pertinent condition
and Douglas’s attorney stated the condition at issue in argument before the circuit court without
objection from the Commonwealth.
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his probation following his meeting with Stewart or after his meeting with the senior probation
officer.
On August 27, 2015, Stewart was informed that Douglas had viewed sexually explicit
materials on a computer at an employment services agency. Although Douglas initially denied
the allegations, he later admitted that he had navigated to a pornographic website and viewed
sexually explicit images on one of the computers at the agency. Douglas was arrested following
this admission.
On September 22, 2015, Stewart filed a major violation report in the Circuit Court of the
City of Salem based on Douglas’s actions on August 27, 2015, and his subsequent admission that
he had viewed sexually explicit material on that date. Specifically, the report stated that Douglas
had failed to follow the instructions of his probation officers and that he had violated Probation
Condition Number 6. Stewart also filed a similar report in the Circuit Court of the City of
Roanoke.
The Circuit Court of the City of Salem held a hearing regarding the alleged probation
violation on October 16, 2015. At that hearing, Douglas objected to the special probation
condition prohibiting him from possessing or viewing sexually explicit materials. Douglas
argued that the condition was unrelated to his larceny offenses, and therefore, not a reasonable
condition of probation. The circuit court disagreed, and concluded that the condition was
reasonable when viewed with Douglas’s attempted indecent liberties conviction. Based on the
testimony of Stewart, the circuit court determined that the evidence presented was sufficient to
establish that Douglas had violated the terms of his probation. The circuit court, however,
deferred making a formal finding concerning that issue, and continued the matter to be heard in a
consolidated proceeding addressing the revocation of Douglas’s probation associated with his
Salem petit larceny convictions and his Roanoke attempted indecent liberties conviction.
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A consolidated hearing addressing the alleged probation violation was held in the Circuit
Court of the City of Roanoke on November 5, 2015. At the conclusion of evidence, Douglas
again argued that the special sex offender probation condition at issue was not reasonable when
viewed in the context of his underlying larceny convictions. Additionally, Douglas argued that a
probation officer did not have the authority to impose the condition at issue and that such a
condition could only be imposed by a circuit court following a hearing on the subject. The
circuit court, acting on behalf of both the City of Salem and the City of Roanoke, disagreed with
both arguments and concluded that the condition was reasonable in light of Douglas’s attempted
indecent liberties conviction and his particular needs.5
Although the Circuit Court of the City of Salem had concluded that the evidence
presented in the prior hearing was sufficient to establish that Douglas had violated the terms of
his probation, the circuit court judge presiding over the consolidated hearing independently
reached the same conclusion. After determining that Douglas had violated the terms of his
probation, the circuit court revoked Douglas’s suspended sentences associated with his petit
larceny convictions. The circuit court then resuspended all but four months of the sentences on
each charge, resulting in a total active sentence of eight months. This appeal followed.6
5
The circuit court noted that Douglas’s attempted indecent liberties conviction involved
similar circumstances in which he used a public computer to access pornographic websites in the
presence of a fourteen-year-old victim.
6
The circuit court also revoked the suspended sentences associated with Douglas’s
attempted indecent liberties conviction. Although Douglas appealed that decision on similar
grounds, this Court did not grant Douglas’s petition for an appeal regarding the attempted
indecent liberties conviction.
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II. ANALYSIS
On appeal, Douglas attempts to attack a condition of the probation imposed by the July
23, 2015 sentencing order. Douglas, however, failed to challenge any of the conditions of his
probation when they were imposed by the circuit court at the July 23, 2015 hearing or when they
were explained to him by his probation officer.
Typically, any challenge to an order of the circuit court must be made within twenty-one
days of the entry of the order in question. See Rule 1:1 (“All 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.”). However, there is an exception to this general rule. Rule 1:1 does not apply to an
order that is void ab initio. Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001). In
contrast, orders that are merely voidable are subject to Rule 1:1 and may not be collaterally
attacked. Id. at 51, 541 S.E.2d at 551.
“The distinction between an action of the court that is void ab initio rather than merely
voidable is that the former involves the underlying authority of a court to act on a matter whereas
the latter involves actions taken by a court which are in error.” Id. “An order ‘is void if it has
been procured by extrinsic or collateral fraud, or has been entered by a court that did not have
jurisdiction over the subject matter or the parties.’”7 Wright v. Commonwealth, 52 Va. App.
690, 704, 667 S.E.2d 787, 793 (2008) (en banc) (quoting Evans v. Smyth-Wythe Airport
Comm’n, 255 Va. 69, 73, 495 S.E.2d 825, 828 (1998)).
