                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges McCullough and Decker
UNPUBLISHED


              Argued at Chesapeake, Virginia


              MALCOLM ANDREW McCLEASE
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 2209-13-1                                  JUDGE MARLA GRAFF DECKER
                                                                                OCTOBER 28, 2014
              COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                          Marjorie A. Taylor Arrington, Judge

                               John A. Coggeshall for appellant.

                               Steven A. Witmer, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Malcolm Andrew McClease was convicted, on his plea of guilty, of robbery in violation

              of Code § 18.2-58. He was originally sentenced as a juvenile to a suspended commitment with

              the Department of Juvenile Justice (DJJ). The Commonwealth then filed a motion asking the

              court to vacate the original sentence and enter a second order that included a suspended sentence

              with the Department of Corrections (DOC). It is from this second order that this appeal

              originates. McClease contends that the Commonwealth violated the terms of the plea agreement

              it entered into with him and that the trial court misinterpreted Code § 16.1-272 when it vacated

              the original sentencing order and entered the second order. We hold that the trial court lacked

              jurisdiction to enter the second order because even if the first order contained legal error, that

              original order was not void ab initio and the court did not vacate it until more than twenty-one




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
days following its entry. Thus, Rule 1:1 applies, and the original sentencing order remains in

effect. Further, we dismiss the appeal because it was noted from the invalid second order.

                                        I. BACKGROUND

       The appellant participated in a robbery involving multiple victims when he was sixteen

years old. On the basis of that robbery, he was charged as a juvenile and certified for trial as an

adult. Following his indictment, the appellant agreed to plead guilty to one count of robbery in

exchange for the dismissal of a second count. The agreement also specifically provided that

“[t]he sentence shall remain within the discretion of the sentencing Judge, in accordance with

Virginia Code Section 16.1-272.”

       The parties presented the plea agreement to the trial court. The court accepted the

appellant’s plea, granted the Commonwealth’s motion to dismiss the other robbery charge, and

set the matter for sentencing. At the sentencing hearing on August 26, 2013, the trial court

ordered the appellant committed to the DJJ but suspended the commitment upon various

conditions including twelve months of supervised probation. The court entered the sentencing

order on the same day as the hearing.

       Subsequently, the prosecutor concluded that the sentence imposed did not comply with

Code § 16.1-272, and she moved to vacate it. On September 16, 2013, twenty-one days after the

entry of the sentencing order, the court held a hearing on the motion to vacate. The prosecutor

argued that in the case of a violent juvenile felony, including robbery, Code § 16.1-272(A)(1)

required “at least . . . some adult time” but that the time could be suspended. The appellant

disagreed with the prosecutor’s interpretation of the statute. The trial court characterized the

prosecutor’s argument asking the court to include a portion of adult time in the sentence as a

request “beyond vacating.” The court commented that it amounted, instead, to a request to

increase the appellant’s sentence. After a recess, the trial court ruled from the bench that the

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sentencing order was “not in compliance” with the statute and the court, therefore, had “no

option except to vacate it.” On the same date as the hearing, September 16, 2013, the court

entered a form order that continued the case until October 17, 2013, “for re-sentencing and

argument.” That order made no mention of vacating the sentence.

       At the hearing on October 17, 2013, the court considered the parties’ arguments

regarding whether it had authority to re-sentence the appellant. The Commonwealth argued that

the sentence was “voidable . . . since we came back within 21 days.” The judge opined that

“even if it was beyond the 21 days, it’s something that [this court] would have the authority to

entertain because it would have been a void order.” The court then announced a “pure adult

sentence” of five years, with all five years suspended on the condition of indeterminate

supervised probation.

       On October 18, 2013—the day after the new sentencing hearing and fifty-three days

following entry of the original sentencing order—the trial court entered two additional orders.

The first listed a hearing date of September 16, 2013. It purported to vacate the prior finding of

guilt and continued the matter to October 17, 2013. The second order reflected the events of the

hearing held on October 17, 2013. It included the new sentence of five years in the DOC with

five years suspended for an indeterminate period. It is from the sentencing order of October 18,

2013, that the appellant noted this appeal.

