COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Overton ∗
Argued at Norfolk, Virginia
ROBERT ALEX ESPARZA
OPINION BY
v. Record No. 2602-97-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge
Edward W. Webb, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
At a hearing to determine whether the suspended portion of
his sentence should be revoked, Robert Alex Esparza
("appellant") moved the court to reduce his "period of active
incarceration to time served." The court refused to entertain
appellant's motion on its merits, stating that it had no
authority to grant the motion because appellant was sentenced in
accordance with an accepted plea agreement. Appellant appeals
the court's refusal to hear his motion for sentence
∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
modification. For the reasons set forth below, we affirm
appellant's conviction.
I.
FACTUAL BACKGROUND
Appellant was indicted on two counts of felony forgery and
two counts of felony uttering in violation of Code § 18.2-179.
The appellant and the prosecution entered into a written plea
agreement, which provided that, upon pleading guilty to all four
charges, appellant would serve two years in prison for each
forgery charge and one year for each uttering charge. The
parties also agreed that five years of the six-year sentence
were to be suspended on the condition that appellant be of good
behavior for six years and pay court costs and restitution. On
August 12, 1996, the trial court accepted the plea agreement and
sentenced appellant accordingly, requiring him to report to the
Virginia Beach Correctional Center on September 16, 1996 to
begin serving his one year term of incarceration.
Appellant failed to report to the Correctional Center. On
November 25, 1996, the circuit court ordered appellant to show
cause why the suspended five years of his sentence should not be
revoked. Following his arrest and the scheduling of a
revocation hearing, appellant filed a "Motion for Sentence
Modification," which asked the court to reduce his "period of
active incarceration to time served." As grounds for this
request, appellant cited: (1) his mother's health, which
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required him to move to California to care for and financially
support her, (2) his own "serious medical conditions," and (3)
his gainful employment and good behavior following his
convictions in 1996.
At appellant's revocation hearing on October 21, 1997, the
judge heard argument on appellant's motion. Appellant's counsel
argued:
[T]he reason that [Mr. Esparza] did not show
up for the jail time was because of the
health of his mother. . . . [We are] asking
the court to modify the original sentence to
allow him to return to California [to help
her]. In addition, he has developed extreme
ill health problems related to his back.
The trial court denied the motion, stating:
I believe everything you’re telling me, but
this defendant did sign a plea agreement.
This was not [the trial judge's] sentence,
and I don't think that I can change a
written plea agreement that's been put into
an order. I mean - and it's too late to -
he entered a plea of guilty. The plea
agreement has been accepted, and he's been
sentenced according to the terms of the plea
agreement. I don't think that I can amend a
sentence that was made pursuant to a plea
agreement.
After his motion was denied, appellant addressed the
revocation issue, presenting evidence concerning his mother's
illness, his own medical condition, and his employment
activities since 1996. Notwithstanding appellant's evidence
which he advanced to explain his failure to report to the
Correctional Center when ordered by the court, the judge revoked
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the five suspended years of appellant's sentence and
re-suspended four of them, thus sentencing appellant to an
additional one year term of incarceration. 1
Appellant contends the circuit court erred in refusing to
entertain his motion for sentence modification at his revocation
hearing. We agree.
Code § 19.2-303 states:
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.
The issue on appeal is a matter of first impression under
Virginia law. We hold that Code § 19.2-303 reflects the
legislature's intent to provide for review and suspension of
sentences imposed for all felony convictions provided the
1
In pronouncing its ruling, the judge stated:
Mr. Esparza, the court might have been a lot
more sympathetic had you gone [to
California] and set up some mechanism and
gotten [your mother] organized and then come
back voluntarily to serve your time; but we
had to come and get you out there. You are
in violation. You had a year to serve.
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defendant has not been sent to the Department of Corrections. 2
The provision becomes effective post-sentencing and, in the
absence of limiting language, we conclude the legislature did
not intend to limit the application of Code § 19.2-303 to cases
of convictions obtained upon a plea of not guilty or an open
plea entered without agreement.
The Commonwealth cites People v. Evans, 673 N.E.2d 244
(1996), in support of its argument that the court is without
authority to modify a sentence under Code § 19.2-303 when the
sentence is imposed pursuant to a plea agreement. 3 The court in
Evans essentially premised its disposition on contract
principles as applied to plea agreements. See id. at 247-48.
In addition, the terms of the Illinois rule construed in Evans
differ from, and were adopted to serve an entirely different
purpose than those contained in Code § 19.2-303. 4
2
We do not reach the question of whether Code § 19.2-303
provides authority for the court to modify a sentence by
increasing or decreasing the term of years imposed upon
conviction, as that issue is not before us.