In contrast, an order is voidable if its issuance was
reversible error but was within the court’s jurisdiction to enter. A
court has jurisdiction to err, as well as to correctly decide the
issues presented in a case, and the remedy to correct an error by a
7
Subject matter jurisdiction is the type of jurisdiction granted by constitution or statute
“that delineates a court’s ability to adjudicate a defined class of cases or controversies.”
Mohamed v. Commonwealth, 56 Va. App. 95, 99, 691 S.E.2d 513, 515 (2010).
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trial court is to appeal the court’s decision upon entry of a final
order, not to collaterally attack the erroneous decision in a separate
action.
Hicks v. Mellis, 275 Va. 213, 219, 657 S.E.2d 142, 145 (2008) (citations omitted).
An order issued by a court with subject matter jurisdiction,
even if arguably erroneous and thus voidable, is still a court order.
As a result, it governs the parties before the court until vacated by
the trial court upon reconsideration (assuming a timely ruling
under Rule 1:1), or reversed by an appellate court (assuming a
timely appeal under Rules 5A:6(a) and 5:9) . . . . A voidable order,
however, cannot be set aside upon a “collateral attack.”
De Avies v. De Avies, 42 Va. App. 342, 346, 592 S.E.2d 351, 353 (2004) (en banc) (citations
omitted).
In the present case, the circuit court clearly had subject matter jurisdiction to revoke
Douglas’s suspended sentences at the July 23, 2015 revocation hearing and impose a period of
supervised probation. “Proceedings for revocation of suspended sentences are within the subject
matter jurisdiction of the circuit courts.” Dunham v. Commonwealth, 59 Va. App. 634, 640, 721
S.E.2d 824, 827 (2012). Code § 17.1-513 provides circuit courts with “original jurisdiction of all
indictments for felonies and of presentments, informations, and indictments for misdemeanors.”
Through that statute, the General Assembly has granted circuit courts subject matter jurisdiction
over the specific class of cases involving the prosecution of crimes and the rehabilitation of
criminals. See Mohamed v. Commonwealth, 56 Va. App. 95, 100, 691 S.E.2d 513, 515 (2010).
This class of cases includes proceedings to revoke probation and suspended sentences. See id.
As the circuit court had subject matter jurisdiction to revoke Douglas’s suspended
sentences based on the violation of the terms of his probation, its July 23, 2015 sentencing order
was voidable rather than void ab initio. Therefore, the order is subject to Rule 1:1 and it may not
be collaterally attacked.
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In order to challenge the probation conditions imposed by the July 23, 2015 sentencing
order, Douglas was required to timely object to the conditions at issue or appeal the circuit
court’s decision. He failed to take either course of action. Douglas did not object to the circuit
court’s order directing him to comply with “all the rules and requirements set by [his]
[p]robation [o]fficer” at the July 23, 2015 hearing, or after those rules and requirements were
explained to him on July 28, 2015. If he had objected to the conditions of his probation at either
of these times, the circuit court could have modified the terms of his probation within the
twenty-one-day period allowed by Rule 1:1.8
Although Douglas contends that he was unaware of the probation condition prohibiting
him from viewing or possessing sexually explicit materials at the July 23, 2015 revocation
hearing, as previously noted, his probation officer explained the condition at issue to him five
days later on July 28, 2015. Additionally, a senior probation officer reviewed the condition with
him on August 11, 2015. While Douglas could have objected to the condition after it was
explained to him, he failed to do so and agreed to comply with the condition as a term of his
probation. Rather than objecting to the condition at issue, Douglas chose to accept “the benefit
of the court’s suspension of sentence.” Simmers v. Commonwealth, 11 Va. App. 375, 379, 398
S.E.2d 693, 695 (1990).
Pursuant to Rule 1:1, the July 23, 2015 sentencing order became final twenty-one days
after it was entered. As the circuit court had subject matter jurisdiction to enter that order, it was
at most voidable rather than void ab initio, and therefore, it is not subject to collateral attack.
See Wilson v. Commonwealth, 67 Va. App. 82, 90, 793 S.E.2d 15, 19 (2016) (applying Rule 1:1
under similar circumstances where the amount of restitution owed by an appellant was
erroneously left to the sole discretion of his probation officer). Thus, Douglas could not
8
Pursuant to Rule 1:1, the circuit court could have modified the July 23, 2015 sentencing
order until August 13, 2015.
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challenge the probation condition at issue at his October 16, 2015 probation revocation hearing,
nor may he do so on appeal.
