                             COURT OF APPEALS OF VIRGINIA


Present: Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia


CHARLES A. COE
                                                             MEMORANDUM OPINION* BY
v.     Record No. 3293-02-2                                 JUDGE ROBERT J. HUMPHREYS
                                                                   MARCH 2, 2004
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                              Michael C. Allen, Judge

               Aubrey R. Bowles, IV (Bowles and Bowles, on brief),
               for appellant.

               Michael T. Judge, Assistant Attorney General (Jerry W.
               Kilgore, Attorney General, on brief), for appellee.


       Charles A. Coe appeals from a decision of the circuit court, dismissing his motion to

modify his previously imposed sentence. Coe contends on appeal that the court erred by

determining that it lacked jurisdiction to modify his sentence. For the reasons that follow, we

agree that the circuit court lacked the requisite jurisdiction to modify Coe’s sentence and we

affirm its order dismissing Coe’s motion.

       “On appeal, we review the evidence in the light most favorable to the Commonwealth,

granting it all reasonable inferences deducible from that evidence.” Ziats v. Commonwealth, 42

Va. App. 133, 136, 590 S.E.2d 117, 118 (2003). So viewed, the evidence here establishes that on

June 5, 2001, Coe pled guilty to two counts of grand larceny, one count of statutory burglary,




       *
          Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
and one count of possession of heroin.1 After a hearing held on October 3, 2001, and by order

dated November 12, 2001, Judge Michael C. Allen sentenced Coe to serve ten years with the

Virginia Department of Corrections on each grand larceny conviction, twenty years for the

statutory burglary conviction, and five years for the possession of heroin conviction. Judge

Allen, however, suspended 38 years of the consecutive sentences, leaving Coe to serve an active

sentence of seven years with the Department of Corrections.2

       Subsequent to the sentencing hearing, but prior to the court’s issuance of the final

sentencing order, Coe filed, pro se, a Motion to Reduce or Suspend Sentence, requesting that the

court “reduce/suspend” his sentence to “time already served” and “probation.” The certificate of

service on the form motion did not reflect that Coe served his counsel with the motion, nor did it

reflect that Coe served the motion on the Commonwealth.3 On November 20, 2001, Judge

William R. Shelton entered orders directing that Coe’s sentence be suspended, that his bond be

revoked, and that he be held in the custody of the Riverside Regional Jail and “not transferred to

the custody of the Department of Corrections,” “pending a hearing [o]n [Coe’s] motion to

modify his sentence.” The orders explicitly stated that they were entered because Coe had




       1
         We note from the record that Coe was also charged with one count of possession of a
firearm by a convicted felon and one count of possession of a firearm while in possession of
heroin. Although the record reflects that Coe was neither arraigned, nor pled guilty to these
charges, the trial order states that he pled guilty to the charges, and was convicted of them.
Nevertheless, the subsequent sentencing order reflects that Coe was not sentenced for the
charges.
       2
         The record reflects that during these proceedings, and thereafter, Coe was represented
by attorney Aubrey R. Bowles, IV.
       3
       The record demonstrates that Coe filed a virtually identical motion on December 17,
2001. Once again, Coe filed the motion pro se, and neither Coe’s counsel, nor the
Commonwealth, appears in the certificate of service appended to the motion.
                                               -2-
“moved the Court to modify his sentence.” Coe’s counsel of record signed the respective orders

under the designation, “I ask for this.”

        On January 24, 2002, Judge Allen entered an order denying Coe’s motion. The order

reflected that the “Hearing Date” for the motion was January 17, 2002.

        On May 13, 2002, Coe filed an additional Motion to Reduce or Suspend with the circuit

court. Once again, Coe filed the motion pro se and failed to serve the motion on his counsel of

record, as well as the Commonwealth. On July 3, 2002, Judge Allen again entered an order

denying Coe’s motion. The order reflected that the “Hearing Date” for the motion was June 26,

2002.

        On September 16, 2002, Coe filed yet another motion seeking to modify his sentence.

This time, Coe filed the motion by counsel and properly served the motion on the

Commonwealth. The hearing on the motion was scheduled for September 25, 2002. On that

day, Coe’s counsel appeared and informed Judge Allen that Coe had been transferred into the

custody of the Department of Corrections on September 24, 2002. Noting that he was not aware

of the orders entered by Judge Shelton in November of 2001, Judge Allen subsequently ruled as

follows, in relevant part:

               3. On July 3, 2002, an order embodying the Court’s denial of the
               defendant’s pro se motion was entered. This order recited that the
               defendant’s pro se motion had been received by the Court and was
               denied.

