                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges O’Brien, AtLee and Athey
            Argued at Lexington, Virginia
PUBLISHED




            ROBERT ANTHONY TYLER MARTINEZ
                                                                                 OPINION BY
            v.      Record No. 1199-18-3                                  JUDGE MARY GRACE O’BRIEN
                                                                                DECEMBER 10, 2019
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
                                            Victor V. Ludwig, Judge

                            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.


                    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




                                                -2-
§§ 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


        1
         Code § 16.1-285.1(F) provides that DJJ “shall petition the committing court for a
determination as to the continued commitment of each juvenile sentenced under this section at least
sixty days prior to the second anniversary of the juvenile’s date of commitment and sixty days prior
to each annual anniversary thereafter.”
        2
         Code § 16.1-285.2(A) states, “Upon receipt of a petition of [DJJ] for a hearing concerning
a juvenile committed under [Code] § 16.1-285.1, the court shall schedule a hearing within thirty
days.” Additionally, DJJ’s petition “shall be accompanied by a progress report.” Code
§ 16.1-285.2(B).
                                                 -3-
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
                                                   -4-
               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 (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 (2003). Although the July 26, 2018 “Order of Clarification and to Correct a Ministerial


       3
          Code § 53.1-202.2(B) allows juveniles convicted as adults to be “eligible to earn sentence
credits” for time served in DJJ if they adhere “to the facility’s rules” and make “progress toward
treatment goals and objectives.” Here, the court expressly found that appellant “did not comply
with the rules of [DJJ]” and “did not make satisfactory progress toward treatment goals” and
therefore did “not qualify for credit for time served there.”
                                                   -5-
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 (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 (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 (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, independent of statutory authority, to correct errors

in the record so as to cause its acts and proceedings to be set forth correctly.’” Myers v.

Commonwealth, 26 Va. App. 544, 547 (1998) (quoting Davis v. Mullins, 251 Va. 141, 149 (1996)).

Additionally, Code § 8.01-428 creates an exception to Rule 1:1:

                Clerical mistakes in all judgments or other parts of the record and
                errors therein arising from oversight or from an inadvertent omission
                may be corrected by the court at any time on its own initiative or
                upon the motion of any party and after such notice, as the court may
                order.

                                                   -6-
Code § 8.01-428(B) (emphasis added). “Because Code § 8.01-428(B) expressly allows a court to

correct qualifying mistakes ‘at any time,’ it confers jurisdiction on courts beyond the 21-day period

for that limited purpose.” Belew v. Commonwealth, 284 Va. 173, 178 (2012).

        At the January 24, 2018 review hearing, the court found that appellant would “not further

benefit from continued commitment to [DJJ].” Appellant’s counsel did not object to the finding, but

asked the court to impose only one year of active time to serve in DOC. The Commonwealth

requested twenty-four months to serve. The court revoked appellant’s twenty-year suspended

sentence, ordered his immediate transfer to DOC, and re-suspended all but five years of the

sentence. The February 6, 2018 order memorialized this ruling and concluded that “[a]s a result of

this [o]rder, [appellant] shall serve five (5) years.”

        The record indicates that DOC interpreted the February 6, 2018 order to mean that appellant

would serve the balance of a five-year sentence, after he received credit for the time served in DJJ

dating back to August 2013. The court concluded that DOC attempted to give appellant credit for

time served, pursuant to Code § 53.1-202.2(B), based on his “adherence to the facility’s rules and

the juvenile’s progress toward treatment goals and objectives.” Code § 53.1-202.2(B).

        At the July 26, 2018 hearing, the court explained that DOC had “misconstrued” the

February 6, 2018 order and entered an “Order of Clarification and to Correct a Ministerial Error.” It

reiterated the ruling that appellant was sentenced to serve “five years of active time with [DOC]”

and the balance of the twenty-year sentence was suspended. The July 26, 2018 order also clarified

that appellant did not qualify under Code § 53.1-202(B) to receive credit for time served in DJJ.

        Appellant contends that the July 26, 2018 order was invalid not because it did not accurately

reflect the events of the January 24, 2018 hearing, but because it substantially increased his active

DOC sentence, compared to DOC’s interpretation of the February 6, 2018 order. He argues that a

court’s nunc pro tunc authority only permits correction of minor errors.

                                                    -7-
        The Supreme Court has long held that a nunc pro tunc order is appropriate if it “make[s] the

record show what actually took place.” Council, 198 Va. at 293 (quoting 21 C.J.S., Courts § 227(d)

at 422, 423) (affirming entry of a nunc pro tunc order of conviction to correct the omission of a

twelfth juror’s name). This principle applies even if the correction significantly impacts a

defendant’s freedom. See Jefferson v. Commonwealth, 269 Va. 136, 140 (2005) (affirming court’s

entry of a nunc pro tunc sentencing order and making it the basis of a revocation order, because

there was “no issue that the [nunc pro tunc order] speaks the truth about what transpired at the

sentencing hearing”).

