Cilwa v. Commonwealth

PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and Chafin, JJ., and Millette, S.J.

DOROTHY ELIZABETH CILWA
OPINION BY
v. Record No. 180885 JUSTICE D. ARTHUR KELSEY
DECEMBER 12, 2019
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Brett A. Kassabian, Judge

Dorothy Elizabeth Cilwa appeals a decision of the Court of Appeals affirming the trial

court’s revocation of her suspended sentence in a criminal case. Cilwa contends that the trial

court’s final revocation order relied upon an earlier order that was void ab initio. We disagree

and affirm.

I.

In March 2008, Cilwa pleaded guilty to grand larceny and was sentenced to three years of

incarceration with all three years suspended on the condition of good behavior for one year and

successful completion of one year of supervised probation. Five days after her sentencing

hearing, Cilwa committed a new criminal offense. In August 2008, the trial court found her in

violation of the terms of her probation. Rather than imposing any portion of her suspended

sentence, the court continued Cilwa on supervised probation for another one-year period

beginning on August 14, 2008.

In June 2009, the probation officer informed the court that Cilwa had been arrested and

had been charged with two new felonies, and the court issued a bench warrant for Cilwa’s arrest.

Cilwa responded by executing a letter prepared by her probation officer stating that she “agree[d]

to voluntarily extend [her] probation indefinitely beyond the scheduled termination date of

August 14, 2009, in order to complete inpatient substance abuse treatment and to allow time for
disposition of [her] pending felony charge[s].” J.A. at 20 (emphasis in original). She

acknowledged that she had a right to legal counsel and to a hearing but “waived[d] these rights.”

Id. The court withdrew the bench warrant and held the case in abeyance.

On September 15, 2009, the Commonwealth asked the court to enter an order extending

Cilwa’s probation indefinitely until “substance abuse treatment and aftercare are completed and

pending charges are disposed of.” Id. at 21. Consistent with the earlier agreed-upon disposition,

the court entered an order stating that, as of September 16, 2009, “probation in the above case is

hereby extended for Indefinitely [sic], or until further order by the Court.” Id. Approximately

two weeks later, Cilwa was arrested for another felony offense. The court issued a bench

warrant for her arrest and scheduled a revocation hearing to address the June and September

2009 charges.

At the revocation hearing in December 2009, the court found that Cilwa had violated the

terms of her supervised probation. In its corresponding January 2010 revocation order, the court

recited its prior rulings, including its September 2009 order, and stated that Cilwa’s “period of

supervised probation [was] extended indefinitely in order for [her] to complete residential drug

treatment and aftercare and time for disposition of her pending charges.” Id. at 31. The court

declined to order incarceration and instead directed her to another “residential substance abuse

treatment facility” and ordered that she “remain under the same terms and conditions of

supervised probation.” Id.

In December 2011, Cilwa overdosed on drugs and was discharged from a substance-

abuse-treatment program. The court issued a bench warrant for Cilwa to secure her appearance

at another revocation hearing. After multiple continuances, during which Cilwa continually

improved in her addiction treatment, the case went before the court in December 2012. The

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court dismissed the bench warrant, and later, in February 2013, Cilwa signed a “Conditions of

Probation Supervision” form noting that at her December 2012 hearing, the court had again

placed her on indefinite supervised probation. Id. at 66-67. She also successfully completed a

substance-abuse-treatment program in January 2013.

In March 2013, Cilwa’s probation officer advised the court that Cilwa had been arrested

for a new felony offense and had continued to abuse drugs. The court took no action until after

Cilwa was arrested in December 2014 for an additional felony, multiple misdemeanors, and a

driving offense. On March 27, 2015, at the revocation hearing to address her charges, Cilwa

argued for the first time that the September 2009 order imposing indefinite probation was void

ab initio. Cilwa argued in the alternative that under general contract principles, her supervised

probation had automatically ended when she had completed the substance-abuse-treatment

program in 2013.

The trial court rejected both of Cilwa’s arguments. First, the court found that even if it

had erred in extending Cilwa’s probation indefinitely, this error would render the September

2009 order voidable but not void ab initio. Cilwa had not appealed this order, and thus, she

could not collaterally attack it years later. Second, the court was unpersuaded by Cilwa’s

contract argument. The September 2009 order, the court held, had not created a “condition

subsequent” triggered by Cilwa’s short-lived success in one of her several substance-abuse-

treatment programs. Id. at 84. The court’s order, which reflected its intent, was plain. The order

“simply extended [Cilwa’s probation] indefinitely.” Id. at 85.