III. CONCLUSION
As the July 23, 2015 sentencing order could not be collaterally attacked, Douglas was
bound by the terms of that order and required to comply with “all the rules and requirements set
by [his] [p]robation [o]fficer.” Thus, we conclude, without reaching the merits of Douglas’s
substantive arguments, that the circuit court properly revoked Douglas’s suspended sentences
based on his violation of the condition of probation at issue in this case. Accordingly, we affirm
the circuit court’s decision.
Affirmed.
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Petty, J., dissenting.
The majority concludes that Rule 1:1 bars Douglas from challenging the condition set by
his probation officer that he not view sexually explicit material.9 Because I conclude that
Douglas appropriately challenged the new condition at the revocation hearing, I would address
the merits of Douglas’s argument. Therefore, I respectfully dissent.
Code § 19.2-303 provides that “[a]fter conviction, whether with or without jury, the court
may suspend imposition of sentence . . . and in addition may place the defendant on probation
under such conditions as the court shall determine . . . .” (Emphasis added). “The court may
subsequently increase or decrease the probation period and may revoke or modify any condition
of probation, but only upon a hearing after reasonable notice to both the defendant and the
attorney for the Commonwealth.” Code § 19.2-304.10 Simply put, the statutory authority to
establish and modify conditions of probation rests with the court.
In this case, the court neither set nor modified Douglas’s conditions of probation to
include a condition that he not view pornography. The Commonwealth argues, and the majority
agrees, that the condition restricting pornography was included in the circuit court’s general
condition that Douglas “comply with all the rules and requirements set by the Probation Officer.”
However, I note that the restriction on viewing pornography was imposed by the probation
9
I note that the rationale adopted by the majority was not argued by the Commonwealth
on brief and was only briefly addressed at oral argument in response to the Court’s questions.
10
Pursuant to Code § 19.2-304, a court has authority to modify a condition of probation.
In contrast, “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” modification of conditions of suspension in a final
order, but not conditions of probation. McFarland v. Commonwealth, 39 Va. App. 511, 516, 574
S.E.2d 311, 314 (2002) (finding the trial court “was authorized pursuant to Code § 19.2-304 to
remove the good behavior requirement as a condition of the termination of his probation, but it
lacked jurisdiction to alter the good behavior and related provisions imposed as conditions of the
suspension of appellant’s sentence more than twenty-one days after the court’s entry of its . . .
sentencing order”).
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officer as a condition of Douglas’s probation for the attempted indecent liberties offense from the
Circuit Court of the City of Roanoke. The specific condition was not included in the record or
appendix of the case before us; additionally, it was not included in the circuit court exhibit
containing the conditions set by the probation officer in this case. The position of the majority,
then, is that the probation officer had authority on his own to impose on Douglas special sex
offender conditions for the probation set by the Circuit Court of the City of Salem. The majority
concludes that Douglas should have foreseen the possibility that the probation officer would set
rules he deemed unreasonable and he should have objected to that part of the July 23, 2015 order
setting out the general requirement that he comply with his probation officer’s rules. Such an
interpretation ignores the requirement that the court determine the conditions of probation and
gives a probation officer unbridled power to set any condition at any time without the approval
of the court and without the notice and hearing required by Code § 19.2-304. This simply cannot
be. While the trial court may have the authority to delegate the administrative requirements of
probation, such as the frequency of office visits, Code § 19.2-303 directs the court to establish
substantive conditions of probation.
Furthermore, in this particular case Douglas met with his probation officer while the
circuit court still had jurisdiction over the case pursuant to Rule 1:1. The majority fails to
explain how its holding would apply where a defendant does not meet with his probation officer
until after twenty-one days, such as when the probation does not begin until after a period of
incarceration. In that instance, the defendant would have no recourse to challenge the conditions
set by the probation officer.
Unlike the majority, I do not find Wilson v. Commonwealth, 67 Va. App. 82, 90, 793
S.E.2d 15, 19 (2016), applicable because in that case the circuit court’s order expressly delegated
to the probation officer the duty of determining the amount of restitution to be paid. In contrast,
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here the court included only the generic language that Douglas was to “comply with all the rules
and requirements set by the Probation Officer.”
I would find, therefore, that the probation officer did not have the authority to unilaterally
impose a substantive condition of probation. Because the court, in its final order, did not
authorize or impose the condition that he not view pornography, Rule 1:1 does not prevent
Douglas from challenging at the November 5, 2015 revocation hearing that subsequently
imposed condition relied upon as grounds for his probation revocation.
I conclude that Douglas did not waive his right to challenge revocation of his probation
based on violation of the condition set by the probation officer. I would address the case on the
merits.
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