                                          II. ANALYSIS

       The appellant argues that the language of the plea agreement, which expressly reserved to

the trial court the discretion to sentence him in accordance with Code § 16.1-272, acknowledged

that court’s authority to render a wholly juvenile sentence like the one originally imposed. He

further argues that he detrimentally relied on the plea agreement and that the Commonwealth’s

request to vacate the juvenile sentence and impose at least some adult time resulted from

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improper motives. Finally, the appellant contends that the vacating of the original order violated

his due process rights. We hold that the trial court’s “[v]acate” order,1 entered more than

twenty-one days after the original sentencing order, came too late under Rule 1:1. Further, the

trial court lacked jurisdiction to enter the second order because the original order was not void.

Therefore, the first order remains in effect, and the second order is void.

       On appeal, we review a trial court’s assessment of punishment under an

abuse-of-discretion standard. E.g., Williams v. Commonwealth, 270 Va. 580, 584, 621 S.E.2d

98, 100 (2005). However, this standard “‘includes review to determine that the discretion was

not guided by erroneous legal conclusions.’” Porter v. Commonwealth, 276 Va. 203, 260, 661

S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100 (1996)). To the extent

that the application of this standard requires the interpretation of a statute, rule or the common

law, it involves a legal issue that we review de novo on appeal. Commonwealth v. Greer, 63

Va. App. 561, 568, 760 S.E.2d 132, 135 (2014).

                         A. Jurisdiction of the Trial Court under Rule 1:1

       Rule 1:1 provides that “[a]ll final judgments, orders, and decrees . . . 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.” To stop the running of this time period, it is not

enough for the court to enter an order “acknowledging the filing of a post-trial or post-judgment

motion.” Super Fresh Food Mkts. of Va. v. Ruffin, 263 Va. 555, 562, 561 S.E.2d 734, 738

(2002). Instead, the rule requires that the trial court enter an order that “expressly modifies,

vacates, or suspends the judgment.” Id. (emphasis added). Absent such an order, “the


       1
          The order actually states that the court vacated its “finding of guilt” rather than the
original sentence. Because we hold, infra, that the court lacked authority at that time to modify
the August 26, 2013 sentencing order, we need not consider what impact this imprecise language
would have had if the order had been entered in a timely fashion.

                                                 -4-
twenty-one day time period is not interrupted, and the case [is] no longer under the control of the

trial court when the original twenty-one day time period has run.” Id.; see also Weese v.

Commonwealth, 30 Va. App. 484, 492-93, 517 S.E.2d 740, 744-45 (1999) (holding that neither a

trial court’s order purporting to extend its jurisdiction nor an agreement between the

Commonwealth and the defendant, standing alone, extends the twenty-one-day period of Rule

1:1).

        In this case, the trial court entered the original sentencing order on August 26, 2013. On

September 16, 2013, the twenty-first day after entry of that order, the court held a hearing on the

Commonwealth’s motion to vacate. At the conclusion of the hearing, the judge announced that

the court had no option except to vacate the original sentencing order. However, despite that

ruling, the court did not enter an order vacating the sentencing order on that date. Instead, it

entered an order that merely continued the case “for re-sentencing and argument.” The law in

the Commonwealth makes clear that courts speak only through their written orders. E.g.,

Holland v. Commonwealth, 62 Va. App. 445, 452 n.3, 749 S.E.2d 206, 209 n.3 (2013). The

court’s September 16, 2013 order simply did not expressly modify, vacate, or suspend the

judgment. See Super Fresh Food Mkts., 263 Va. at 562, 561 S.E.2d at 738. Consequently, it

was not sufficient to prevent the running of the twenty-one-day time period of Rule 1:1.

        The record plainly establishes that the trial court did not enter an order purporting to

vacate its original sentencing order until more than a month later, on October 18, 2013. That

order, entered well after the twenty-one-day time period had passed, came too late to satisfy the

requirements of Rule 1:1. Thus, the trial court was without jurisdiction to vacate the original

sentencing order and impose a different sentence unless an exception to Rule 1:1 applied to the

facts of this case.




                                                -5-
                         B. Potential Exceptions to Rule 1:1 in this Case

       A statutory exception to Rule 1:1 is found in Code § 19.2-303. That exception provides

that “[i]f a person has been sentenced for a felony to the [DOC] but has not actually been

transferred to a receiving unit of the [DOC],” the court that heard the case, upon certain

conditions, “may, at any time before the person is transferred to the [DOC], suspend or otherwise

modify the unserved portion of such a sentence.” Code § 19.2-303. Here, because the appellant

was not originally sentenced to the DOC, Code § 19.2-303 does not apply. See, e.g., Thomas v.

