                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Alston and Senior Judge Willis
PUBLISHED


            Argued at Alexandria, Virginia


            ANDREW McQUAY JACOBS
                                                                                  OPINION BY
            v.      Record No. 2447-11-4                                   JUDGE RANDOLPH A. BEALES
                                                                                 MARCH 12, 2013
            COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                           Michael F. Devine, Judge1

                           Lauren Whitley, Senior Assistant Public Defender (Office of the
                           Public Defender, on briefs), for appellant.

                           Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                    Andrew McQuay Jacobs (appellant) appeals a revocation order entered by the Circuit

            Court of Fairfax County on December 5, 2011. Appellant argues on appeal that “the trial court

            had no authority to impose 6 months of incarceration as the court had previously imposed only

            ninety days of incarceration and failed to re-suspend any of that sentence as required under Code

            § 19.2-306.” For the following reasons, we affirm the trial court’s order entered on December 5,

            2011.

                                                   I. BACKGROUND

                    On February 22, 2006 appellant pled guilty to one count of felony attempted abduction

            (Count III), in violation of Code §§ 18.2-47 and 18.2-26, and one count of felony abduction

            (Count II), in violation of Code § 18.2-47. Appellant also entered a guilty plea pursuant to North


                    1
                    Appellant was originally sentenced on July 10, 2006 by Judge Stanley P. Klein.
            However, the revocation order upon which this appeal was brought was entered on December 5,
            2011 and signed by Judge Michael F. Devine.
Carolina v. Alford, 400 U.S. 25 (1970), on one count of burglary (Count I), in violation of Code

§ 18.2-90. On July 10, 2006 appellant was sentenced by Judge Stanley P. Klein to twenty years

incarceration with eighteen years suspended for Count I, five years incarceration with three years

suspended for Count II, and five years incarceration with three years suspended for Count III.

The sentences were ordered to run consecutively. Appellant was placed on five years of

intensive probation upon his release from incarceration.

       On April 15, 2011 appellant was brought before Judge Michael F. Devine on an

allegation that he violated the terms of his probation. Appellant admitted the violation, and

Judge Devine revoked ninety days of appellant’s previously suspended sentence on Count III.

The order did not address the suspended sentences for Counts I and II. The order referred to

them only in its summary of appellant’s convictions and sentences. The April 20, 2011 final

order reads in pertinent part:

                           In consideration, the Court ORDERED that ninety (90)
                  days of the previously suspended sentence on Count III is revoked
                  and ordered into execution. The Court further ORDERED that
                  ANDREW MCQUAY JACOBS serve ninety (90) days, on Count
                  III, incarceration in the Fairfax Adult Detention Center.
                           The Court further ORDERED that the Defendant’s
                  probation is extended to December 31, 2021.

       On November 18, 2011 another probation violation hearing was held before Judge

Devine, who found that appellant violated the terms of his probation again. The revocation

order, upon which this appeal was brought, was issued on December 5, 2011 and reads in

pertinent part:

                         [T]he Court revoked the entirety of the previously
                  suspended sentence on Count I and re-suspended all but six (6)[2]


       2
          There is a scrivener’s error in the December 5, 2011 order, which states: “[T]he Court
revoked the entirety of the previously suspended sentence on Count I and re-suspended all but
six (6) of that sentence for a period of five (5) years from today’s date of November 18, 2011.”
(Emphasis added). The order omitted the word “months” after “six (6).” However, it is clear
                                                  -2-
               of that sentence for a period of five (5) years from today’s date of
               November 18, 2011.
                       The Court further ORDERED that the entirety of the
               previously suspended sentences on Counts II and III are revoked
               and the Court re-suspended the entirety of the sentences imposed
               on Counts II and III for a period of five (5) years from today’s date
               of November 18, 2011.
                       The Court further ORDERED that the Defendant is placed
               on intensive probation for a period of five (5) years from today’s
               date of November 18, 2011.

