Charles v. Com.

Present: All the Justices

ATIF CHARLES

v. Record No. 041919 OPINION BY JUSTICE ELIZABETH B. LACY
June 9, 2005
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether participation in the

Detention Center Incarceration Program (the Program), Code

§ 19.2-316.2, is incarceration and whether a probationer is

entitled to credit for time served in the Program when his

probation is later revoked.

Facts

On October 16, 1997, Atif A. Charles was sentenced to

five years imprisonment with four years suspended following

his conviction for possession of heroin with the intent to

distribute, under Code § 18.2-248. After serving his one-year

active sentence, Charles was placed on probation. When he

violated conditions of probation, the trial court revoked the

suspended sentence, resuspended the sentence and placed

Charles on probation. One condition of Charles' second

probation was that he enter and complete the Program. Charles

completed the Program in five months but then violated other

conditions of his probation. The trial court revoked his

second probation and imposed the unserved four years of his

original five-year sentence.
 Charles appealed to the Court of Appeals of Virginia,

arguing that his four-year sentence should have been reduced

by the five months he served in the Program. Conceding that

he had not raised this issue in the trial court as required by

the contemporaneous objection rule, Rule 5A:18, Charles argued

that the matter should be considered by the Court of Appeals

under the ends of justice exception to that Rule. The Court

of Appeals declined to apply the ends of justice exception,

finding that participation in the Program was a condition of

probation, not incarceration. Charles v. Commonwealth, No.

0616-03-1, slip op. at 5-6 (Va. Ct. App. July 20, 2004).

Furthermore, construing Code § 19.2-316.2, the Court of

Appeals determined that whether participation in the Program

should be credited against an outstanding sentence was a

matter within the trial court's discretion. Id., slip op.

at 7. We awarded Charles an appeal.

Discussion

Charles argues that the Court of Appeals erred in

refusing to apply the ends of justice exception because his

participation in the Program was incarceration and, by failing

to provide credit for that period of incarceration, the trial

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court effectively altered the sentence imposed in his October

16, 1997 sentencing order, a final order under Rule 1:1.*

Rule 5A:18, like our Rule 5:25, allows an appellate court

to consider a matter not preserved by objection in the trial

court "to attain the ends of justice." Application of the

ends of justice exception is appropriate when the judgment of

the trial court was error and application of the exception is

necessary to avoid a grave injustice or the denial of

essential rights. Cooper v. Commonwealth, 205 Va. 883, 889,

140 S.E.2d 688, 693 (1965). In reviewing the Court of

Appeal's judgment, we begin by determining whether that Court

was correct in holding that there was no error in the trial

court's judgment. Tucker v. Commonwealth, 268 Va. 490, 493,

604 S.E.2d 66, 67-68 (2004).

A. Trial Court Error

Participation in the Program as Incarceration

The Commonwealth argues, and the Court of Appeals held,

that, pursuant to Code § 19.2-316.2, participation in the

Program is a condition of probation and therefore such

participation is not incarceration. Designating an activity

as an authorized condition of probation, however, is not a

description of the nature of the activity. Indeed, the

*
Unless otherwise provided by statute, see e.g., Code
§ 8.01-428, Rule 1:1 prohibits the modification of a final

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Commonwealth acknowledges this fact by suggesting that

additional evidence is necessary in this case to determine

whether conditions of the Program "are strongly similar to

traditional incarceration or whether they more closely

resemble some lesser form of restraint." Additional evidence

is not required, as the Commonwealth suggests, because the

statutes addressing the Program are dispositive of the issue

in this case.

Code § 53.1–67.8 authorizes the Department of Corrections

to "maintain a system of residential detention centers to

provide a highly structured, short-term period of

incarceration for individuals committed to the Department

under the provisions of § 19.2-316.2" (emphasis added). Code

§ 19.2-316.2 specifically labels the program as an

"incarceration" program; it refers to "facilities available

for confinement," release from "confinement," and a "detention

center incarceration program" that required "more security or

supervision" than other programs. We do not consider these

references to "incarceration" to be inadvertent; by describing

the Program in this manner, the General Assembly has

determined that participation in the Program is incarceration.

Accordingly, we hold that Charles was incarcerated when

he participated in the Program. Therefore, when Charles'

order more than 21 days after the date of entry.

