                               COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, McClanahan and Beales
Argued at Salem, Virginia


JUDITH ANTHONY BRUMFIELD
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1462-08-3                                   JUDGE RANDOLPH A. BEALES
                                                                     JULY 7, 2009
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                Charles J. Strauss, Judge

                 Aubrey J. Rosser, Jr., for appellant.

                 Virginia B. Theisen, Senior Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       Judith Anthony Brumfield (appellant) appeals to this Court, asking that she be permitted to

serve the remainder of her sentence under the Department of Corrections (DOC) home electronic

incarceration (HEI) program. Given appellant has completed serving the active portion of her

sentence, we find the issue raised by appellant is moot.

                                              Background

       Very few of the facts related to appellant’s six embezzlement and one grand larceny

convictions are relevant to our discussion of her appeal. However, we note that the Pittsylvania

County Circuit Court sentenced her to twenty-three years of “[i]ncarceration with the Virginia

Department of Corrections” with twenty years of that sentence suspended. The final sentencing

order was entered on March 1, 2006. Two weeks after entry of that order, appellant asked the trial

court to enter another sentencing order, one that would allow her to serve the active portion of her


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
sentence under an HEI program rather than committing her to the DOC to serve her sentence. The

trial court denied her motion and entered an order to that effect on March 21, 2006.

        While serving her time in the penitentiary, appellant’s then-attorney contacted the Sheriff’s

Office for the City of Martinsville. Appellant, through her attorney, asked the sheriff to contact the

DOC and to determine if she was eligible for the DOC’s HEI program as administered by the

Martinsville Sheriff’s Office. Although the sheriff contacted the Martinsville Circuit Court and the

Martinsville Commonwealth’s Attorney’s Office, no one contacted the Pittsylvania County Circuit

Court or the Pittsylvania County Commonwealth’s Attorney’s Office or Sheriff’s Office. Based on

the information provided by the Martinsville authorities, the Martinsville Sheriff contacted the

DOC, and the DOC then approved appellant for its HEI program as administered by the

Martinsville Sheriff’s Office. She began to serve her sentence through this program on October 11,

2007.

        The Pittsylvania County Commonwealth’s Attorney’s Office eventually discovered that

appellant had been released from the penitentiary and was serving her sentence on an HEI program

administered by the Martinsville Sheriff’s Office. The Pittsylvania County Commonwealth’s

Attorney then filed a motion in the Pittsylvania County Circuit Court asking the court to order that

the DOC terminate appellant’s participation in the HEI program and to order that she be returned to

the penitentiary. The trial court granted this motion on May 30, 2008, and appellant was returned to

the penitentiary. She then appealed that decision to this Court.

        While the appeal was pending, appellant completed her three-year sentence, and she was

released from the physical custody of the DOC. 1 She is currently on probation pursuant to the

suspended portion of her sentence.


        1
         On the face of this record, appellant should have been released from the penitentiary at
the end of February 2009, assuming she did not have any credit for time served prior to March 1,
2006, which would have given her an earlier release date. At oral argument, appellant’s counsel
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                                              Analysis

       The Supreme Court of Virginia has explained,

               Whenever it appears or is made to appear that there is no actual
               controversy between the litigants, or that, if it once existed it has
               ceased to do so, it is the duty of every judicial tribunal not to
               proceed to the formal determination of the apparent controversy,
               but to dismiss the case.

Hankins v. Town of Virginia Beach, 182 Va. 642, 643, 29 S.E.2d 831, 832 (1944). See also In re

Times-World Corp., 7 Va. App. 317, 323, 373 S.E.2d 474, 477 (1988) (noting that courts may

not issue advisory opinions).

       Here, appellant is no longer in the physical custody of the DOC. She is free of both

incarceration in the penitentiary and via HEI. Therefore, the controversy over whether she

should serve the active portion of her sentence in the penitentiary or via HEI is moot. No actual

controversy continues to exist between the parties, and this Court, even if it reversed the trial

court’s decision, would not remedy any situation for appellant.

       Appellant argues that this issue is not moot because she remains under the supervision of

a probation officer and remains under the threat of revocation of her suspended sentence for the

next twenty years. Apparently, she is asking this Court to apply “the exception to the mootness

doctrine for cases that are ‘capable of repetition, yet evading review.’” Spencer v. Kemna, 523

U.S. 1, 17 (1998).

               “The capable-of-repetition doctrine applies only in exceptional
               situations,” [City of Los Angeles v.] Lyons, [461 U.S. 95,] 109
               [1983)], “where the following two circumstances [are] simultaneously
               present: ‘“(1) the challenged action [is] in its duration too short to be
               fully litigated prior to cessation or expiration, and (2) there [is] a
               reasonable expectation that the same complaining party [will] be


informed this Court that appellant had been released sometime during the winter. We note that it
was appropriate for counsel to inform the Court about these developments. Cf. Arizonians for
Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997) (explaining that counsel in a federal
case is required to inform the court of “facts [outside the record] that may raise a question of
mootness”).
                                                 -3-
               subject to the same action again,”’” Lewis [v. Continental Bank
               Corp.], 494 U.S. [472,] 481 [(1990)] . . . .

Id. Neither prong of this doctrine applies here.

       First, nothing about this case suggests that appellant had insufficient time to litigate this

issue. The trial court refused her request for HEI at the time of her sentencing in 2006, which

she did not appeal. Appellant then requested HEI through a different jurisdiction and without

informing the Pittsylvania County authorities. If she had informed the relevant parties at the

time she started the HEI program through Martinsville, then her case would have progressed

more quickly. In addition, appellant started the HEI program when she had only one and a half

years remaining on her sentence. If appellant had asked for HEI shortly after she was first placed

in the custody of the DOC, then she would have had more time to pursue legal action when her

efforts were frustrated. Nothing in this case suggests that similar controversies, due to the

inherent nature of these controversies, will always become moot before reaching this Court.

       Second, nothing in this case suggests that we can reasonably expect to see appellant

before us again in the same situation presented here. Although the trial court suspended twenty

years of her sentence and required two years of supervised probation after her release from the

DOC, appellant is not currently facing a revocation of that suspension. Therefore, we cannot

find that “there [is] a reasonable expectation that the same complaining party [will] be subject to

the same action again.” Id.

                                            Conclusion

       We find that the issue raised in this case is moot. Therefore, we dismiss this appeal

without opinion as to whether error exists in the record and without addressing the question




                                                -4-
presented by appellant. See Hallmark v. Personal Agency, Inc., 207 Va. 968, 971, 154 S.E.2d 5,

7 (1967) (dismissing case as moot); Hankins, 182 Va. at 644, 29 S.E.2d at 832 (same). 2

                                                                                       Dismissed.




       2
          The Supreme Court of Virginia recently found in Jay v. Commonwealth, 275 Va. 510,
659 S.E.2d 311 (2008), that affirmance, rather than dismissal, was the appropriate disposition for
appeals in which an appellant has violated Rule 5A:20 by failing to include in his brief any
citations in support of his arguments. Id. at 517-20, 659 S.E.2d at 315-17 (discussing Rule
5A:20(e)). However, Jay did not address the appropriate disposition for a moot question nor did
that opinion discuss Hallmark or Hankins. As the case currently before this Court does not
involve a violation of a procedural Rule of Court like Rule 5A:20 and does involve purely a
moot issue, we conclude that dismissal, rather than affirmance, is the appropriate disposition
here.
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