        However, as appellant concedes, the “Order of Clarification and to Correct a Ministerial

Error” accurately reflects the court’s disposition from the January 24, 2018 review hearing. The

order does not modify or change the court’s ruling, but rather “speaks the truth about what

transpired.” Jefferson, 269 Va. at 140. Because the evidentiary basis for correcting the record was

clear and convincing, the court did not abuse its discretion in entering the July 26, 2018 order of

clarification.

                                    C. The February 6, 2018 order

        In his second assignment of error, appellant asserts that the February 6, 2018 order was void

ab initio because it impermissibly increased his original sentence and transferred him to DOC prior

to his twenty-first birthday. He bases this contention on the fact that the order erroneously identified

Code § 16.1-285.2(E)(i), applicable to review hearings for defendants convicted of violent juvenile

felonies, as governing his transfer from DJJ to DOC. For the following reasons, we find that the

order was a valid exercise of the court’s authority.




                                                  -8-
        Appellant was convicted of aggravated sexual battery under Code § 18.2-67.3, which is not

a “violent juvenile felony” under Virginia law.4 Accordingly, the court initially sentenced appellant

in January 2015 pursuant to Code § 16.1-272(A)(2), the provision governing non-violent juvenile

felonies. Cf. Code § 16.1-272(A)(1) (addressing sentencing for violent juvenile felonies). In

addition to other sentencing options, Code § 16.1-272(A)(2) authorizes a court to “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,” including

commitment to DJJ pursuant to Code § 16.1-285.1. Code § 16.1-272(A)(2). The court chose this

option when sentencing appellant in January 2015: it imposed a sentence of twenty years in DOC

and suspended the sentence “on the condition that he remains in the custody of [DJJ] until his

[twenty-first] birthday.”

        While incarcerated in DJJ, appellant was subject to review hearings pursuant to Code

§§ 16.1-285.1(F) and 16.1-282.2, where the court considered DJJ progress reports. At the second

hearing, on January 24, 2018, the court found that appellant would “not further benefit from

continued commitment to [DJJ]” and ordered that he “begin serving the balance of the previously

imposed sentence in [DOC]” with all but five years of the sentence suspended. However, in the

February 6, 2018 order, the court cited Code § 16.1-285.2(E)(i) as authority for this ruling. This

provision authorizes a court to order that a juvenile certified as an adult “begin serving any adult

sentence in whole or in part that may include any remaining part of the original determinate period

of commitment.” Code § 16.1-285.2(E)(i).



        4
          Code § 16.1-228 defines a “[v]iolent juvenile felony” as “any of the delinquent acts
enumerated in subsection B or C of [Code] § 16.1-269.1 when committed by a juvenile [fourteen]
years of age or older.” Code § 16.1-269.1(B), in turn, refers to the offenses of murder and
aggravated malicious wounding. Code § 16.1-269.1(C) refers to, among other offenses, the sexual
crimes of rape, forcible sodomy, and object sexual penetration. Neither subsection B nor C includes
aggravated sexual battery in the definition of violent juvenile felony.
                                                  -9-
        The court’s citation to Code § 16.1-285.2(E)(i) is incorrect. That provision applies only

“[i]n the case of a juvenile convicted as an adult and committed as a serious offender under

subdivision A 1 of [Code] § 16.1-272.” Code § 16.1-285.2(E). Appellant was not convicted of a

violent juvenile felony; therefore, the court sentenced him under Code § 16.1-272(A)(2), the

subdivision applicable to non-violent juvenile felonies. Appellant contends that by ordering his

immediate transfer to DOC to serve an adult sentence – pursuant to a statute for violent juvenile

felonies – the court’s February 6, 2018 order impermissibly increased his sentence and was

therefore void ab initio.

        However, the court had authority to revoke appellant’s suspended sentence and transfer him

to DOC under Code §§ 19.2-303 and 19.2-306(A). Code § 19.2-303 authorizes a court to “suspend

imposition of sentence or suspend the sentence in whole or part and . . . place the defendant on

probation under such conditions as the court shall determine.” Code § 19.2-306(A) provides,

                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.

Here, the evidence at the January 24, 2018 review hearing established that appellant failed to

progress in DJJ sex offender treatment and committed numerous institutional infractions. Further,

he explicitly requested an immediate transfer to DOC so that he would be eligible for the SVP

program. Based on this evidence, the court found that appellant would no longer benefit from DJJ

commitment. Because remaining in DJJ custody until age twenty-one was a condition of his

suspended DOC sentence, the court did not err in revoking the suspended sentence, transferring him

to DOC, and re-suspending all but five years.