               4. The Court finds that in its July 3, 2002 order, the Court
               inadvertently failed to recite its intention at the time, which was to
               re-impose the original sentence in the case, the defendant’s motion
               to reconsider that sentence having been denied.

               5. The defendant’s pro se motion having been denied and the
               Court’s intention being to impose the previously suspended
               sentence, the defendant was delivered into the custody of the
               Department of Corrections. No orders having been entered which
               would operate to stay the defendant’s transferal to the Department

                                                -3-
               of Corrections, more than 21 days having passed since entry of the
               final order, and the defendant having been received [sic] DOC
               custody, this Court no longer possesses jurisdiction to entertain the
               instant motion.

               6. Accordingly, the Court hereby ORDERS that the pending
               motion is dismissed and pursuant to Va. Code § 8.01-428, the
               order entered herein on July 3, 2002 is amended to correct an
               inadvertent omission and to recite that the defendant’s original
               sentence was reaffirmed and reimposed.

       It is from this order that Coe now appeals. Specifically, Coe contends that the circuit

court erred in 1) considering his pro se motion, “in violation of Rule 1:5,” because the record

reflected that he was represented by counsel; 2) considering his pro se motion, “in violation of

Rule 1:12,” because the motion amounted to an ex parte communication to the court; and, 3)

determining that it lacked jurisdiction to consider Coe’s motion to modify because the “[c]ourt

never reimposed the original sentence.” We disagree.

       We first note that Coe’s counsel clearly argued below that the initial motions to suspend

or modify his sentence were filed pro se and against the advice of counsel. Coe’s counsel also

argued that Coe had no “legal authority” to represent himself while he had counsel of record.

However, Coe’s counsel did not argue that the court lacked the authority to consider his motions

because they were filed in violation of Rules 1:5 and 1:12.4

       For purposes of Rule 5A:18, counsel may not rely upon grounds for an objection on

appeal that counsel failed to assert before the trial court. Swann v. Commonwealth, 247 Va. 222,


       4
         Rule 1:5 provides, in relevant part, that “‘Counsel of record’ includes a counsel or party
who has signed a pleading in the case or who has notified the other parties and the clerk in
writing that he appears in the case. Counsel of record shall not withdraw from a case except by
leave of court after notice to the client of the time and place of a motion for leave to withdraw.”
Rule 1:12 requires, among other things, that “[a]ll pleadings, motions and other papers not
required to be served otherwise and requests for subpoenas duces tecum shall be served by
delivering, dispatching by commercial delivery service, transmitting by facsimile, delivering by
electronic mail when consented in writing signed by the person to be served, or mailing, a copy
to each counsel of record on or before the day of filing.”
                                               -4-
229, 441 S.E.2d 195, 201 (1994). Nevertheless, Rule 5A:18 “does not prohibit reliance on

statutes or cases not presented to the trial court to support, on appeal, a position otherwise

adequately presented at trial.” Lash v. County of Henrico, 14 Va. App. 926, 929, 421 S.E.2d

851, 853 (1992). We assume, without here deciding, that because Coe’s counsel raised the issue

concerning Coe’s pro se filings before the circuit court, he adequately presented these issues to

the circuit court for purposes of appeal. Even so, we do not address the merits of Coe’s claims in

this regard, or the application of the newly espoused Rules in support of his claims.

       The courts of this Commonwealth have long held that “[n]o litigant, even a defendant in a

criminal case, will be permitted to approbate and reprobate — to invite error, as the defense

admittedly did here, and then to take advantage of the situation created by his own wrong.”

Fisher v. Commonwealth, 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988); see also Sullivan v.

Commonwealth, 157 Va. 867, 878, 161 S.E. 297, 300 (1931); Montague v. Commonwealth, 40

Va. App. 430, 439, 579 S.E.2d 667, 671 (2003); Brown v. Commonwealth, 37 Va. App. 507,

519, 559 S.E.2d 415, 421 (2002). “The defendant, having agreed upon the action taken by the

trial court, should not be allowed to assume an inconsistent position.” Clark v. Commonwealth,

220 Va. 201, 214, 257 S.E.2d 784, 792 (1979) (citing Commonwealth v. Beavers, 150 Va. 33,

142 S.E. 402 (1928)).

       The record here reflects that this is exactly what Coe attempts to do – to take advantage

of his “own wrong.” Sullivan, 157 Va. at 878, 161 S.E. at 300. Indeed, it was clearly Coe that

filed the motions without advice of counsel, and Coe who filed the motions ex parte.

