Martinez v. Commonwealth

71 Va.App. 318

836 S.E.2d 1

Robert Anthony Tyler MARTINEZ

v.COMMONWEALTH of Virginia

Record No. 1199-18-3

Court of Appeals of Virginia, Lexington.

DECEMBER 10, 2019

Tyler M. Jerrell, Assistant Public Defender (Duane K. Barron, Deputy Public Defender; Office of the Public Defender, on brief), for appellant.

John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges O’Brien, AtLee and Athey

OPINION BY JUDGE MARY GRACE O’BRIEN

Robert Anthony Tyler Martinez ("appellant") was convicted of aggravated sexual battery of a child under the age of thirteen, in violation of Code § 18.2-67.3. At the time of his conviction, appellant was a juvenile certified as an adult pursuant to Code § 16.1-269.1(C). He appeals a July 26, 2018 order of the Augusta County Circuit Court clarifying a February 6, 2018 order. Appellant argues the court violated Rule 1:1 by entering the July 26, 2018 order more than twenty-one days after the February 6, 2018 order. He also contends the February 6, 2018 order was void ab initio because it impermissibly increased his original sentence and transferred him to the Department of Corrections prior to his twenty-first birthday.

BACKGROUND

Appellant, born October 21, 1997, committed aggravated sexual battery on July 23, 2013. He was detained at a juvenile detention center beginning on August 12, 2013. Certified as an adult, appellant pled guilty in circuit court and was sentenced on January 15, 2015.

The court determined that the sentencing proceeding was governed by Code § 16.1-272(A)(2) which provides,

If the juvenile is convicted of any ... felony [not defined by Code § 16.1-269.1 as a "violent juvenile felony"], the court may ... in its discretion impose an adult sentence and suspend the sentence conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case.

The court imposed the following sentence:

Twenty (20) years in incarceration, with the time until he is [twenty-one] years of age to be served with the Department of Juvenile Justice and the balance of the time to be served in the Department of Corrections. The total sentence imposed is twenty (20) years.

The [c]ourt suspends the time to be served with the Department of Corrections on the condition that he remains in the custody of the Department of Juvenile Justice until his [twenty-first] birthday. The suspended time is suspended for a period of twenty (20) years after his release from incarceration, on the condition that he be on supervised probation for a period of twenty (20) years after his release from incarceration.

....

CREDIT FOR TIME SERVED: [Appellant] shall be given credit for time spent in confinement while awaiting trial pursuant to Code [§] 53.1-187.

Appellant began serving his sentence in the custody of the Department of Juvenile Justice ("DJJ"). On January 5, 2017, the court conducted a review hearing pursuant to Code §§ 16.1-285.1(F)¹ and 16.1-285.2.² At the hearing, the court considered a DJJ progress report indicating that appellant initially responded well to treatment, but his "behavior began to decline" in September 2015. During the next fourteen months, appellant amassed several institutional violations, did not cooperate with sex offender therapy, and failed to address violence and aggression issues. The court recommitted appellant to DJJ on the same terms as in the original sentencing order and warned him that if he did not cooperate with the programs offered, he would "start looking at serious time in an adult facility."

At the second review hearing on January 24, 2018, the Commonwealth presented an updated DJJ progress report showing that since the last hearing, appellant had committed twenty-five institutional infractions, two of which involved sexual misconduct. Appellant told his treatment team that he did not want to finish his sex offender treatment in the juvenile facility but wanted to complete the treatment while confined in the Department of Corrections ("DOC"). The DJJ report also indicated that appellant was at a "high risk to reoffend sexually." The evaluators concluded it was "unlikely [that appellant] will make significant gains in treatment prior to his [twenty-first] birthday and statutory release from DJJ."

Appellant requested that any revocation of his previously suspended sentence occur immediately and that he serve one year in DOC, where he might qualify for the Sexually Violent Predator ("SVP") program at the Virginia Center for Behavioral Rehabilitation. The Commonwealth agreed that appellant’s suspended sentence should be revoked and he should be transferred to DOC, but asked the court to impose at least twenty-four months of the suspended sentence. The court revoked appellant’s suspended DOC sentence of twenty years’ incarceration, imposed five years of the sentence, and re-suspended the balance. On February 6, 2018, the court entered an order reflecting its ruling, which stated:

The [c]ourt finds that [appellant] will not further benefit from continued commitment to [DJJ], and, pursuant to [Code] § 16.1-285.2(E)(i), the [c]ourt orders that [appellant] begin serving the balance of the previously imposed sentence in [DOC], with all of that time suspended except for five (5) years for a period of twenty (20) years after his release from incarceration.