        When a court sentences a juvenile convicted of a non-violent juvenile felony to a suspended

adult term pursuant to Code § 16.1-272(A)(2), the court may condition that suspension on

                                                - 10 -
successful completion of a commitment to DJJ under Code § 16.1-285.1. Jackson v.

Commonwealth, 29 Va. App. 418, 420-24 (1999). In Jackson, we determined that the court’s power

to impose such a condition derives from Code § 19.2-303, which “places wide discretion in the trial

court to determine what conditions are to be imposed in each particular case.” Id. at 423 (quoting

Nuckoles v. Commonwealth, 12 Va. App. 1083, 1085 (1991)). The “only limitation” on this

discretion is that the conditions be “reasonable.” Id. (quoting Nuckoles, 12 Va. App. at 1086).

       Like appellant, Jackson was convicted of non-violent juvenile felonies and sentenced

pursuant to Code § 16.1-272(A)(2). Id. at 421-22. The court ordered him to serve an adult sentence

in DOC and suspended the sentence conditioned on his commitment to DJJ until age twenty-one,

completion of a DJJ program, and good behavior for ten years upon his release. Id. at 420. Jackson

argued that under Code § 16.1-272(A)(2), the court lacked authority to order a “combination of

sentences which impose a juvenile commitment and an adult prison sentence,” but had to choose

one alternative. Id. at 422. We held that the court’s “imposition of a juvenile sentencing option

[under Code § 16.1-285.1] as a condition of suspending the execution of Jackson’s prison sentence

was [not] unreasonable.” Id. at 424. These terms and conditions reflected a court’s “wide

discretion” to “fashion[] rehabilitative programs for defendants” under Code § 19.2-303. Id. at 423

(quoting Nuckoles, 12 Va. App. at 1085). We concluded that a DJJ term imposed as a condition of

suspension for a prison term “serves a punitive function, demonstrating to offenders the seriousness

of their conduct” and “also serves as a deterrent by giving offenders a taste of what lies ahead if they

do not reform their conduct.” Id. at 424 (quoting Nuckoles, 12 Va. App. at 1086).

       The same analysis applies here. Pursuant to Code § 16.1-272(A)(2), the court imposed the

condition that appellant remain in DJJ until age twenty-one as a requirement for suspension of the

DOC sentence. See also Code § 19.2-303. This condition was reasonable given appellant’s age, the

nature of his crime, and the opportunity for sex offender treatment in DJJ. See Jackson, 29

                                                 - 11 -
Va. App. at 423. When appellant did not comply with this condition, the court had the authority to

revoke the suspended sentence and order his immediate transfer to DOC under Code § 19.2-306(A).

See id. at 422-24.

        The order is not rendered void, as appellant asserts, because the court cited the incorrect

statute. “[I]t is the settled rule that how[ever] erroneous . . . may be the reasons of the court for its

judgment upon the face of the judgment itself, if the judgment be right, it will not be disturbed on

account of the reasons.” Perry v. Commonwealth, 280 Va. 572, 579 (2010) (quoting Schultz v.

Schultz, 51 Va. 358, 384 (1853)). “When the trial court has reached the correct result for the wrong

reason, but the record supports the right reason, ‘[appellate courts] will assign the correct reason and

affirm that result.’” Id. at 580 (quoting Mitchem v. Counts, 259 Va. 179, 191 (2000), abrogated on

other grounds by Robinson v. Salvation Army, 292 Va. 666 (2016)). The “right result for the wrong

reason doctrine” is proper “when the evidence in the record supports the new argument on appeal,

and the development of additional facts is not necessary.” Id. at 579. See also Collins v.

Commonwealth, 297 Va. 207, 212 n.1 (2019) (“Under the right-result-different-reason doctrine, an

appellee may assert for the first time on appeal a purely legal ground for upholding the challenged

judgment.”).

        Therefore, although the court erroneously cited Code § 16.1-285.2(E)(i) as authority for

revoking appellant’s previously suspended sentence of incarceration in DOC, its actions were a

proper exercise of both its discretion to impose conditions under Code §§ 16.1-272(A)(2) and

19.2-303 and to revoke a suspended sentence under Code § 19.2-306(A).

                                             CONCLUSION

        For the foregoing reasons, the court did not err in revoking appellant’s suspended sentence

and transferring him to DOC custody in the February 6, 2018 order. Additionally, the court did not

err in entering the July 26, 2018 order clarifying the revocation and transfer order. Therefore, we

                                                  - 12 -
affirm the court’s decisions but remand for the limited purpose of striking the erroneous reference to

Code § 16.1-285.2(E)(i) from the February 6, 2018 order. See Code § 8.01-428(B); Howell v.

Commonwealth, 274 Va. 737, 739 & n.*, 742 (2007); Tatum v. Commonwealth, 17 Va. App. 585,

592-93 (1994).

                                                                             Affirmed and remanded.




                                                - 13 -