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second probation was revoked, he had been incarcerated for one

year and five months. By sentencing him to four years

imprisonment, the trial court added five months incarceration

to Charles' original five-year sentence.

Credit for Time Served in the Program

We now consider whether the Court of Appeals' correctly

held that the decision to grant Charles credit for the period

of time he served in the Program was a matter of trial court

discretion. The Court based this holding on its construction

of Code § 19.2-316.2. Subsection (B)(3) of that section

specifically directs the trial court not to credit time spent

in the Program to parolees, but the statute is silent with

regard to the treatment of such time for probationers. The

Court of Appeals construed the General Assembly's silence in

this regard as an affirmative election to place the crediting

decision in the discretion of the trial court and concluded

that, in this case, the trial court did not abuse its

discretion in refusing to grant Charles credit for the time he

served in the Program. Charles, slip op. at 9, 11.

We disagree with the Court of Appeals' construction of

the statute and its conclusion. Rule 1:1 and long standing

case law applying that rule preclude a trial court from

entering a second sentencing order altering an original

sentencing order that has become final. Robertson v.

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Superintendent of the Wise Correctional Unit, 248 Va. 232,

236, 445 S.E.2d 116, 118 (1994); Conner v. Commonwealth, 207

Va. 455, 457, 150 S.E.2d 478, 479 (1966). The policy of

finality contained in Rule 1:1 is not absolute, however. The

General Assembly has enacted various exceptions to this

policy. See, e.g., Code § 19.2-303 (court may modify unserved

portion of sentence at any time before defendant is

transferred to Department of Corrections); Code § 8.01-428

(court may modify final order in certain listed

circumstances).

Code § 19.2-612(B)(3) provides an exception to Rule 1:1.

By denying a parolee credit for time incarcerated during the

Program, the General Assembly has authorized a trial court to

enter a second sentencing order upon revocation of parole that

extends the length of incarceration imposed by the original

sentencing order. The absence of such a provision for

probationers indicates that the General Assembly knew that the

trial court could not enter a second sentencing order that

altered a sentencing order that had become final under Rule

1:1 and did not intend to alter the application of that Rule.

Waterman v. Halverson, 261 Va. 203, 207, 540 S.E.2d 867, 869

(2001) (legislature presumed to be familiar with existing

rules and case law when enacting legislation).

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 In the absence of any legislative exception to Rule 1:1,

the trial court did not have the authority or the discretion

to enter a second sentencing order that extended the period of

incarceration beyond that imposed in Charles' October 1999

final sentencing order. See Robertson, 248 Va. at 236, 445

S.E.2d at 118. Accordingly, the Court of Appeals erred in

holding that Code § 19.2-316.2 vested the trial court with the

discretion to grant or deny Charles credit for the time he

served in the Program.

B. Grave Injustice

Invoking the ends of justice exception to the

contemporaneous objection rule requires a determination not

only that there was error in the judgment of the trial court

but also that application of the exception is necessary to

avoid a grave injustice. The latter predicate is also met in

this case.

In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509

(1973), this Court considered whether a trial judge could

shorten the sentence suggested by the jury because the jury's

sentence exceeded that allowed by law. We stated:

Where the sentence imposed is in excess of that
prescribed by law, that part of the sentence which
is excessive is invalid. Crutchfield v.
Commonwealth, 187 Va. 291, 46 S.E.2d 340 (1948). A
sentence in excess of one prescribed by law is not
void ab initio because of the excess, but is good
insofar as the power of the court extends, and is

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 invalid only as to the excess. Royster v. Smith,
195 Va. 228, 77 S.E.2d 855 (1953).

Id. at 305, 199 S.E.2d at 510-11. Therefore, that portion of

Charles' sentence beyond the five years imposed in the final

sentencing order is void. Denying Charles his liberty on the

basis of a void sentence would impose a grave injustice upon

him. The application of the ends of justice exception is,

therefore, fully justified in this case.

Conclusion

In conclusion, we hold that participation in the

Detention Center Incarceration Program is incarceration. Even

though such incarceration is served as a condition of

probation, it cannot be used upon revocation of probation to

enlarge the sentence imposed in a sentencing order that has

become final under Rule 1:1. Therefore, to achieve the ends

of justice, we will reverse the judgment of the Court of

Appeals and remand this case with instructions to remand the

case to the trial court for entry of an order consistent with

this opinion.

Reversed and remanded.

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