....

As a result of this [o]rder, [appellant] shall serve five (5) years.

DOC officials interpreted the court’s order as merely transferring appellant to DOC custody to finish the balance of a five-year sentence, calculated from the beginning of appellant’s incarceration at DJJ in August 2013, meaning his release was imminent. At a July 26, 2018 hearing, the court explained,

[W]e are here because [DOC] misconstrued an order that the [c]ourt entered on ... February 6, 2018[.] ... I believe the order that I’m about to enter accurately reflects what really happen[ed.] ... [W]e are here today to enter another order accurately reflecting what the [c]ourt held on January [ ] 24, 2018[,] so that we can clarify this.

Appellant objected, based on the prohibition in Rule 1:1(a) against modification of a final order after twenty-one days. The court overruled the objection and noted that "the [c]ourt always retains the authority to correct a ministerial error."

The court then entered an "Order of Clarification and to Correct a Ministerial Error" providing, in relevant part, as follows:

It has come to the attention of the [c]ourt that [DOC] has (not unreasonably) interpreted the [February 6, 2018 order] to mean that the [c]ourt ordered only that [appellant] be transferred to [DOC] to serve the balance of the active time initially imposed (five years), with the result that his release is imminent. This is a misinterpretation of the order because of a lack of clarity on the part of the [c]ourt.

....

The [February 6, 2018 order] does not provide that [appellant] be given credit for time served pursuant to [ Code § 53.1-202.2(B)³ ]; the [c]ourt ordered [appellant’s] transfer to [DOC] because he had not adhered to the facility’s rules and because he had not made sufficient progress toward treatment goals.

The intention of the [c]ourt, as the record shows, ... is that the [c]ourt revoked all of the suspended time, ordered that [appellant] be transferred to [DOC], and re-suspended all but five years of the sentence.

....

The result of this order is that [appellant] is to serve five years of active time with [DOC], with the balance of the sentence re-suspended for a period of [twenty] years after his release from incarceration, on the condition that he be on supervised probation for a period of [twenty] years after his release from incarceration.

This appeal followed.

ANALYSIS

A. Standard of Review

Appellant’s first assignment of error addresses a court’s authority to enter a corrective order after losing jurisdiction over the case under Rule 1:1. The applicability of Rule 1:1 presents a question of law we review de novo . Commonwealth v. Morris, 281 Va. 70, 76-77, 705 S.E.2d 503 (2011). Additionally, "[w]e apply an abuse of discretion standard to evaluate whether the trial court entered a valid nunc pro tunc order" to correct an error in the record. Ziats v. Commonwealth, 42 Va. App. 133, 140, 590 S.E.2d 117 (2003). Although the July 26, 2018 "Order of Clarification and to Correct a Ministerial Error" does not use the phrase nunc pro tunc , it is subject to the same standard of review as a nunc pro tunc order. See Minor v. Commonwealth, 66 Va. App. 728, 741, 742, 791 S.E.2d 757 (2016) (finding no violation of Rule 1:1 even though an amended order correcting a clerical mistake did "not contain the phrase ‘nunc pro tunc ’ "). "Subject to the general rule that the correction of records by entry nunc pro tunc is for the discretion of the court, ... the evidence constituting the basis for the correction of the record [must] be clear and convincing." Council v. Commonwealth, 198 Va. 288, 293, 94 S.E.2d 245 (1956) (quoting 21 C.J.S., Courts § 227(d), 426, 427 (1940)).

Appellant’s second assignment of error raises issues of the circuit court’s jurisdiction and statutory interpretation. We review those judgments de novo . Holland v. Commonwealth, 62 Va. App. 445, 451, 749 S.E.2d 206 (2013).

B. The July 26, 2018 Order

Appellant asserts that based on Rule 1:1, the court did not have jurisdiction to enter the July 26, 2018 order. Rule 1:1(a) provides that "[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." On its face, Rule 1:1 terminates a court’s jurisdiction twenty-one days after entry of a final order. However, a court may correct mistakes in the record after twenty-one days have elapsed. "Although divested of jurisdiction, a ‘trial court has the inherent power,...