                                          II. ANALYSIS

       Appellant argues on appeal that the trial court had no authority to impose six months of

active incarceration in its December 5, 2011 revocation order because he claims that the trial

court, in its prior April 20, 2011 revocation order, imposed only ninety days of active

incarceration and did not expressly re-suspend any of that sentence (for Count III) or the

remaining suspended sentences (for Counts I and II). Appellant asserts that, if the trial court



that the trial court intended to state “six (6) months” because at the probation revocation hearing
on November 18, 2011 (from which the December 5, 2011 order resulted), the trial court stated:

               So I don’t know what more motivation I can give you. I gave you
               90 days back the last time. This time it’s going to be six months.
               I’m going to revoke the entirety of your sentence on the burglary
               charge. That’s eighteen years. I’m going to revoke the previously
               suspended three years on the abduction charge. I’m going to
               revoke the attempt – the prior three years, minus 90 days, on the
               abduction charge.

                     So I have no-revoked all the time that was previously
               imposed. I will resuspend all of that time except for six months.

(Emphasis added). Moreover, the assignment of error granted states: “The trial court had no
authority to impose six months of incarceration as the court had previously imposed only ninety
days of incarceration and failed to re-suspend any of that sentence as required under Virginia
Code § 19.2-306.” (Emphasis added). Accordingly, while we affirm the trial court’s December
5, 2011 order, we also remand this matter for the limited purpose of correcting this clerical
mistake. The corrected December 5, 2011 order should state in pertinent part: “the Court
revoked the entirety of the previously suspended sentence on Count I and re-suspended all but
six (6) months of that sentence for a period of five (5) years from today’s date of November 18,
2011.”

                                               -3-
intended to re-suspend any part of appellant’s sentence in the April 20, 2011 revocation order,

then Code § 19.2-306 required the trial court to expressly do so. Thus, appellant contends that,

by the time of the November 18, 2011 revocation hearing, there was not any remaining

suspended sentence available to be revoked. Consequently, appellant argues that the trial court’s

December 5, 2011 revocation order, which resulted from that hearing and which is the basis of

this appeal, was erroneous. 3

        We observe, as an initial matter, that appellant claims that the trial court’s April 20, 2011

revocation order affected his sentences on all three counts – even though the plain language of

the April 20, 2011 order only references Count III. Counts I and II are never mentioned in the

April 20, 2011 order (except in the summary of the prior history of the case). However, the

Attorney General’s brief on appeal to this Court also accepts the premise the April 20, 2011

order implicitly affects the sentences for Counts I and II. 4 Even if we were to assume without

deciding that those sentences are included within the scope of that order, we conclude that the

trial court did not err here.

        In revocation appeals, the trial court’s “findings of fact and judgment will not be reversed

unless there is a clear showing of abuse of discretion.” Davis v. Commonwealth, 12 Va. App.

81, 86, 402 S.E.2d 684, 687 (1991). The evidence is considered in the light most favorable to the


        3
         We disagree with appellant’s argument that Smith v. Commonwealth, 222 Va. 700, 284
S.E.2d 590 (1981), is applicable here, as the circumstances in Smith were readily distinguishable
from the circumstances here. Smith was decided under a previous version of Code § 19.2-306,
and even more importantly, in Smith the trial court initially suspended the imposition of Smith’s
sentence, which is not the case here. Id. at 701-02, 284 S.E.2d at 590.
        4
          Specifically, the Attorney General asserts on brief that “the only reasonable
interpretation” of the April 20, 2011 order is that it “revoked the entirety of the remaining
suspended sentences and then correspondingly re-suspended the entirety of Counts I and II’s
sentences and the remainder of Count III’s sentence.” (Emphasis added). Furthermore, the
Attorney General’s brief also contends that the trial court in the December 5, 2011 order “rightly
determined the April 2011 order re-suspended the remainder of the sentences in Count III and all
of the sentences in Counts I and II.” (Emphasis added).
                                                 -4-
Commonwealth, as the prevailing party below. See, e.g., Giles v. Commonwealth, 277 Va. 369,