After the court had rejected Cilwa’s collateral challenge to the September 2009 order,

Cilwa admitted the new charges against her. The court found her in violation of her probation,

revoked 90 days of her 3-year suspended sentence, and terminated her supervised probation.

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Cilwa appealed, but the Court of Appeals held in an unpublished order that the trial court did not

err because the January 2010 order had extended Cilwa’s probation indefinitely even if the

September 2009 order, for whatever reason, had not. The Court of Appeals also rejected Cilwa’s

contract argument that her probation had terminated automatically when she had completed a

substance-abuse-treatment program in January 2013.

II.

On appeal to us, Cilwa makes two arguments. First, she argues that the September 2009

order was void ab initio because the trial court lacked subject matter jurisdiction to enter it, and

consequently, the January 2010 order was void as well. Second, she argues that under contract

principles, her probation had terminated automatically when she had completed her substance-

abuse-treatment program in January 2013, which was long before the trial court entered its final

revocation order. 1 We find no merit in either argument.

A. THE SEPTEMBER 2009 ORDER

Cilwa contends that the trial court entered the September 2009 order during a “lapsed”

period of subject matter jurisdiction over probation in this case. See Appellant’s Br. at 10-11.

She draws this conclusion by reasoning that Code § 19.2-304 only allows a court to extend a

probation period before that period expires and that Code § 19.2-306 only allows a court to

extend a probation period as a consequence of a revocation finding. Neither of these conditions,

Cilwa argues, existed at the time that the court entered the September 2009 order.

1
In her first assignment of error, Cilwa claims that the trial court lacked both personal
and subject matter jurisdiction over her. In her brief on appeal, however, she abandons the
personal jurisdiction argument. See Appellant’s Br. at 10 (“In this case the trial court retained
personal jurisdiction over Ms. Cilwa, and that is not at issue.”); id. at 11 (conceding that “the
court retained personal jurisdiction over Ms. Cilwa”).

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 1.

We begin our jurisdictional analysis where Cilwa ends hers — with the proposition that a

judicial order can be deemed void ab initio, sometimes even years after it has been entered. In

most instances, “whether an alleged error by a trial court renders its order void ab initio or

merely voidable turns on the subtle, but crucial, distinction deeply embedded in Virginia law”

between two very different but semantically similar concepts: subject matter jurisdiction and, for

lack of a better expression, active jurisdiction. See Jones v. Commonwealth, 293 Va. 29, 46

(2017).

“Subject-matter jurisdiction is unique.” Watson v. Commonwealth, 297 Va. 347, 352

(2019). It involves the judicial “power to adjudicate a case.” Pure Presbyterian Church of

Wash. v. Grace of God Presbyterian Church, 296 Va. 42, 49 (2018) (citation omitted).

“Jurisdiction of the subject matter can only be acquired by virtue of the Constitution or of some

statute,” id. at 56 (citation omitted), and it “refers to a court’s power to adjudicate a class of cases

or controversies,” In re Commonwealth, 278 Va. 1, 11 (2009) (citation omitted). The parties

cannot waive the absence of subject matter jurisdiction or confer it upon a court by their consent.

Watson, 297 Va. at 352. If a court enters an order outside of its subject matter jurisdiction, the

order can be set aside the day after its entry or a century later. In the eyes of the law, such an

order is not merely an erroneous order — it is no order at all.

In contrast to subject matter jurisdiction, “active jurisdiction” — pragmatically called the

“jurisdiction to err” 2 — involves not the power of the court but the proper exercise of its

2
Pure Presbyterian Church of Wash., 296 Va. at 56-57; Jones, 293 Va. at 47; Hicks ex
rel. Hicks v. Mellis, 275 Va. 213, 219 (2008); Parrish v. Jessee, 250 Va. 514, 521 (1995); Farant
Inv. Corp. v. Francis, 138 Va. 417, 436 (1924); see also Kelley v. Stamos, 285 Va. 68, 75 (2013);
Singh v. Mooney, 261 Va. 48, 51-52 (2001).

