                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Clements and Senior Judge Overton
Argued at Chesapeake, Virginia


MICHAEL ANTHONY EDMOND
                                                               MEMORANDUM OPINION* BY
v.      Record No. 2272-03-1                                 JUDGE JEAN HARRISON CLEMENTS
                                                                    DECEMBER 14, 2004
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                Charles D. Griffith, Jr., Judge

                  Harry Dennis Harmon, Jr., for appellant.

                  Margaret W. Reed, Assistant Attorney General, for appellee.


        Michael Anthony Edmond appeals from two orders of the trial court entered on September

10, 2003, revoking his probation and imposing the remainder of his previously suspended sentences

for his multiple convictions of driving after having been declared an habitual offender, in violation

of Code § 46.2-357. On appeal, Edmond contends the trial court erred in imposing sentences

totaling six years for his probation violation rather than the four years he had remaining on his

original suspended sentences. Finding the trial court correctly imposed sentences totaling only four,

rather than six, years, we affirm the judgment of the trial court.

                                          I. BACKGROUND

        On June 3, 2002, Edmond was convicted in case number CR02002125-01 for operating a

motor vehicle on February 20, 2002, after having been declared an habitual offender, a

misdemeanor offense, in violation of Code § 46.2-357. That same date, he was also convicted in

case number CR02002125-00 for operating a motor vehicle on March 28, 2002, after having been

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
declared an habitual offender, a felony offense, in violation of Code § 46.2-357. By order entered

November 1, 2002, the trial court sentenced Edmond to twelve months’ incarceration on the

misdemeanor offense and three years’ incarceration on the felony offense. The trial court ordered

that the sentences were to “run concurrent to one another” and suspended “all but [twelve] months”

of the sentence for the felony offense.

        On September 5, 2002, Edmond was convicted in case number CR02003497-01 for

operating a motor vehicle on June 21, 2002, after having been declared an habitual offender, a

felony offense, in violation of Code § 46.2-357. By separate order entered November 1, 2002, the

trial court sentenced Edmond to three years’ incarceration. The trial court ordered that the sentence

was to “run concurrent with [the sentence imposed in] CR02002125-01” and suspended “all but

[twelve] months” of the sentence.

        On August 22, 2003, after conducting a hearing, the trial court found that Edmond had

violated the terms of his probation. The trial court revoked Edmond’s probation and, in two

separate orders entered on September 10, 2003, ordered Edmond to serve the entirety of the

remaining unserved two-year portion of the previously suspended felony sentence in each case. The

trial court further ordered that the two sentences were to “run consecutively.”

        On March 1, 2004, this Court granted Edmond an appeal on the question whether the trial

court erred in ordering the sentences to run consecutive to each other. As relevant here, Edmond

contends in his opening brief solely that “[t]he trial court erred in imposing a six-year term of

incarceration upon a determination of the appellant’s violation of a condition of his probation.”1 In

support of that contention, Edmond argues in his opening brief as follows:



        1
         Edmond also inexplicably includes in his opening brief argument in support of his
contention that the trial court abused its discretion in revoking his suspended sentences.
However, this Court refused Edmond’s petition for appeal on this question and we do not
consider it here.
                                                  -2-
                        Pursuant to § 19.2-306.C. of the Code of Virginia, 1950, as
                amended, the Court may only pronounce whatever sentence might
                have been originally imposed. The language of § 19.2-306.C. does
                not grant the Courts authority to modify an existing final judgment
                order. In the case at bar, the original active sentences on Indictment
                Nos. CR02003497-00, CR02002125-00 and CR02002125[-01] were
                ordered “to run concurrent to one another.” (Emphasis supplied.)
                (Appendix Vol. I, pp. 1, 3). At the time of the revocation hearing,
                the appellant served one year of the active sentence on each
                indictment when he served the twelve-month sentence imposed on
                Indictment No. CR02002125-01, leaving the appellant with a
                two-year suspended sentence on Indictment No. CR02002125-00
                and a two-year suspended on Indictment No. CR02003497-00, for a
                total remaining suspended sentence of four years, not six years. The
                appellant’s imposed six-year active sentence is illegal because it, in
                essence, modifies two sentences, which were final.
                        Thus, this Court is urged to review the trial court’s decision
                below.

This is the entirety of Edmond’s argument.

        In response to Edmond’s opening brief, the Commonwealth filed a “Consent by the

Commonwealth that Judgment be Reversed.” In support of its position that “the judgment appealed

from be reversed,” the Commonwealth states that Edmond’s original sentencing orders provided

that his sentences were to run concurrently while the revocation orders provided that his remaining

unserved sentences would run consecutively. Because the trial court did not have the power, upon

probation revocation, to change concurrent sentences into consecutive sentences, the action by the

trial court, the Commonwealth states, was beyond its sentencing authority. Thus, the

Commonwealth concludes, the provision for consecutive sentences was void and the judgment of

the trial court must be reversed, the sentences vacated, and the case remanded for resentencing.

        In a written response, Edmond requests that we accept the Commonwealth’s consent.

Nevertheless, we directed the parties to appear at oral argument to answer questions regarding the

Commonwealth’s consent, Edmond’s response to that consent, and inconsistencies between the

parties’ respective positions and the record.



                                                 -3-
        At oral argument, both parties acknowledged that their previously stated interpretations of

the trial court’s orders were flawed. Additionally, the Commonwealth requested that this Court not

accept its consent.

                                           II. ANALYSIS

        It is clear from the record that the original twelve-month sentence for Edmond’s February

20, 2002 misdemeanor conviction and the three-year sentence for Edmond’s March 28, 2002 felony

conviction ran concurrently. It is also clear from the record that the three-year sentence for

Edmond’s June 21, 2002 felony conviction also ran concurrently with, and only with, the

twelve-month misdemeanor sentence. Thus, upon serving the initial twelve months’ incarceration,

Edmond completed the misdemeanor sentence and the first year of each of the two felony sentences.

Consequently, he had two suspended years remaining on both the March 28, 2002 felony conviction

and the June 21, 2002 felony conviction. Because those sentences did not run concurrently, the total

remaining combined suspended sentence was four years. See Robertson v. Supervisor of Wise

Correctional Unit, 248 Va. 232, 234-35, 445 S.E.2d 116, 117 (1994) (holding that, pursuant to Code

§ 19.2-308, absent an express direction by the trial court that they are to run concurrently, multiple

sentences are to run consecutively).

        Hence, contrary to Edmond’s stated premise, the trial court did not modify the length of the

originally imposed sentences when, following Edmond’s probation violation, it ordered him to serve

the remaining, previously suspended two-year portion of the sentence in each of the two felony

cases. Thus, as reflected in the trial court’s September 10, 2003 orders, the trial court imposed a

total of four years, and not six as Edmond states in his brief. Likewise, contrary to the

Commonwealth’s stated premise, the trial court did not alter how those sentences were to run.

        There being no inconsistency between the original sentences and the sentences imposed

following Edmond’s probation violation, we conclude that the trial court did not err in ordering that

                                                 -4-
the two sentences were to run consecutively. We further conclude that the claim of error addressed

by Edmond in his brief is moot since the trial court unquestionably did exactly what Edmond claims

the trial court should have done: it sentenced him to four years rather than six.

       Accordingly, we do not accept the Commonwealth’s consent and affirm the judgment of the

trial court and Edmond’s sentences.

                                                                                         Affirmed.




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