3
In Evans, the Supreme Court of Illinois, construing
Illinois’ Rule 604(d), found that modifying a sentence entered
pursuant to a plea agreement would controvert its policy of
encouraging properly administered plea bargains and held that
the Rule did not apply to cases involving negotiated plea
agreements. 673 N.E.2d at 248-50.
4
Rule 604(d) prohibits defendants from appealing the
judgment of a court that was entered upon a plea of guilty
unless the defendant first moves that court to reconsider its
sentence within a definite time period. See Evans, 673 N.E.2d
at 248. The purpose of this Rule is "to reduce the large number
of appeals being taken from guilty pleas." Id.
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Even if we applied the Evans contract analysis urged by the
Commonwealth, we would hold that the trial court possessed power
to act under Code § 19.2-303, notwithstanding the execution of a
plea agreement. A basic rule applied when construing contracts
is that the law in force on the date a contract is formed
determines the rights of its parties. Paul v. Paul, 214 Va.
651, 653, 203 S.E.2d 123, 125 (1974) ("The law effective when
the contract is made is as much a part of the contract as if
incorporated therein."); Citizens Mut. Bldg. Assoc. v. Edwards,
167 Va. 399, 404, 189 S.E. 453, 455 (1937). Code § 19.2-303 was
in effect when the plea agreement was executed, and when the
court accepted it and imposed sentence accordingly. It follows
that the code provision for modification of sentence
post-conviction must be read as forming part of that agreement.
Furthermore, the purpose of the statute may be considered
in determining whether a felony conviction entered pursuant to a
plea agreement is embraced within its terms. See Stanley v.
Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925) (stating
that, when a court must determine whether something is embraced
within the terms of a statute, the statute should be construed
"'with reference to its subject matter, and the object sought to
be obtained, as well as the legislative purpose in enacting it;
and its language should receive that construction which will
render it harmonious with that purpose rather than that which
will defeat it.'" (quoting Mapp v. Holland, 138 Va. 519, 527,
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122 S.E. 430, 433 (1924))). See also Tobacco Growers' Coop.
Ass'n v. Danville Warehouse Co., 144 Va. 456, 465, 132 S.E. 482,
485 (1926) ("If possible, the language [of a statute] should
always be so construed as to give effect to the statute['s
purpose]."). The purposes of Code § 19.2-303 are rehabilitative
in nature. See Dyke v. Commonwealth, 193 Va. 478, 484, 69
S.E.2d 483, 486 (1952) (stating that Code § 53-272, a
predecessor of Code § 19.2-303, should be liberally construed so
as to "afford to trial courts a valuable means of bringing about
the rehabilitation of offenders against the criminal laws"). We
find nothing in the statutory scheme as articulated by the
legislature to suggest that the post-sentencing rehabilitative
purposes and goals of Code § 19.2-303 are inapplicable to felons
convicted pursuant to a plea agreement.
The Commonwealth also argues that under Rule 3A:8(c)(3) and
(4), a trial court has no authority to modify a sentence entered
pursuant to a plea agreement. 5 This argument essentially invokes
the application of the same contract analysis, which we have
determined is not conclusive in this case and which, as noted,
fails to support the Commonwealth's position. The Commonwealth
also invokes case law governing the post-sentence withdrawal of
5
Rule 3A:8(c)(3) states "[i]f the court accepts [a] plea
agreement, the court shall inform the defendant that it will
embody in its judgment and sentence the disposition provided for
in the agreement." Rule 3A:8(c)(4) provides that if the court
rejects the proposed plea, "neither party shall be bound by the
plea agreement."
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guilty pleas, which is premised on principles likewise not
applicable here. See Holler v. Commonwealth, 220 Va. 961, 265
S.E.2d 715 (1980); Lilly v. Commonwealth, 218 Va. 960, 243
S.E.2d 208 (1978).
Finally, the Commonwealth argues that modification of a
sentence imposed pursuant to a plea agreement is incompatible
with the public interest. We find this argument inapposite to
the issue presented. Consideration of the public interest,
while pertinent to the disposition of the motion to modify a
sentence pursuant to Code § 19.2-303, is not determinative of
the jurisdictional question raised here. The Commonwealth's
argument that appellant failed to mitigate his offense as
required by Code § 19.2-303 is likewise misplaced because it
addresses the merits of the motion and not the jurisdictional
arguments appellant presents.
In sum, we hold that Code § 19.2-303 invests courts with
discretionary authority to modify a sentence post-conviction in
all felony cases, including those in which the defendant has
been sentenced pursuant to a plea agreement so long as the
defendant is in the local jail and has not been delivered to the
Department of Corrections. The trial court's determination to
the contrary was, therefore, erroneous.