375, 672 S.E.2d 879, 883 (2009). To the extent that appellant’s assignment of error raises a

question of statutory interpretation, that question is reviewed de novo on appeal. See id. at 373,

672 S.E.2d at 882.

               Revocation and Re-suspension of a Sentence under Code § 19.2-306

        Code § 19.2-306(C) states, in pertinent part,

                         If the court, after hearing, finds good cause to believe that
                the defendant has violated the terms of suspension, then . . . (ii) if
                the court originally suspended the execution of the sentence, the
                court shall revoke the suspension and the original sentence shall be
                in full force and effect. The court may again suspend all or any
                part of this sentence and may place the defendant upon terms and
                conditions or probation.

(Emphasis added).

        Neither the text of Code § 19.2-306(C) nor the case law interpreting it establishes that the

trial court abused its discretion here. We disagree with appellant’s argument that the April 20,

2011 order’s lack of an explicit re-suspension of the balance of the remaining sentence

constituted reversible error. 5 It is evident that the trial court implicitly interpreted the April 20,



        5
          We observe that Code § 19.2-306(C)’s requirement that, “if the court originally
suspended the execution of the sentence, the court shall revoke the suspension” is directory – not
mandatory. Therefore, the trial court did not need to explicitly re-suspend the sentences from the
original sentencing order of July 10, 2006 in the April 20, 2011 revocation order.
        The use of the word “shall” in Code § 19.2-306(C) is directory, pursuant to the Supreme
Court’s explanation in Commonwealth v. Rafferty, 241 Va. 319, 402 S.E.2d 17 (1991), of when
the word “shall” is directory or mandatory:

                In construing another statute directing the act by the word “shall,”
                as in this case, we said “[a] statute directing the mode of
                proceeding by public officers is to be deemed directory, and a
                precise compliance is not to be deemed essential to the validity of
                the proceedings, unless so declared by statute.”

Id. at 324-25, 402 S.E.2d at 20 (quoting Nelms v. Vaughan, 84 Va. 696, 699, 5 S.E. 704, 706
(1888)). Accordingly, the use of the word “shall” in Code § 19.2-306(C) is directory – not
                                              -5-
2011 revocation order in its subsequent December 5, 2011 revocation order, showing that the

trial court actually intended in its April 20, 2011 order to re-suspend the balance of the remaining

available sentence.

       We hold that the trial court’s implicit interpretation of its April 20, 2011 revocation order

is not an abuse of discretion, and is supported by this Court’s decision in Leitao v.

Commonwealth, 39 Va. App. 435, 573 S.E.2d 317 (2002), which controls the issue before us and

provides a framework for our analysis of Code § 19.2-306(C). As in Leitao, the trial judge here

construed its revocation order in the only manner possible – given that a trial court simply lacks

any authority to “shorten the original suspended sentence.” Id. at 438, 573 S.E.2d at 319.

                                      The Decision in Leitao

       In 1996, the trial court sentenced Leitao to six years in prison, suspended all but six

months of the sentence, and placed him on probation for two years. Id. at 437, 573 S.E.2d at

318. The trial court later found in 1997 that Leitao violated his probation, revoked his suspended

sentence, “ordered him to serve 12 months in jail, re-suspended the balance of the sentence, and

placed the defendant on probation.” Leitao was found again in 1999 to have violated probation,

and the court order “revoked the sentence and probation, ordered him to serve one year of the

original sentence, and placed him on probation for two years upon his release.” When Leitao

was found to have violated probation in 2002, the trial court revoked his suspended sentence and

probation and ordered him to serve the balance of the original sentence. Id. Specifically, the

trial court stated: “When the suspension was revoked” in 1999, “the sentence would have gone

into effect automatically. And then . . . the Court placed him back on probation and [by




mandatory – because it directs the mode of proceeding by public officers (the trial court judge),
and the statute does not declare otherwise.

                                                -6-
implication] re-suspended the sentence.” Id. at 438, 573 S.E.2d at 318-19 (alterations in

original).

