Silvious v. Commonwealth

OWEN FRANKLIN SILVIOUS v. COMMONWEALTH OF VIRGINIA

Record No. 1518-16-3

COURT OF APPEALS OF VIRGINIA

OCTOBER 3, 2017

UNPUBLISHED

Present: Judges Humphreys, Decker and Russell

Argued at Winchester, Virginia

MEMORANDUM OPINION^* BY JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY

Thomas J. Wilson, IV, Judge

Owen F. Silvious, pro se.

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

Owen Franklin Silvious appeals a circuit court order extending his term of supervised probation. His single assignment of error challenges whether the circuit court had subject matter jurisdiction when it took that action. We hold that when the circuit court acted, it retained subject matter jurisdiction. Consequently, we affirm the circuit court's ruling.

I. BACKGROUND

In 2002, the appellant was sentenced for three counts of obtaining money by false pretenses. The circuit court sentenced him to a combined twenty years and twelve months of incarceration. The court ordered an active sentence of one year and one month, with nineteen years and eleven months suspended. The order conditioned the suspension upon supervised probation that included the requirement that the appellant pay approximately $38,000 in restitution. The order did not provide specific terms regarding a payment plan.

Ten years later, in 2012, the circuit court found the appellant in violation of the terms and conditions of his supervised probation.¹ The court revoked one year of the significant previously suspended sentence and extended the appellant's supervised probation for three years, "upon his release[,] . . . on the same terms and conditions" as in the 2002 order. The court also ordered that the appellant "upon his release shall pay the . . . restitution on a schedule" as set out in the order.

About four years later, by letter filed in the circuit court on July 21, 2016, the appellant's probation officer represented that the appellant had been "released" to his three years of supervised probation on July 15, 2013, and that it was scheduled to expire on July 15, 2016. The probation officer also informed the court that the appellant had adjusted satisfactorily to supervision and made timely payments but that he still owed over $34,000 of restitution. She concluded by asking the court to extend the appellant's supervised probation "indefinitely until his restitution can be paid in full."

The appellant filed a written response contending that his probation had "ended" on July 15, 2016, and questioning whether the court had "jurisdiction" to extend it once it had "expired by lapse of time." He also stated, presumably in alternative fashion, that he had "no objection" to extending his probation until February 2018.

In a hearing on August 15, 2016, the appellant relied on his written objection to extending his probation. The circuit court replied, "I can extend your supervised probation indefinitely until your restitution is paid for. I'm not tied down into this 2018 date . . . ." The appellant responded that he was "okay with that." By order entered on August 16, 2016, the circuit court extended the appellant's supervised probation "indefinitely," on the same terms and conditions as in the 2002 order, "until all restitution is paid in full."

II. ANALYSIS

The appellant's single assignment of error alleges that the circuit court "did not have subject matter jurisdiction" to extend his probation. He argues that this is so because the court did not act until the probationary term had already expired by operation of law. The Commonwealth responds that the appellant remained under a suspended sentence at the time and, consequently, that the court retained subject matter jurisdiction to act. The Commonwealth further argues that the appellant waived the right to object to any errors that did not implicate the circuit court's subject matter jurisdiction.

A. Scope of the Assignment of Error

All litigants, even those proceeding pro se, must comply with the Rules of Court. See Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656 (1987). It is well established that the "right of self-representation is not a license . . . not to comply with the relevant rules of procedural and substantive law." Justus v. Commonwealth, 222 Va. 667, 680, 283 S.E.2d 905, 912 (1981) (quoting Faretta v. California, 422 U.S. 806, 834 n.46 (1975)).

Rule 5A:12(c)(1) provides in relevant part that "the petition [for appeal] shall list, clearly and concisely . . . , the specific errors in the rulings below upon which the party intends to rely." It further directs that "[o]nly assignments of error assigned in the petition for appeal will be noticed by this Court." Rule 5A:12(c)(1)(i). Additionally, Rule 5A:12(c) "contains no 'good cause' or 'ends of justice' exceptions." Thompson v. Commonwealth, 27 Va. App. 620, 626, 500 S.E.2d 823, 826 (1998). Accordingly, under the applicable rule, once an appeal has been granted, this Court is strictly limited to reviewing the specific assignment of error presented by the appellant in the petition. See Whitt v. Commonwealth, 61 Va. App. 637, 646-47, 739 S.E.2d 254, 259 (2013) (en banc); see also Va. Dep't of Transp. v. Fairbrook Bus. Park Assocs., 244 Va. 99, 105, 418 S.E.2d 874, 878 (1992) (declining under the Supreme Court's similar Rule5:17(c)(1) to consider the appellant's argument because it was "not within the scope of the assigned error"), cited with approval in Woodard v. Commonwealth, 287 Va. 276, 280-81, 754 S.E.2d 309, 312 (2014).