We find the court's error, however, to be harmless. A
nonconstitutional error is harmless when "it plainly appears
from the facts and circumstances of a particular case that [it]
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did not affect the verdict . . . ." Lavinder v. Commonwealth,
12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc).
"An error does not affect a verdict if a reviewing court can
conclude, without usurping the [trial court's] fact finding
function, that, had the error not occurred, the verdict would
have been the same." Id.
In this case, it plainly appears from the record that
appellant's motion for sentence modification would have been
denied had the court entertained it. The court faced two
questions at appellant's revocation hearing, viz., whether to
grant appellant's motion for sentence modification under Code
§ 19.2-303 and whether to revoke the suspended portion of
appellant’s sentence under Code § 19.2-306. Both statutes serve
the same rehabilitative purpose. See Grant v. Commonwealth, 223
Va. 680, 684, 292 S.E.2d 348, 350 (1982) (stating that probation
statutes are highly remedial, and analyzing Code § 19.2-306 in
that light). 6 Thus, we may presume the court considered this
6
Whether the issue before a court involves the revocation of
sentence under Code § 19.2-306 or suspension of sentence under
§ 19.2-303, the considerations underlying the court's decision
are the same. In Virginia, statutes providing for the
imposition or revocation of suspended sentencing are highly
remedial and exist, inter alia, for the purpose of furthering
the rehabilitation of the accused. See Slayton v. Commonwealth,
185 Va. 357, 365-66, 38 S.E.2d 479, 483 (1946) (stating that the
purpose of a predecessor to §§ 19.2-303 and 19.2-306 is to
"restor[e] to a useful place in society an offender who is a
good social risk"); Richardson v. Commonwealth, 131 Va. 802,
811, 109 S.E. 460, 462 (1921) (examining Virginia's original
statute on the subject of sentence suspension and revocation of
suspension, and stating that the statute is "highly remedial").
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rehabilitative purpose when it revoked appellant's suspended
sentence and imposed a portion of the suspended sentence. See
Samuels v. Commonwealth, 27 Va. App. 119, 129, 497 S.E.2d 873,
878 (1998) (stating that every act of a court of competent
jurisdiction is presumed to have been rightly done). Further,
although the court never ruled on appellant's motion, appellant
relied on identical grounds and presented identical evidence to
support his position as to both questions raised at the hearing,
viz., his mother's medical condition and needs, his personal
medical condition, and his gainful employment following
conviction in 1996. As is manifest in the record, the court
considered appellant's evidence and arguments when deciding to
revoke the suspended sentences. Having done so, the court
imposed a portion of the suspended sentences, requiring
appellant to serve two years of incarceration rather than one
year as originally sentenced pursuant to his plea agreement.
Because the court imposed a sentence in conjunction with the
revocation proceeding that was longer than that sought by
appellant in his motion to reduce his sentence to "time served,"
and because the court, in doing so, based its ruling on the same
grounds, the same evidence, and the same sentencing
considerations that it would have considered had it entertained
See generally W. LaFave & J. Israel, Criminal Procedure
§§ 25.3(a-b), 25.4(a) (1984) (stating that the state's interest
in rehabilitating an offender and insuring the public safety is
relevant to both the granting and revocation of probation).
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appellant's motion for a reduced sentence, we hold that the
trial court's refusal to entertain the motion was harmless.
Accordingly, we affirm appellant's conviction.
Affirmed.
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Benton, J., concurring, in part, and dissenting, in part.
I concur in the majority opinion's holding "that Code
§ 19.2-303 invests the [trial judge] with discretionary
authority to modify a sentence post-conviction in all felony
cases, including those in which the defendant has been sentenced
pursuant to a plea agreement." However, I dissent from its
further holding that the trial judge's contrary ruling was
harmless error.
The trial judge had before her two distinct matters -- the
Commonwealth's motion to revoke Robert Esparza's suspended
sentence and Esparza's motion to reduce his sentence of one year
of active incarceration to the time he had already served. That
the trial judge believed Esparza should receive punishment for
violating the terms of his suspended sentence does not mean, a
fortiori, that the trial judge would not have reduced Esparza's
original sentence of active incarceration to time served if she
believed she had the authority to so do. Certainly, the trial
judge could have concluded that because she had no authority to
modify the active sentence and because Esparza would be
incarcerated for a year, the revocation of one year of the
suspended sentence was not significantly burdensome.
The trial judge enjoys wide discretion in applying Code
§ 19.2-303. Therefore, I believe we cannot presume that the
result the trial judge reached upon application of a faulty
premise foretells what the trial judge would have done had she
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known the full and proper extent of her authority. In view of
the significant error and the minimal inconvenience to the
proper administration of justice, I would remand this matter to
the trial judge for reconsideration.
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