Commonwealth, 59 Va. App. 496, 500, 720 S.E.2d 157, 159-60 (2012) (providing that statutes

should be given their plain meaning); see also Patterson v. Commonwealth, 39 Va. App. 610,

617-20, 575 S.E.2d 583, 586-88 (2003) (holding that Code § 19.2-303 does not apply when a

defendant receives a fully suspended DOC sentence because it would be illogical to give a court

the authority “to ‘suspend’ a portion of a sentence that has already been suspended”).

       A common-law exception to the twenty-one-day time limit of Rule 1:1 is that the rule

does not apply to a judgment that is void ab initio. See, e.g., Singh v. Mooney, 261 Va. 48,

51-52 & n.2, 541 S.E.2d 549, 551 & n.2 (2001); Dep’t of Corrs. v. Crowley, 227 Va. 254, 260,

316 S.E.2d 439, 442 (1984). A judgment is void ab initio if, among other things, it was:

               “entered by a court in the absence of jurisdiction of the subject
               matter or over the parties, if the character of the order is such that
               the court had no power to render it, or if the mode of procedure
               used by the court was one that the court could not lawfully adopt.”

Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 222 (2013) (internal quotation marks omitted)

(quoting Singh, 261 Va. at 51-52, 541 S.E.2d at 551). By contrast, a judgment that contains

mere legal error is voidable only, and it may be challenged only in a timely direct appeal. See

Singh, 261 Va. at 51-52, 541 S.E.2d at 551.

       The Supreme Court of Virginia elaborated on the application of principles related to

voidness in the sentencing context in Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544
                                                -6-
(2009). Rawls involved a sentence that exceeded the range of punishment authorized by the

legislature. Id. at 215-16, 683 S.E.2d at 546. The Court pointed out that prior to Rawls, the

accepted principle had been “that ‘[a] sentence in excess of that prescribed by law [was] not void

ab initio because of the excess, but [was] good in so far as the power of the court extend[ed], and

[was] invalid only as to the excess.’” Id. at 218, 683 S.E.2d at 547 (quoting Royster v. Smith,

195 Va. 228, 236, 77 S.E.2d 855, 859 (1953)). The Court then announced a different rule in

Rawls, holding that “a sentence imposed in violation of a prescribed statutory range of

punishment is void ab initio because ‘the character of the judgment was not such as the [trial]

[c]ourt had the power to render.’” Id. at 221, 683 S.E.2d at 549 (quoting Anthony v. Kasey, 83

Va. 338, 340, 5 S.E. 176, 177 (1887)). The Court held that this error in Rawls rendered the

entire sentence void ab initio, rather than merely voidable or void only as to the five-year excess.

Id. at 221-22, 683 S.E.2d at 549. Finally, the Court in Rawls announced a common law rule

entitling a defendant in such a situation to a new sentencing hearing in order to “eliminate the

need for courts to resort to speculation” when determining how the defendant would have been

sentenced under a proper understanding of the applicable law. Id.

       In Greer, 63 Va. App. 561, 760 S.E.2d 132, this Court interpreted the principles in Rawls

as applying to a sentence lower than the prescribed statutory range. Id. at 564, 760 S.E.2d at

133. Although both Rawls and Greer involved sentencing by a jury, this Court noted in Greer

that the Supreme Court’s language in Rawls applied broadly to “‘all criminal defendants whose

punishments have been fixed in violation of the statutorily prescribed ranges.’” Greer, 63

Va. App. at 576, 760 S.E.2d at 139 (quoting Rawls, 278 Va. at 221, 683 S.E.2d at 549).

