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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