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authority consistent with “settled principles of the unwritten law” or any applicable “mandate of

the statute law.” Farant Inv. Corp. v. Francis, 138 Va. 417, 427, 436 (1924) (citation omitted).

This nomenclature entered our jurisprudence a century ago through the “excellent work” of

Professor Lile, id. at 427, and its salience has not abated in modern times, see, e.g., Pure

Presbyterian Church of Wash., 296 Va. at 49, 56. Simply stated, active jurisdiction requires a

court with subject matter jurisdiction to adjudicate a case consistent with the law governing that

adjudication. As our recent cases have emphasized, “[t]his distinction guards against the

improper elevation of a court’s failure ‘to comply with the requirements for exercising its

authority to the same level of gravity as a lack of subject matter jurisdiction.’” Jones, 293 Va. at

47 (quoting Nelson v. Warden, 262 Va. 276, 281 (2001)).

2.

The Constitution of Virginia vests courts with the “judicial power” to adjudicate classes

of cases and controversies determined by the General Assembly. Va. Const. art. 6, § 1.

Viewed correctly, subject matter jurisdiction focuses on the “subject of the case” not the

“particular proceeding that may be one part of [the] case.” In re Commonwealth, 278 Va. at 11

(emphasis added). Code § 17.1-513 grants circuit courts “original and general jurisdiction” over

“criminal” cases “in which an appeal may be had to the Supreme Court.” A Virginia court’s

“jurisdiction to revoke a convict’s probation and suspension of sentence is part of [the] criminal

process.” Green v. Commonwealth, 263 Va. 191, 194 (2002); see Richardson v. Commonwealth,

131 Va. 802, 807-08 (1921). 3

3
A post-conviction revocation proceeding, however, “is not a stage of a criminal
prosecution.” Johnson v. Commonwealth, 296 Va. 266, 275 (2018) (emphasis added) (quoting
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)); see also Pierce v. Commonwealth, 48 Va. App.
660, 668 (2006) (stating that “[w]hile a revocation hearing is a criminal proceeding, it ‘is not a
stage of a criminal prosecution’” (citation omitted)).

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 Several procedural statutes govern the proper use of a court’s authority following the

imposition of a criminal sentence. A trial court has the authority to “suspend [the] imposition of

sentence or suspend the sentence in whole or part.” Code § 19.2-303. In addition, a court “may

place the defendant on probation under such conditions as the court shall determine.” Id.

Suspension and probation are “distinct but overlapping” concepts. Collins v. Commonwealth,

269 Va. 141, 145 (2005). A suspension of a criminal sentence is “either delay in the imposition

of a sentence for [a] crime or the staying of execution of the sentence imposed,” Richardson, 131

Va. at 808, and does not necessarily require the imposition of probation, Collins, 269 Va. at 145.

Suspension and probation may include distinct conditions, but both carry a condition of good

behavior, “whether expressly so stated or not,” Coffey v. Commonwealth, 209 Va. 760, 763

(1969) (citation omitted). See also Burnham v. Commonwealth, Record No. 181096, 2019 WL

5607887, at *2 (Va. Oct. 31, 2019) (“Even when an order imposing a suspended sentence does

not contain an express ‘condition of good behavior, that condition is implicit in every such

suspension . . . .’” (quoting Marshall v. Commonwealth, 202 Va. 217, 219 (1960))).

In pertinent part, Code § 19.2-306 imposes two time limitations on the revocation of a

suspended sentence. The first time limitation in the statute states that a sentencing court “may

revoke” a suspended sentence for any cause occurring “at any time within the probation period,

or within the period of suspension fixed by the court.” Code § 19.2-306(A). If neither period

was fixed, the court may revoke a suspended sentence for any “cause the court deems sufficient

that occurred within the maximum period for which the defendant might originally have been

sentenced to be imprisoned.” Id. The second time limitation contained in the statute states that a

court

may not conduct a hearing to revoke the suspension of sentence
unless the court issues process to notify the accused or to compel

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 his appearance before the court within one year after the expiration
of the period of probation or the period of suspension or, in the
case of a failure to pay restitution, within three years after such
expiration. If neither a probation period nor a period of suspension
was fixed by the court, then the court shall issue process within
one year after the expiration of the maximum period for which the
defendant might originally have been sentenced to be incarcerated.

