Hill v. Commonwealth, Record No. 210569

876 S.E.2d 173

Richard Roosevelt HILL

v.COMMONWEALTH of Virginia

Record No. 210569

Supreme Court of Virginia.

AUGUST 11, 2022

Shalev Ben-Avraham, Senior Assistant Public Defender, on briefs, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia, on brief), for appellee.

PRESENT: Goodwyn, C.J., Powell, Kelsey, McCullough, and Chafin, JJ., and Koontz and Millette, S.JJ.

OPINION BY JUSTICE D. ARTHUR KELSEY

The circuit court found Richard Roosevelt Hill in violation of probation and sentenced him to serve the balance of his previously suspended sentence. On appeal, Hill argues that the court had no jurisdiction to do so because the period of suspension had lapsed before his probation violation. The circuit court and the Court of Appeals disagreed, as do we.

I.

On March 9, 2015, Hill pleaded guilty to one count of attempted unlawful wounding. Under the plea agreement, his sentence would be three years of incarceration with all but six months suspended "for a period of three years from the date of [his] release from incarceration" with "supervised probation during the time when [his] sentence [would be] suspended." J.A. at 4. At the March 9 sentencing hearing, the circuit court accepted the guilty plea and sentenced Hill according to the plea agreement. The court gave Hill credit for time served, and on March 10, 2015, he was transferred directly to federal custody for an unrelated offense.

The court entered a written order on March 17, 2015, setting forth its rulings at the March 9 sentencing hearing. Hill remained in federal incarceration until December 4, 2016.

On March 16, 2018, the court held a revocation hearing pursuant to Code § 19.2-306 "at which [Hill] was required to show cause why suspension of the execution of sentence should not be revoked" for a probation violation. J.A. at 27. The court found that Hill had violated the terms of his probation, and on April 18, 2018, the court entered an order stating that "the balance of the time at the time of this hearing is hereby imposed and ALL BUT ONE (1) YEAR suspended." Id. The order went on to state that "[u]pon release from incarceration, the [d]efendant shall be restored to probation" and that "[s]upervised probation is extended for TWO (2) YEARS from the date of the [d]efendant's release from confinement, on the same terms and conditions as contained in this [c]ourt's order dated [for hearing purposes] March 9, 2015." Id.

On February 1, 2019, Hill failed to appear for a second probation-violation hearing. The court entered a bench warrant, and Hill was arrested. Hill filed a motion to dismiss the bench warrant because, he argued, the court lacked jurisdiction to revoke any of his suspended time given that the period for which it was suspended had expired. The court denied Hill's motion to dismiss. At a hearing on February 7, 2020, the court found that Hill had again violated the terms of his probation and, in an order dated March 11, 2020, imposed the remainder of Hill's suspended sentence.

The court, which had also presided over Hill's original sentencing, interpreted its April 18, 2018 order as suspending Hill's sentence "for the period of his extended probation, for the [c]ourt would not embark on a path of futility where [d]efendant might violate terms of probation during the extended time of probation with no consequence to said violation." Id. at 122. The court also held that it was a clerical error not to extend Hill's suspended sentence for the same period as the extended probation and entered a nunc pro tunc order under Code § 8.01-428(B) to correct it. Hill appealed that decision to the Court of Appeals, which upheld the circuit court's judgment. See Hill v. Commonwealth , 73 Va. App. 206, 220, 857 S.E.2d 591 (2021).

II.

In this appeal, Hill argues that his period of suspension had expired before the circuit court revoked it in February 2020. The three-year period of suspension, he contends, began on March 17, 2015, and ended on March 17, 2018. Hill acknowledges that the period of probation was extended on April 18, 2018 (imposing a new 2-year period of supervised probation upon release from incarceration),¹ but asserts that the order did not expressly or impliedly extend the period of suspension. We have not directly ruled on the implicit effect, if any, of a probation extension on an underlying suspended sentence. The Court of Appeals has addressed similar arguments with disparate reasoning.²

In our view, the better reasoned opinions from the Court of Appeals support the conclusion that a revocation order that extends a period of probation necessarily extends the period of sentence suspension. Because one without the other would be "vain and useless," 2 John Bouvier, A Law Dictionary 144 (6th ed. 1856) (citing Edward Coke, First Part of the Institutes of the Laws of England: or, a Commentary upon Littleton § 578, at 319 (11th ed. 1719)) — something our common-law tradition abhors — we believe that an express extension of a period of probation implicitly creates a corresponding period of sentence suspension.

