COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
ELOISE H. CUFFEE-SMITH
OPINION BY
v. Record No. 1098-02-1 JUDGE LARRY G. ELDER
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MATHEWS COUNTY
William H. Shaw, III, Judge
Charles E. Haden for appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Eloise Cuffee-Smith (appellant) appeals from the sentence
imposed following her felony conviction for her second or
subsequent offense of driving after having been declared an
habitual offender pursuant to Code § 46.2-357. On appeal, she
contends the trial court erroneously concluded it lacked the
authority to place her in an electronic home monitoring program
pursuant to Code § 53.1-131.2. The Commonwealth contends
appellant failed to preserve this argument for appeal. We hold
appellant preserved the issue for appeal but conclude, on the
merits, that a person convicted under a statute requiring a
mandatory minimum period of incarceration is ineligible for
electronic incarceration pursuant to Code § 53.1-131.2 for the
duration of the mandatory sentence. Thus, we affirm.
I.
BACKGROUND
Pursuant to Code § 46.2-357, appellant was indicted for the
offense of driving after having been declared an habitual
offender, her second or subsequent offense, for an act of
driving which occurred on June 28, 2001. At trial on January 9,
2002, appellant was convicted of that offense. Appellant
concedes the sufficiency of the evidence to support her
conviction.
At appellant's request, the trial court allowed her to be
evaluated for the Diversion Center Incarceration Program, but
her attorney represented she did not qualify solely because she
is diabetic. At appellant's sentencing hearing, appellant's
attorney asked the court "to put [appellant] on electronic
monitoring," but noted this option might also be problematic
because "[appellant] lives in Portsmouth and this is Mathews
County."
The trial court noted "[t]he statute requires a minimum
mandatory sentence of one year" and that "[e]lectronic
monitoring . . . is not an option for a mandatory sentence."
The trial court indicated it did not "necessarily agree with
[that position]" but that it was the position taken by the
Attorney General and the Supreme Court's "legal services" and
that the trial court "ha[d] to abide by it." The trial court
noted the number of appellant's prior convictions for driving on
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a suspended license was "just enormous" and sentenced her to
five years in prison with four years suspended with
authorization for work release "if she is eligible."
II.
ANALYSIS
A.
PROCEDURAL BAR
The Commonwealth argues appellant's assignment of error is
procedurally barred because she failed to object to the court's
ruling that electronic monitoring was not an option where the
offense requires a mandatory sentence. It also contends she
failed to establish that monitoring was otherwise available,
given that the offense occurred in Mathews County whereas she
resided in Portsmouth. We hold that appellant properly
preserved her assignment of error for appeal.
Rule 5A:18 provides that "[n]o ruling of the trial court
. . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling . . . ." As the Commonwealth expressly
acknowledges, the purpose of the rule is to allow the trial
court to consider the issue and take corrective action in order
to avoid unnecessary appeals, reversals and mistrials. See,
e.g., Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d
885, 886 (1992). Formal exceptions to rulings are not necessary
as long as the party "makes known to the court the action which
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he desires the court to take or his objections to the action of
the court and his grounds therefor." Code § 8.01-384(A). Rule
5A:18 "does not prohibit reliance on statutes or cases not
presented to the trial court to support, on appeal, a position
otherwise adequately presented at trial." Lash v. County of
Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) (en
banc).
Here, appellant's counsel said he had spoken to "the
probation officer" and that, because appellant was ineligible
for the diversion program due to her diabetes, "the only other
option is to put [appellant] on electronic monitoring." Counsel
expressed concern only about the fact that appellant might not
be eligible for electronic monitoring because she resided in a
different jurisdiction than the jurisdiction in which the
offense occurred. The trial court ruled in response that
electronic monitoring was not available in cases involving
mandatory sentences, citing an opinion of the Attorney General
and the Supreme Court's "legal services" in support. Thus, the
trial court was aware of the action appellant desired the court
to take and appellant's opinion that the only problem with that
action was practical rather than legal because she resided
outside the jurisdiction. Requiring appellant to object after
she requested electronic monitoring and the trial court ruled it
lacked legal authority to employ electronic monitoring in a case
requiring a mandatory minimum sentence "would, in effect,
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recreate the requirement of noting an exception to a final
adverse ruling of the trial judge." Martin v. Commonwealth, 13
Va. App. 524, 530, 414 S.E.2d 401, 404 (1992). Counsel's
request for a sentence including electronic monitoring was
sufficient to preserve for appeal his objection to the trial
court's conclusion that it lacked such authority in a case
involving a mandatory sentence.
Further, we hold that the trial court, by ruling electronic
incarceration was not an option for legal reasons, implicitly
concluded it was not a practical impossibility due to the fact
that appellant resided in another jurisdiction. Thus, we hold
the absence of an express statement to this effect in the record
does not bar the appeal.
B.
AVAILABILITY OF ELECTRONIC INCARCERATION PURSUANT TO
CODE § 53.1-131.2 DURING TERM OF MANDATORY MINIMUM SENTENCE
Appellant contends the trial court erroneously concluded it
lacked authority to impose electronic incarceration pursuant to
Code § 53.1-131.2 when it sentenced her for a felony under Code
§ 46.2-357(B)(3), which required imposition of a mandatory
minimum sentence. Based upon the plain language of both
statutes, we disagree and affirm the trial court's ruling.