Here, the appellant's assignment of error expressly references only "subject matter jurisdiction." As discussed in greater detail below, "there is a significant difference between subject matter jurisdiction and . . . other 'jurisdictional' elements." Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990)). Consequently, we consider only the narrow issue properly before us on appeal—whether the circuit court had subject matter jurisdiction to extend the appellant's probation after the probationary period had expired but while the appellant was still subject to a suspended sentence.²

B. Subject Matter Jurisdiction

In an appeal involving the jurisdiction of the circuit court, the appellate court reviews the issue under a de novo standard. See, e.g., Holland v. Commonwealth, 62 Va. App. 445, 451, 749 S.E.2d 206, 209 (2013). Although a "cardinal principle of law" is that "penal statutes are to be strictly construed" against the Commonwealth, this principle does not apply to the interpretation of statutes that "prescribe[] . . . jurisdiction" in criminal cases. Kirby v. Commonwealth, 63 Va. App. 665, 672 n.6, 762 S.E.2d 414, 417 n.6 (2014). Additionally, probation statutes "provide a remedial tool in the rehabilitation of criminals and, to that end, should be liberally construed." Wilson v. Commonwealth, 67 Va. App. 82, 89, 793 S.E.2d 15, 18 (2016).

Jurisdiction admittedly "is a term [that] can engender much confusion because it encompasses a variety of separate and distinct legal concepts." Porter, 276 Va. at 228, 661 S.E.2d at 426. However, the scope of the term subject matter jurisdiction, which is only one of several types of jurisdiction, is more limited and has been clarified significantly through case law. See Mohamed v. Commonwealth, 56 Va. App. 95, 99, 691 S.E.2d 513, 514 (2010). Subject matter jurisdiction is merely "'potential'" jurisdiction over a class of cases that is granted "by constitution or statute." Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689 S.E.2d 698, 702 (2010) (quoting Bd. of Supers. v. Bd. of Zoning Appeals, 271 Va. 336, 344 n.2, 626 S.E.2d 374, 379 n.2 (2006)). This potential jurisdiction becomes "'active' jurisdiction, the power to adjudicate a particular case upon the merits, only when various [additional] elements [beyond subject matter jurisdiction] are present." Id. at 388-89, 689 S.E.2d at 702-03 (quoting Bd. of Supers., 271 Va. at 343, 626 S.E.2d at 379).

In short, "[s]ubject matter jurisdiction is conferred by statute according to the subject of the case, . . . rather than according to a particular proceeding that may be one part of [the] case." Mohamed, 56 Va. App. at 99-100, 691 S.E.2d at 515 (quoting In re Commonwealth, 278 Va. 1, 11, 677 S.E.2d 236, 240 (2009)). A court's jurisdiction over the subject matter "is determined at the time the litigation is filed and, once established, remains until the termination of the litigation." E.C. v. Va. Dep't of Juv. Justice, 283 Va. 522, 527-28, 722 S.E.2d 827, 829 (2012). "[I]ntervening events may affect the nature of the relief available," but "they do not end or extinguish the [subject matter] jurisdiction of the Court." Id. at 528, 722 S.E.2d at 830.

We considered a similar challenge to a circuit court's subject matter jurisdiction in Mohamed v. Commonwealth, 56 Va. App. 95, 691 S.E.2d 513, which involved the revocation of a suspended sentence. We noted that "the General Assembly has granted [the circuit] court[s] subject matter jurisdiction over the specific class of cases of which [the defendant's] case [was] amember—the prosecution and the rehabilitation of criminals." Id. at 100, 691 S.E.2d at 515 (emphasis added) (observing that Code § 17.1-513 accords to Virginia's circuit courts "original jurisdiction of all indictments for felonies and of presentments, informations, and indictments for misdemeanors" (quoting Porter, 276 Va. at 229, 661 S.E.2d at 427)). We further recognized that proceedings for the revocation of probation and suspension of sentence "are part of the criminal process entrusted to the circuit courts by the General Assembly." Id. (citing Green v. Commonwealth, 263 Va. 191, 194, 557 S.E.2d 230, 232 (2002)); see Code §§ 19.2-304, -306. We emphasized that the circuit court, "'[w]ithout question,' . . . had the requisite 'potential jurisdiction[] to consider' any matter...