Eggleston v. Commonwealth

VERNON EGGLESTON v. COMMONWEALTH OF VIRGINIA

Record No. 1347-16-2

COURT OF APPEALS OF VIRGINIA

SEPTEMBER 12, 2017

UNPUBLISHED

Present: Judges Humphreys, Decker and O'Brien

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Joi Jeter Taylor, Judge¹

Catherine French, Senior Appellate Coordinator (Virginia Indigent Defense Commission, on briefs), for appellant.

Donald E. Jeffrey, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on briefs), for appellee.

Vernon Eggleston appeals a ruling involving a circuit court's enforcement of a term of post-release supervision, ordered pursuant to Code § 19.2-295.2, by imposing a term of post-release incarceration. On appeal, he asserts that only the Parole Board was authorized to enforce the terms of the supervision by re-incarcerating him and that the circuit court lacked concurrent jurisdiction to do so. We hold that the circuit court, in sentencing the appellant for the underlying offenses, ordered only a term of post-release supervision, not one of post-release incarceration. Accordingly, no suspended term of confinement was available for imposition by either body. Consequently, we vacate the circuit court's order imposing post-release incarceration without reaching the appellant's claim.

I. BACKGROUND

In 2011, the appellant was convicted of burglary and grand larceny offenses committed earlier that year. In 2012, he was sentenced to serve a combined three years of incarceration for those offenses. "[P]ursuant to Code [§ ]19.2-295.2," the circuit court issued a sentencing order (the first order) directing that the appellant "be subject to a period of post-release supervision of [three years]." The order "suspended" that period of supervision contingent upon compliance with "terms and conditions" established by the Parole Board, as well as good behavior and various other conditions. The order did not specify any period of post-release confinement to accompany the three years of post-release supervision.

In 2013, the appellant began his three years of post-release supervision. In 2015, the appellant's probation officer issued a major violation report. Based on the appellant's failure to abide by the probation condition requiring him to obey all laws, the probation officer asked the circuit court to issue a capias to bring the appellant before the Parole Board. The court ordered the issuance of a capias to bring the appellant "before this Court forthwith to show cause why his previously suspended sentence(s) should not be revoked." (Emphasis added).

In January 2016, the court entered an amended sentencing order (the second order) nunc pro tunc to the date of the first order. The amended order clarified that following the appellant's release from his term of active incarceration, he was "subject to a period of post-release supervision of [three] years pursuant to Code [§ ]19.2-295.2" during which he was required to be of good behavior. That second order did not suspend the post-release supervision period as the original order had. It simply listed supervision as one of the terms to which the appellant was subject upon release. The second order, like the first, did not mention a period of post-release confinement to accompany the post-release supervision.

Following execution of the capias, the appellant filed a motion to dismiss the show cause, alleging that the probation officer had asked that the appellant be brought before the Parole Board rather than the court. He asserted pursuant to Code § 19.2-295.2 that only the Parole Board, not the circuit court, had jurisdiction to revoke the "suspended time." The Commonwealth opposed the motion, arguing that the circuit court retained concurrent jurisdiction. The prosecutor also represented that the Parole Board was "confused" by the sentencing order's reference to post-release "supervision" without specific reference to a "term of [additional] imprisonment" that was "suspended under post-release supervision." The prosecutor asked the court to amend the sentencing order a second time, to clarify that it had ordered a three-year term of incarceration and suspended that term subject to compliance with the three-year period of post-release supervision. The prosecutor suggested, alternatively, that "suspended time was created by operation of law under [Code §] 19.2-295.2."

The circuit court denied the appellant's motion to dismiss. It ruled that pursuant to Code § 19.2-295.2, it had "jurisdiction and authority," upon request from the Parole Board, to "conduct a hearing to determine the grounds to terminate the period of post[-]release supervision and, if appropriate, recommit the [appellant] to the Department of Corrections." The court did not address the Commonwealth's motion to amend the sentencing order a second time, and no such order was entered.

