COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia
MICHAEL RICHARD HOLDEN
OPINION BY
v. Record No. 0803-97-4 JUDGE JERE M. H. WILLIS, JR.
JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
Thomas D. Horne, Judge
Elwood Earl Sanders, Jr., Director Capital/
Appellate Services (Public Defender
Commission, on briefs), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Richard Cullen, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellee.
On appeal from his convictions for aggravated sexual battery
of children under the age of thirteen, Michael Richard Holden
contends (1) that the trial court lacked jurisdiction to convict
him, and (2) that the trial court erred in finding that his
possession, creation and dissemination of obscene material
violated a condition of his plea agreement. We disagree and
affirm the judgment of the trial court.
I.
On August 11, 1986, a grand jury indicted Holden on two
counts of forcible sodomy and seven counts of aggravated sexual
battery of children under the age of thirteen. Holden entered
into a plea agreement, whereby he pled guilty to four counts of
aggravated sexual battery. The agreement provided that the trial
court would impose sentence on two counts and would withhold
decision on the other two counts on such terms as the trial court
imposed.
The trial court accepted the plea agreement. On May 13,
1987, it sentenced Holden to serve ten years in prison on each of
two counts of aggravated sexual battery. On the other two
counts, the trial court withheld decision "for a period of ten
years following the defendant's release from confinement" upon
condition that:
1. The defendant shall keep the peace, be
of good behavior, and obey all laws of
this or any other jurisdiction.
2. The defendant shall serve 10 years on
supervised probation following his
release from confinement under the
standard terms and conditions of
probation.
On July 24, 1996, the trial court issued a rule against
Holden to show cause why he should not be held in violation of
the terms of the May 13, 1987 order. Testimony disclosed that
prison officials had seized from Holden letters in which he
explicitly advocated and described a design to engage in sexual
abuse of children.
On December 17, 1996, the trial court ruled that Holden's
misconduct violated the May 13, 1987 order that he "be of good
behavior." The trial court convicted him of the two counts as to
which decision had been withheld.
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II. JURISDICTION
A.
Holden contends first that the trial court lacked
jurisdiction to convict him on the two counts of aggravated
sexual battery as to which decision had been withheld. He argues
that by deferring judgment on his guilty pleas, the trial court
divested itself of jurisdiction over those charges.
Subject matter jurisdiction is the authority granted a court
to adjudicate a class of cases or controversies. Morrison v.
Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). Subject
matter jurisdiction "cannot be waived or conferred on the court
by agreement of the parties." Id. at 169-70, 387 S.E.2d at 755
(citation omitted). "A judgment on the merits made without
subject matter jurisdiction is null and void." Id. at 170, 387
S.E.2d at 755-56 (citation omitted). Therefore, "the lack of
subject matter jurisdiction can be raised at any time in the
proceedings, even for the first time on appeal by the court sua
sponte." Id. at 170, 387 S.E.2d at 756.
In Morrison, the Supreme Court said:
One consequence of the non-waivable
nature of the requirement of subject matter
jurisdiction is that attempts are sometimes
made to mischaracterize other serious
procedural errors as defects in subject
matter jurisdiction to gain an opportunity
for review of matters not otherwise
preserved.
239 Va. at 170, 387 S.E.2d at 756. In Commonwealth v. Smith, 230
Va. 354, 337 S.E.2d 278 (1985), the Supreme Court held that
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failure to comply with a procedural requirement that a
post-conviction bond appeal be decided by a three-judge panel
rather than by a single judge did not divest this Court of
jurisdiction. Id. at 360-61, 337 S.E.2d at 281-82.
Generally, absent an express statutory grant, trial courts
may not dismiss criminal charges on grounds other than the legal
or factual merits. Noting this, Holden mischaracterizes the
trial court's acceptance of the plea agreement and its deferment
of judgment on two of the guilty pleas as a divestiture of
jurisdiction. Holden cites no authority for this position, and
we have found none. He argues only that the trial court was
required to proceed expeditiously to disposition on his guilty
pleas and that its failure to do so was a denial of due process.
However, although error, even constitutional error, may produce
a reversible decision, it does not extinguish jurisdiction.
Deferment of judgment or imposition of sentence may impose
practical difficulties. However, this practice is authorized.