Code § 19.2-306(B).

As for the modification of probation, Code § 19.2-304 simply states that “[t]he 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.” Under Cilwa’s view, Code

§ 19.2-304 contains an implied time limitation that requires the court to increase probation

before the probation period expires, and a trial court’s subject matter jurisdiction over probation

is rigidly dependent upon its compliance with this implied time limitation. If that were true, a

defendant could not do exactly what Cilwa attempted to do in July 2009: negotiate an extension

to the probation period and agree to an extension order being entered after the expiration of that

probation period with the hope of receiving favorable treatment from the revocation court when

it later addresses crimes that occurred prior to the initial expiration date.

We are skeptical of Cilwa’s interpretation of Code § 19.2-304 to include an implied time

limitation for modifying probation. “Statutes that permit the trial court to impose alternatives to

incarceration, such as probation or conditionally suspended sentences, are highly remedial and

should be liberally construed to provide trial courts valuable tools for rehabilitation of

criminals.” Peyton v. Commonwealth, 268 Va. 503, 508 (2004). 4 A liberal construction of Code

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“In order that the effective use of probation be not impaired it is important that those to
whom it is granted shall know that its terms and conditions are to be strictly observed; and it is
likewise important that the power of the court to revoke for breach of its terms and conditions be
not restricted beyond the limitations required by the statutes.” Dyke v. Commonwealth, 193 Va.
478, 484 (1952); see also Grant v. Commonwealth, 223 Va. 680, 684 (1982).

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§ 19.2-304 favors giving a trial court the flexibility to consider and, if appropriate, to adopt an

agreed-upon extension to a probation period if doing so would support the court’s rehabilitation

goals for the criminal and would uphold the court’s equally important duty to protect the public

from recidivist crime.

We need not pass judgment, however, on Cilwa’s argument that Code § 19.2-304

precludes a court (absent a timely revocation event) from entering an agreed-upon order

extending a probation period after the period expires. Even if the statute were to contain this

implied time limitation, violating it would not deprive a court of its subject matter jurisdiction

over the case. Code §§ 19.2-304 and 19.2-306 govern the procedures for the trial court’s

exercise of authority over suspended sentences, probation, and revocation proceedings. Neither

statute grants a trial court categorical judicial power over criminal cases or their attendant

proceedings, and thus, neither can reasonably be read to strip a trial court of subject matter

jurisdiction if the court violates those procedures. Unless a procedural statute clearly states

otherwise, “[t]he validity of a judgment based upon a challenge to the application of [such] a

statute raises a question of trial error, and not a question of [subject matter] jurisdiction,” Pure

Presbyterian Church of Wash., 296 Va. at 56 (citation omitted).

In short, no time limitation in either Code §§ 19.2-304 or 19.2-306 implicates a court’s

subject matter jurisdiction to enter uncontested orders extending probation periods before or after

their expiration. As a result, the parties are free to extend these deadlines, with the trial court’s

concurrence, even after their expiration. Equally so, a probationer is free to advocate on direct

appeal for strict compliance with the statutory time limitations in the absence of an agreement

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between the parties. What a defendant may not do, however, is rely upon these time limitations

as a basis for a collateral attack on an earlier agreed-upon order. 5

Cilwa points out that Wilson v. Commonwealth, 67 Va. App. 82 (2016), takes a different

view. 6 The Commonwealth agrees but urges that we reject Wilson’s reasoning because it “blurs

the distinction between a trial court’s active jurisdiction and subject matter jurisdiction, resulting

in the erroneous holding that ‘[i]f the circuit court lacked “active” jurisdiction over [the

defendant] when it extended his probation in its February 8, 2011 order,’ the defendant could

‘collaterally seek to void the 2011 probation order that extended the period of suspension.’”