Furthermore, the court’s subsequent orders, directing that Coe’s sentence be suspended and that

he be held in the custody of the Riverside Regional Jail (entered after Coe filed his first two

motions to modify and before the circuit court’s first order denying Coe’s motions), explicitly

stated that the orders were entered upon Coe’s motion to “modify his sentence” and “pending a
                                                -5-
hearing [o]n his motion to modify his sentence.” (Emphasis added). Coe’s counsel of record

signed the respective orders under the designation, “I ask for this.”

       Thus, the record demonstrates that, although Coe filed his initial two motions to modify,

pro se and without service to the appropriate parties, Coe’s counsel was aware of the fact that the

motions had been filed and that a hearing on the motions was pending. Yet, neither Coe, nor his

counsel, acted to correct the deficiencies of which Coe now complains. Thus, we hold that Coe

is barred from now invoking these claims on appeal. See Asgari v. Asgari, 33 Va. App. 393,

403, 533 S.E.2d 643, 648 (2000) (a party may not approbate and reprobate, by “ascribing error to

an act by the trial court that comported with his representations”).

       As to Coe’s final contention, we first recognize that:

               Rule 1:1 of the Rules of the Supreme Court of Virginia provides
               that a trial court may modify, vacate, or suspend all judgments,
               orders, and decrees within twenty-one days of the date of entry, but
               no longer. Expiration of the twenty-one day time limitation divests
               the trial court of jurisdiction. See Virginia Dept. of Corr. v.
               Crowley, 227 Va. 254, 260, 264, 316 S.E.2d 439, 442, 444 (1984).
               Orders entered in violation of Rule 1:1 are void. Smith v.
               Commonwealth, 32 Va. App. 766, 775, 531 S.E.2d 11, 16 (2000).

               Rule 1:1 is subject to certain limited exceptions, however. Davis
               v. Mullins, 251 Va. 141, 149, 466 S.E.2d 90, 94 (1996); Decker v.
               Decker, 22 Va. App. 486, 494, 471 S.E.2d 775, 779 (1996). Code
               § 19.2-303 is one of those exceptions. It provides that

               [“][i]f a person has been sentenced for a felony . . . the court which
               heard the case, if it appears compatible with the public interest and
               there are circumstances in mitigation of the offense, may, at any
               time before the person is transferred to the Department [of
               Corrections], suspend or otherwise modify the unserved portion of
               such a sentence.[”]

               Code § 19.2-303. Once the defendant has been transferred to the
               DOC and twenty-one days have passed since the court’s last order,
               the court can no longer modify a sentence. Rule 1:1; D’Alessandro
               v. Commonwealth, 15 Va. App. 163, 168, 423 S.E.2d 199, 202



                                                -6-
               (1992); see also In re Commonwealth, Dep’t of Corr., 222 Va. 454,
               463, 281 S.E.2d 857, 862 (1981).

Ziats, 42 Va. App. at 138-39, 590 S.E.2d at 120.

       The parties do not dispute the fact that well over 21 days had passed since the entry of the

final sentencing order in this matter. Further, the parties do not dispute the fact that, prior to the

September 25, 2002 hearing on Coe’s final motion to modify, Coe had been transferred into the

custody of the DOC. Coe argues instead that because the court failed to reimpose Coe’s

“original sentence,” by its order of July 3, 2002, the circuit court maintained jurisdiction over the

matter, pursuant to Code § 19.2-303. Coe further argues that the circuit court improperly

reimposed the sentence by entering the nunc pro tunc order. We disagree with each of Coe’s

contentions.

       First, as stated above, neither party disputes the fact that Coe had been transferred into

the custody of the DOC prior to the September 25, 2002 hearing. “By its express terms, Code

§ 19.2-303 permits the trial court . . . to retain jurisdiction beyond the twenty-one-day limit of

Rule 1:1 to ‘suspend or otherwise modify the unserved portion of such a sentence’” only if the

defendant “‘has not actually been transferred’” to the DOC. Patterson v. Commonwealth, 39

Va. App. 610, 617, 575 S.E.2d 583, 586 (2003) (quoting Code § 19.2-303). There are no

exceptions or qualifications to the application of that rule. See id.; see also Wright v.

Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000) (recognizing that

rehabilitative statutes should be liberally construed in keeping with their rehabilitative purpose);

but see Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (noting that

a statute may be interpreted in accord with its purpose only to the extent that such purpose “‘may

be accomplished without doing harm to [the statute’s] language’” (quoting Gough v. Shaner,

Adm’r, 197 Va. 572, 575, 90 S.E.2d 171, 174 (1955))). Most significantly, there is no exception


                                                 -7-
or qualification to the rule that would allow the circuit court to retain jurisdiction under the

circumstances implicitly alleged by Coe – that the transfer occurred in violation of a court order

retaining custody of a defendant in the local jail for some indefinite period of time. Thus, we

find that the circuit court properly found that it lacked jurisdiction to consider Coe’s motion to

modify after his transfer to the DOC.

       Nevertheless, we need not rest our decision on those grounds alone. Indeed, we further

find that the circuit court did not err in entering the nunc pro tunc order, correcting the July 3,

2002 order.

               We apply an abuse of discretion standard to evaluate whether the
               trial court entered a valid nunc pro tunc order. See Harris v.
               Commonwealth, 222 Va. 205, 209, 279 S.E.2d 395, 398 (1981);
               Dickenson County v. West Dante Supply Co., 145 Va. 513, 518,
               134 S.E. 552, 553 (1926). A trial court may exercise its nunc pro
               tunc power only to “correct errors in the record so as to cause its
               acts and proceedings to be set forth correctly.” Davis, 251 Va. at
               149, 466 S.E.2d at 94; see also Code § 8.01-428(B). “When acting
               nunc pro tunc, the court does not reacquire jurisdiction over the
               case.” Davis, 251 Va. at 149, 466 S.E.2d at 94. Thus, the “power
               to amend . . . must not be confounded with the power to create.”
               Gagnon v. United States, [193 U.S. 451, 457 (1904)]; Council v.
               Commonwealth, 198 Va. 288, 292, 94 S.E.2d 245, 248 (1956).
               “Under the rule the . . . nunc pro tunc entry should not be
               made . . . to show what the court should have done as distinguished
               from what actually occurred. The court’s authority . . . extends no
               further than the power to make the record entry speak the truth.”
               Id. It is clear, therefore, that the nunc pro tunc power is reserved
               for the correction of clerical error only. Id. Any other rule “would
               render meaningless the mandate of Rule 1:1 and would do great
               harm to the certainty and stability that the finality of judgments
               brings.” Davis, 251 Va. at 150, 466 S.E.2d at 94.

Ziats, 42 Va. App. at 140, 590 S.E.2d at 120-21.

       In the case at bar, the record reflects that the November 20, 2001 orders, suspending

Coe’s sentence, operated only to suspend his sentence “pending a hearing [o]n his motion to

modify his sentence.” In its orders denying Coe’s motions, the court listed “hearing dates” for


                                                 -8-
each of the motions.5 Thus, it is clear that once those “hearings” were completed and Coe’s

motions disposed of, the court intended for Coe’s sentence to be reimposed. Indeed, once the

court “heard” and disposed of Coe’s motions, the suspension of his sentence was clearly lifted by

the operation of the plain language set forth in the court’s November 20, 2001 orders suspending

his sentence “pending those hearings.” Accordingly, we find no error in the circuit court’s entry

of the nunc pro tunc order, because the circuit court did nothing more than correct an inadvertent

omission, permitting the “record entry [to] speak the truth.” Council, 198 Va. at 292, 94 S.E.2d

at 248; see also Carter v. Commonwealth, 199 Va. 466, 469, 100 S.E.2d 681, 683 (1957) (noting

that even the “omission of the sentence on the verdict” may be supplied by an order entered nunc

pro tunc).

         Because we dispose of Coe’s appeal on these grounds, we need not address the

Commonwealth’s contention that the circuit court lacked the “authority to order a prisoner held

in a local jail if he has been sentenced to the DOC.” We thus affirm the judgment of the circuit

court.

                                                                                        Affirmed.




         5
        Coe did not argue below, and does not argue on appeal, that the “hearing[s]” did not
occur. Moreover, with the exception of his defaulted arguments concerning Rules 1:5 and 1:12,
Coe has not argued that the proceedings underlying the circuit court’s denials of his first three
motions to modify were otherwise inadequate. Thus, we do not address this issue further. See
Rule 5A:18.
                                               -9-