See Code §§ 19.2-298, 19.2-303. The trial court discharged its
duties properly in this case. It neither refused to try the case
nor set the case aside permanently. Rather, it exercised its
discretion soundly in accepting and implementing the plea
agreement proposed by the Commonwealth and Holden. See Rule
3A:8(c). The terms of the plea agreement sought Holden's
rehabilitation, a socially and legally desirable goal.
Acceptance of Holden's plea agreement did not divest the
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trial court of its jurisdiction to adjudicate the charges. The
legislature has granted subject matter jurisdiction to the
circuit courts for all felonies and for "all presentments,
indictments and informations." Code §§ 17-123, 19.2-239. See
Owusu v. Commonwealth, 11 Va. App. 671, 672-73, 401 S.E.2d 431,
431 (1991). The trial court acquired jurisdiction when the
indictments were returned and it proceeded according to the plea
agreement. No action or omission by the trial court relinquished
or extinguished its subject matter jurisdiction.
A contrary result would deem jurisdictional a mere
procedural deviation, resulting in the unwarranted nullification
of consent judgments. Cf. Manns v. Commonwealth, 13 Va. App.
678, 679-80, 414 S.E.2d 613, 615 (1992) (criminal defendant may
not both approbate and reprobate).
Because the trial court had jurisdiction to convict Holden,
we need not consider his argument, raised for the first time on
appeal, that the trial court committed reversible error by
deferring judgment on the pending charges. See Rule 5A:18.
B.
Holden contends also that the trial court lacked
jurisdiction to make a finding of guilt based upon his conduct in
prison. He argues for the first time on appeal that the term of
his good behavior did not commence until his release from prison,
and, therefore, because he was still in prison at the time of his
misconduct, that misconduct could not be a violation of the
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order.
As we have noted, the trial court had jurisdiction to enter
judgment. At the time that Holden misbehaved, the cases were
pending, awaiting decision by the trial court under the terms of
the plea agreement. By the express language of the order, the
continued deferment of the proceedings was contingent upon
Holden's good behavior. Accordingly, the trial court retained
jurisdiction over the pending cases at the time of the
misconduct. Cf. Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d
343 (1969).
III. GOOD BEHAVIOR
Holden contends that the trial court erred in ruling that he
violated the trial court's order that he be of good behavior. He
argues that the First Amendment shields him from punishment for
the possession, creation and dissemination of documents which
advocate, in sexually explicit terms, illegal sexual relations
with children.
The First and Fourteenth Amendments to the Constitution of
the United States forbid abridging freedom of speech. Similarly,
the Constitution of Virginia provides:
That the freedoms of speech and of the press
are among the great bulwarks of liberty, and
can never be restrained except by despotic
governments; that any citizen may freely
speak, write, and publish his sentiments on
all subjects, being responsible for the abuse
of that right . . . .
Art. I, § 12 (emphasis added). However, obscenity enjoys no
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constitutional protection, Goldstein v. Commonwealth, 200 Va. 25,
27, 104 S.E.2d 66, 67 (1958), and the value of child pornography
has been characterized as "'exceedingly modest, if not de
minimis.'" Osborne v. Ohio, 495 U.S. 103, 108 (1990) (quotation
omitted). See Code § 18.2-372 (defining "obscene").
Good behavior is not limited to an avoidance of criminal
activity.
Probation is a disposition intended to reform
the offender, appropriate in mitigating
circumstances or to promote the public
interest. It provides an opportunity for an
accused to repent and reform, which may be
withdrawn for reasonable cause, determined in
the sound discretion of the trial court.
Therefore, the issue on review of a
revocation is simply whether there has been
an abuse of discretion.
Connelly v. Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244,
245 (1992) (citations omitted) (emphasis in original) (internal
quotation marks omitted). See Hamilton v. Commonwealth, 217 Va.
325, 327, 228 S.E.2d 555, 556 (1976).
Holden demonstrated a predilection to continue the
misconduct that had led to his convictions for aggravated sexual
battery of children under the age of thirteen. He revealed a
cultivation of that predilection so as to create an expectation
that he would be discharged from prison unrehabilitated and would
resume his crimes against children. His misconduct frustrated
efforts to rehabilitate him and enhanced the likelihood that he
would continue to be a threat to children and to public order and
safety. His creation, possession, and dissemination of the
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subject obscene material perpetuated the very conduct embraced by
the charges for which disposition had been deferred.
Accordingly, we find no abuse of discretion in the trial
court's decision to terminate the deferment of judgment. The
judgment of the trial court is affirmed.
Affirmed.
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