We reach this conclusion based upon the reasoning of Leitao v. Commonwealth , which held that a revocation order placing a defendant back on probation necessarily had the effect of resuspending the sentence for the newly imposed period of probation. 39 Va. App. 435, 438, 573 S.E.2d 317 (2002). Writing for a unanimous panel, Judge Bumgardner stated: "The absence of an explicit recitation re-suspending the balance of the original sentence did not implicitly discharge the remaining sentence; it implicitly re-suspended the balance that the defendant had not served." Id. Probation would be "meaningless," the court reasoned, "if no sentence remained for the court to impose if the defendant violated the terms imposed." Id.

Leitao ’s reasoning is consistent with Code § 19.2-306(A), which states that in any case "in which the court has suspended the execution or imposition of sentence, the court may revoke the suspension of sentence for any cause the court deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court."³ The disjunctive "or" is the crucial word. As the Court of Appeals pointed out in Hill's case, the power of revocation can be exercised to address misconduct that "occurred within either the period of probation or the period of suspension." Hill , 73 Va. App. at 216, 857 S.E.2d 591. The statute does not limit the power of revocation to misconduct occurring only during an expressly specified period of suspension. To the contrary, the statute presupposes that an implied suspension always accompanies an expressly declared period of probation.

To be sure, the opposite conclusion would be both insensible from a practical point of view and discordant with our view that statutes authorizing a "trial court to impose alternatives to incarceration, such as probation or conditionally suspended sentences, are highly remedial and should be liberally construed to provide trial courts valuable tools for rehabilitation of criminals." Cilwa v. Commonwealth , 298 Va. 259, 269, 836 S.E.2d 378 (2019) (citation omitted). Because of these reasons, "the power of the courts to revoke suspensions and probation for breach of conditions must not be restricted beyond the statutory limitations." Grant v. Commonwealth , 223 Va. 680, 684, 292 S.E.2d 348 (1982). The Court of Appeals in Hill's case, therefore, correctly relied upon Leitao in finding that the period of suspension was implicit in the period of probation. See Hill , 73 Va. App. at 218-19, 857 S.E.2d 591.

Even so, Hill argues, Leitao disregards the maxim that a court speaks through its orders, and the circuit court's revocation order in this case did not say that a suspension period would parallel the probationary period.

We see this criticism as overly simplistic. In judicial orders, as in ordinary conversation, meaning can be clearly expressed and just as clearly implied. An order suspending a sentence, for example, implicitly conditions the suspension on the defendant's future good behavior, "whether expressly so stated or not." Burnham v. Commonwealth , 298 Va. 109, 115, 833 S.E.2d 872 (2019) (quoting Marshall v. Commonwealth , 202 Va. 217, 220, 116 S.E.2d 270 (1960) ). Our case law includes many examples of this common-sense manner of interpreting orders entered by our colleagues on the circuit court.⁴ The interpretative sequence is straightforward. Whether an idea is necessarily implied by a word or phrase expressly stated in an order is answered by asking another question: Would the expressly stated idea have no meaning without the implied idea? In the context of the present case, the answer would be yes. Probation without the possibility of consequences for a violation would be a pointless and misleading exercise of judicial power.

Finally, Hill contends that the Leitao principle authorizes circuit courts to issue revocation orders that "negate" and "erase" the final sentencing order in criminal cases. See Appellant's Br. at 20. We believe this fear overstates the reach of Leitao . A revocation order cannot, for example, lengthen or shorten the original sentence. Leitao , 39 Va. App. at 438, 573 S.E.2d 317 ; see also Robertson v. Superintendent of Wise Corr. Unit , 248 Va. 232, 236, 445 S.E.2d 116 (1994) ; Jacobs v. Commonwealth , 61 Va. App. 529, 538-40, 738 S.E.2d 519 (2013) ; cf. Dunham v. Commonwealth , 59 Va. App. 634, 639 n.2, 721 S.E.2d 824, aff'd , 284 Va. 511, 733 S.E.2d 660 (2012). Rule 1:1 forbids such alterations of an order after 21 days from final judgment except in cases governed by Code § 19.2-303. See Akers v. Commonwealth , 298 Va. 448, 452, 839 S.E.2d 902 (2020). "[T]he issue at a revocation proceeding," however, "is not what sentence to impose upon the defendant for his prior criminal conviction," Alsberry v. Commonwealth , 39 Va. App. 314, 318, 572 S.E.2d...