       In the instant case, the issue is not the sentencing range as in Rawls and Greer. Nor does

this case involve a condition or other provision that was, manifestly, outside the court’s authority

to issue. See Burrell v. Commonwealth, 283 Va. 474, 480, 722 S.E.2d 272, 275 (2012) (vacating

                                                -7-
a sentencing order as void ab initio because it embodied an agreement that the trial court would

reduce a conviction for a felony to a misdemeanor if the defendant, following conviction and

sentencing, successfully served an active period of incarceration and probation); see also Evans

v. Smyth-Wythe Airport Comm’n, 255 Va. 69, 73-74, 495 S.E.2d 825, 828 (1998) (where the

trial court entered an order restricting the exercise of the power of eminent domain of an airport

authority, holding the judgment was void ab initio because that power is an inalienable attribute

of sovereignty and, as a result, “the character of the judgment was not such as the court had the

power to render”); Amin v. Cnty. of Henrico, 63 Va. App. 203, 209-10, 755 S.E.2d 482, 485

(2014) (holding that the defendant’s conviction for carrying a concealed weapon in violation of

“[a county ordinance] incorporating Code § 18.2-308” was void ab initio because the offense of

conviction “did not exist” and, therefore, the trial court had “‘exerted its power in a way not

warranted by the law’” (quoting Anthony, 83 Va. at 341, 5 S.E. at 178)). Instead, it involves a

sentencing component of a character that the court had the express authority to render pursuant

to Code § 16.1-272(A)(1)—a commitment to the DJJ. See Kelley, 285 Va. at 75-79, 737 S.E.2d

at 221-24 (holding that although the district court may have erred in the manner in which it

amended a warrant to charge reckless driving rather than driving while intoxicated, it had

jurisdiction under Code § 16.1-129.2 to amend warrants and, thus, any error in the method of

applying that statute did not render the judgment void ab initio).

       Although the Court’s language regarding jurisdiction in Rawls is broad, it applies only to

errors involving deviation from the statutory sentencing range. We cannot extend the Court’s

holding or contravene well-established finality principles. “‘Rule 1:1 and long standing case law

applying that rule preclude a trial court from entering a second sentencing order altering an

original sentencing order that has become final.’” Commonwealth v. Morris, 281 Va. 70, 77,

705 S.E.2d 503, 506 (2011) (quoting Charles v. Commonwealth, 270 Va. 14, 19, 613 S.E.2d 432,

                                                -8-
434 (2005)). Respecting the finality of judgments, particularly in the criminal sentencing

context, is a key attribute of our jurisprudence. See id. “‘Rule 1:1 implements that policy, and

we apply it rigorously, unless a statute [or common law principle] creates a clear exception to its

operation.’” Id. (quoting McEwen Lumber Co. v. Lipscomb Bros. Lumber Co., 234 Va. 243,

247, 360 S.E.2d 845, 848 (1987)).

       The language in Rawls does not create a clear exception applicable to the facts of this

case. Therefore, we conclude that any error in the original sentencing order constituted the mere

“misapplication of [a] statute” and “‘raise[d] a question of court error, not a question of the

court’s jurisdiction.’”2 Kelley, 285 Va. at 79, 737 S.E.2d at 224 (quoting Hicks v. Mellis, 275

Va. 213, 219, 657 S.E.2d 142, 145 (2008)). The trial court had the statutory authority to impose

a juvenile sentence on the appellant; its error, if any, was the mere failure to also impose some

“adult” time.3 As a result, any error in failing to impose adult time constitutes the

non-jurisdictional misapplication of a statute, and the court lacked authority under Rule 1:1 to

enter the untimely second sentencing order.




       2
         In light of this holding, we need not consider whether the court’s pronouncement of a
suspended commitment to the DJJ, unaccompanied by any adult sentence, was actual legal error.
See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc)
(holding that an appellate court should “decide[] cases ‘on the best and narrowest ground
available’” (quoting Air Courier Conf. v. Am. Postal Workers Union, 498 U.S. 517, 531 (1991)
(Stevens, J., concurring))).
       3
           The Commonwealth conceded at oral argument that if Rawls does not apply to render
the trial court’s error in the first sentencing order jurisdictional, the court lacked authority to
enter the second sentencing order. This concession is consistent with our holding in this opinion.
See, e.g., Logan v. Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc)
(noting that an appellate court must independently confirm the correctness of concessions of
law).
                                                   -9-
                                      III. CONCLUSION

       We hold that the original sentencing order remains in effect and the second sentencing

order is void ab initio based on the application of Rule 1:1. Accordingly, we dismiss the appeal

because it was noted from the invalid second order.

                                                                               Appeal dismissed.




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