We take guidance from principles of statutory construction,
which provide that we must construe statutes to "ascertain and
give effect to the legislative intent." Branch v. Commonwealth,
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14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). Under "[t]he
maxim of statutory construction expressio unius est exclusio
alterius . . . [,] where a statute speaks in specific terms, an
implication arises that omitted terms were not intended to be
included within the scope of the statute." Commonwealth ex rel.
Dep't of Corr. v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100
(2000).
Code § 53.1-131.2 contains a general authorization allowing
courts, in appropriate cases, to employ electronic incarceration
as an alternative to traditional incarceration in a state or
local correctional facility. That code section provides in
relevant part as follows:
A. Any court having jurisdiction for
the trial of a person charged with a
criminal offense, a traffic offense or an
offense under Chapter 5 . . . of Title 20
may, if the defendant is convicted and
sentenced to confinement in a state or local
correctional facility, and if it appears to
the court that such an offender is a
suitable candidate for home/electronic
incarceration, assign the offender to a
home/electronic incarceration program as a
condition of probation, if such a program
exists, under [appropriate supervision as
specified in the statute]. However, any
offender who is convicted of [certain
enumerated violent or sexual offenses
proscribed by Chapter 4 of Title 18.2] shall
not be eligible for participation in the
home/electronic incarceration program
. . . .
Code § 53.1-131.2 (emphasis added).
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Under the express language of Code § 53.1-131.2, an
individual must be on probation in order to be eligible for
electronic incarceration pursuant to that statute. Probation,
"[t]o be effective, . . . must be concurrent with a coordinate
term of suspension of sentence." Hartless v. Commonwealth, 29
Va. App. 172, 175, 510 S.E.2d 738, 739 (1999) (relying in part
on Code § 19.2-303, which provides that, "[a]fter conviction,
. . . the court may suspend . . . the sentence in whole or part
and in addition may place the accused on probation under such
conditions as the court shall determine . . ."). Thus,
electronic incarceration pursuant to Code § 53.1-131.2, which is
imposed "as a condition of probation," is a sentencing option
available only for those individuals sentenced to an active term
of incarceration which the trial court retains the authority to
suspend and chooses to suspend conditioned on probation. See,
e.g., Code § 19.2-303.
Here, appellant's conviction for driving after having been
declared an habitual offender was appellant's second or
subsequent such offense, as described in Code § 46.2-357(B)(3), 1
1
Code § 46.2-357(B) provides in relevant part as follows:
Except as provided in subsection D, any
person found to be an habitual offender
under this article, who is thereafter
convicted of driving a motor vehicle or
self-propelled machinery or equipment in the
Commonwealth while the revocation
determination is in effect, shall be
punished as follows:
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and was punishable under subsection (B)(2). The portion of that
subsection relevant to this appeal provides for "confinement in
a state correctional facility for not less than one year nor
more than five years or, in the discretion of the jury or the
court trying the case without a jury, by confinement in jail for
1. If such driving does not of itself
endanger the life, limb, or property of
another, such person shall be guilty of a
Class 1 misdemeanor punishable by a minimum,
mandatory term of confinement in jail for no
less than ten days, which shall not be
suspended except in cases designated in
subdivision 2 (ii) of this subsection.
2. If such driving of itself endangers
the life, limb, or property of another or
takes place while such person is in
violation of §§ 18.2-36.1, 18.2-51.4,
18.2-266 or § 46.2-341.24, irrespective of
whether the driving of itself endangers the
life, limb or property of another and the
person has been previously convicted of a
violation of §§ 18.2-36.1, 18.2-51.4,
18.2-266 or § 46.2-341.24, such person shall
be guilty of a felony punishable by
confinement in a state correctional facility
for not less than one year nor more than
five years or, in the discretion of the jury
or the court trying the case without a jury,
by confinement in jail for twelve months and
no portion of such sentence shall be
suspended. However, . . . if the sentence
is more than one year in a state
correctional facility, any portion of such
sentence in excess of one year may be
suspended . . . .
3. If the offense of driving while a
determination as an habitual offender is in
effect is a second or subsequent such
offense, such person shall be punished as
provided in subdivision 2 of this
subsection, irrespective of whether the
offense, of itself, endangers the life,
limb, or property of another.
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twelve months," and it expressly states that "no portion of [the
minimum one-year or twelve-month] sentence shall be suspended."
Code § 46.2-357(B)(2) (emphasis added). Because the one-year
mandatory minimum sentence under Code § 46.2-357(B)(2) may not
be suspended, probation may not be imposed during this period
and, thus, electronic incarceration pursuant to Code
§ 53.1-131.2 may not be employed. Under the facts of this case,
electronic incarceration was an option for the trial court only
for the four-year portion of appellant's sentence which the
trial court was authorized to, and did, suspend pursuant to Code
§ 46.2-357(B)(2).
For these reasons, we affirm the conviction and sentence.
Affirmed.
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