Appellee’s Br. at 20 (alterations in original) (quoting Wilson, 67 Va. App. at 93). On this point,

we too view Wilson as erroneous. Defects in active jurisdiction can be waived, see Jones, 293

Va. at 47-48, and even if not waived, such defects are not subject to collateral attack, see Hicks

ex rel. Hicks v. Mellis, 275 Va. 213, 219 (2008). 7

5
To hold otherwise would lead to wholly disproportionate results. Consider a criminal
defendant’s claim that a trial court violated his Fourth Amendment rights, misapplied the
Miranda doctrine, scheduled a trial in violation of his statutory or constitutional speedy trial
rights, conducted a bench trial instead of a requested jury trial, or admitted evidence at trial in
violation of his right of confrontation. “None of these claims, even if conceded to be valid,
renders the underlying judgment void ab initio. Procedural default principles, including Rules
5:25 and 5A:18, still apply, as do traditional finality principles protecting judgments no longer
within the trial court’s active jurisdiction.” Jones, 293 Va. at 47-48.
6
Cilwa argues that the “Court of Appeals ignored Wilson’s binding precedent” (secured
by the interpanel-accord doctrine) “by not addressing whether the September 16, 2009 order was
actually void.” Appellant’s Br. at 16. We view this criticism as misplaced. The Court of
Appeals found it unnecessary to address Wilson because the January 2010 order could be
interpreted to operate on its own without any taint from the allegedly void-ab-initio September
2009 order.
7
Exceptions to this general principle have been recognized in very limited categories of
unlawful exercises of judicial authority that are “so palpable that [they] can be considered void
ab initio,” Cabral v. Cabral, 62 Va. App. 600, 608 & n.3 (2013) (collecting cases). Cilwa’s
allegations that the September 2009 order violated Code §§ 19.2-304 and 19.2-306 fit within
none of these exceptional situations.

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 B. THE JANUARY 2010 ORDER

Cilwa concedes that the January 2010 order was a valid exercise of the trial court’s

jurisdiction, but she argues that it was ineffective to extend her probation because it refers to the

terms of the allegedly void-ab-initio September 2009 order. The Court of Appeals rejected this

argument because even if the September 2009 order were void ab initio, the “January 2010 order

was in no way dependent upon the September 2009 order for its own jurisdictional validity, and

the conditions accompanying the January 2010 order of probation were clear.” Cilwa v.

Commonwealth, Record No. 0687-15-4, 2018 WL 3115789, at *5 (Va. Ct. App. June 26, 2018)

(unpublished). Without expressing any disagreement with the reasoning of the Court of Appeals,

our holding makes it unnecessary for us to address the January 2010 order.

C. THE CONTRACTUAL BAR

Cilwa argues, in the alternative, that she extended her probation by forming a contract

with the trial court that terminated upon her fulfillment of certain conditions subsequent —

namely, the completion of her substance-abuse-treatment program in January 2013. We

disagree.

In suspending a sentence, a trial court “does not make a contract with the accused, but

only extends to him the opportunity which the State affords him to repent and reform. It is the

free gift of the Commonwealth, and not a contract to relieve him from the punishment which fits

his crime.” Richardson, 131 Va. at 810; see also Burnham, 2019 WL 5607887, at *2; Marshall,

202 Va. at 219; Berry v. Commonwealth, 200 Va. 495, 498 (1959) (observing that “probation [is]

a matter of favor, not contract” (citation omitted)).

The September 2009 order indefinitely extended Cilwa’s probation. Both Cilwa and the

Commonwealth gave various reasons for jointly requesting an indefinite extension, including the

11
desire for “additional time on probation to complete residential substance abuse treatment and

aftercare.” J.A. at 21. But the court’s order did not condition the indefinite extension, either

explicitly or implicitly, on any of the parties’ proffered reasons. The order imposed a term of

indefinite probation “until further order by the Court,” id., thus specifically contemplating

termination of probation by a subsequent court order. As the Court of Appeals observed, “[t]he

stated purpose of the request for extension was to allow for [Cilwa’s] completion of inpatient

substance abuse treatment and the disposition of her pending felony charges, but the order

clearly characterizes the duration of the extension as indefinite,” and thus continuous, “until

further order of the court.” Cilwa, 2018 WL 3115789, at *5 (emphases in original).

III.

Because the trial court acted within its subject matter jurisdiction when it entered the

September 2009 order, Cilwa cannot collaterally attack that order as void ab initio. The trial

court did not err by entering later revocation orders predicated on the September 2009 order, and

the Court of Appeals did not err in affirming the judgment of the trial court. We therefore affirm

the judgment of the Court of Appeals.

Affirmed.

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