At another hearing several weeks later, the Commonwealth introduced a transcript excerpt showing that when the judge sentenced the appellant in 2012, she stated from the bench that she was "impos[ing] a period of post-release supervision -- post-release incarceration of three years." (Emphasis added). The 2012 transcript further reflected that the judge stated that the period was "suspend[ed] for three years" upon various conditions, including complying with supervision. Based on the content of the 2012 transcript, the prosecutor renewed her motion fora second nunc pro tunc order, seeking clarification that when the appellant was originally sentenced in 2012, the court ordered not only post-release supervision but also a three-year period of suspended post-release incarceration. The appellant maintained that entry of a second nunc pro tunc order was not necessary and that the Parole Board had "sole authority" to revoke any suspended incarceration. The prosecutor posed the question, "[W]hat is post-release supervision without a suspended term of imprisonment[?]" The judge responded, "Right, . . . [t]hat was the [c]ourt's rationale . . . when I . . . [denied] the motion [to dismiss] earlier." Nevertheless, in an order entered on August 26, 2016, the judge explicitly denied the prosecutor's request to enter a second nunc pro tunc order to reflect that the court, in 2012, had pronounced and suspended a specific period of post-release incarceration.

Ruling on the merits of the show cause in the same order (the revocation order), the court found that the appellant was "in violation of the terms and conditions of his post-release supervision/incarceration," despite the absence of a sentencing order pronouncing a period of post-release incarceration. The court revoked three years of post-release incarceration but re-suspended the three years "for time served" upon various conditions, including the payment of court costs.

II. ANALYSIS

The appellant challenges the circuit court order purporting to revoke and re-suspend three years of post-release incarceration. He contends that only the Parole Board may terminate post-release supervision ordered pursuant to Code § 19.2-295.2 and recommit a defendant to incarceration. The Commonwealth responds in part that the trial court retained concurrent authority to enforce the period of post-release supervision and re-incarcerate the appellant. We hold that the record fails to establish that a period of post-release incarceration was pronounced and, for this reason, that no suspended time was available for revocation and re-suspension.Consequently, we hold that the challenged order is void, and we vacate the order without reaching the appellant's assignment of error.

A. Standard of Review

In an appeal involving jurisdiction and statutory construction, the appellate court reviews the issue under a de novo standard. See, e.g., Alston v. Commonwealth, 274 Va. 759, 764, 652 S.E.2d 456, 459 (2007); Holland v. Commonwealth, 62 Va. App. 445, 451, 749 S.E.2d 206, 209 (2013). In construing statutes, "the constant endeavor of the courts is to ascertain and give effect to the intention of the legislature, [which] must be gathered from the words used." Alston, 274 Va. at 774, 652 S.E.2d at 464 (quoting Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003)). If "the language of a statute is plain and unambiguous," the appellate court is "bound by the plain meaning of that statutory language." Id. at 769, 652 S.E.2d at 462 (quoting Lee Cty. v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002)). Further, when construing multiple statutes, the court must "view the entire body of legislation and the statutory scheme 'to determine the true intention of each part.'" Lamb v. Commonwealth, 40 Va. App. 52, 56, 577 S.E.2d 530, 532 (2003) (quoting McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 (1957)). "It is a cardinal rule . . . that statutes dealing with a specific subject must be construed together in order to arrive at the object sought to be accomplished." Alston, 274 Va. at 769, 652 S.E.2d at 462 (quoting Prillaman v. Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 7 (1957)). Such statutes must be construed in a way that "make[s] the scheme consistent in all its parts and uniform in its operation, unless a different purpose is shown plainly or with irresistible clearness." Id. (quoting Prillaman, 199 Va. at 405, 100 S.E.2d at 7).

B. Statutory Framework

Code § 19.2-295.2, the statute at the center of this appeal, expressly operates in conjunction with Code § 18.2-10. Code § 18.2-10 provides in pertinent part as follows:

For any felony offense committed . . . on or after July 1, 2000, [a court sentencing a defendant for a felony] shall, except in cases in which the court orders a suspended term of confinement of at least six months, impose an additional term of not less than six months nor more than three years, which shall be suspended conditioned upon successful completion of a period of post-release supervision pursuant to §

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