        Similar to appellant’s argument here, Leitao argued on appeal to this Court that, because

the trial court did not explicitly re-suspend the sentence after revoking the sentence in the 1999

order, there was no suspended sentence in 2002 for the trial court to suspend. Id. at 437-38, 573

S.E.2d at 318. This Court disagreed and “defer[red] to the trial court’s interpretation of its own

order.” Id. at 438, 573 S.E.2d at 319 (citing Fredericksburg Constr. Co. v. J.W. Wyne

Excavating, 260 Va. 137, 144, 530 S.E.2d 148, 152 (2002); Rusty’s Welding Serv., Inc. v.

Gibson, 29 Va. App. 119, 129, 510 S.E.2d 255, 260 (1999)). This Court concluded that the trial

court did not abuse its discretion in interpreting the 1999 order, reasoning that “[t]he only logical

interpretation of the 1999 order is the one the trial court adopted.” Leitao, 39 Va. App. at 438,

573 S.E.2d at 319. This Court explained that

               The absence of an explicit recitation re-suspending the balance of
               the original sentence did not implicitly discharge the remaining
               sentence; it implicitly re-suspended the balance that the defendant
               had not served.

                           *       *       *       *       *       *       *

                       The 1999 order revoked the suspended sentence, and
               sentenced the defendant to serve one year of the original sentence.
               The time not served remained suspended subject to revocation if
               the defendant violated the terms of probation. When the defendant
               did violate those terms, the trial court could revoke that suspension
               and order the defendant to serve the . . . balance of his original
               sentence.

Id. at 438-39, 573 S.E.2d at 319 (emphasis added).

        Although the circumstances of this case differ somewhat from those in Leitao, in that the

trial court here implicitly (rather than explicitly) interpreted the intent of the April 20, 2011

revocation order in its subsequent December 5, 2011 revocation order, the distinction between an

implicit interpretation and an explicit interpretation certainly is not dispositive here. Consistent
                                                 -7-
with Leitao, the trial court here, in its December 5, 2011 order, gave the “only logical

interpretation” of the April 20, 2011 order – i.e., that the April 20, 2011 order brought about the

implicit re-suspension of sentence. See id. at 438, 573 S.E.2d at 319. As in Leitao, the “only

logical interpretation” of the earlier revocation order is that “the absence of an explicit recitation

re-suspending the balance of the original sentence did not implicitly discharge the remaining

sentence; it implicitly re-suspended the balance that the defendant had not served.” Id.

     Revocation Orders Cannot Simply Negate or Erase Previously Entered Final Sentences

       Appellant’s argument on appeal here suffers from the same faulty premise that the

defendant in Leitao presented. Specifically, appellant’s argument presupposes that the trial court

somehow had the authority in its April 20, 2011 order to shorten the length of appellant’s

original sentence. This assumption is erroneous and would lead to an absurd interpretation of a

trial court’s authority under Code § 19.2-306. ‘“[A] statute should never be construed so that it

leads to absurd results.”’ Auer v. Commonwealth, 46 Va. App. 637, 651, 621 S.E.2d 140, 147

(2005) (quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).

       It is plain common sense that, while a trial court has the authority to change the

conditions of probation, it does not – as appellant suggests – have the authority to modify an

original sentence more than 21 days after the final sentencing order has been entered. See Rule

1:1; cf. Code § 19.2-303 (providing an exception that is inapplicable here). It would be absurd to

hold, as appellant would have us hold, that a trial court can simply erase a sentence that has been

entered in a final order, with a single swipe of a pen, merely because the trial judge did not

explicitly re-suspend a sentence in an order from a revocation hearing. A trial court could not

even shorten a final sentence if it wanted to do so – i.e., if the defendant was on especially good




                                                 -8-
behavior. 6 A trial court certainly cannot shorten a defendant’s sentence by accident – or because

the defendant’s bad behavior has brought him before a court in a revocation proceeding.

       Simply put, a trial court cannot shorten a defendant’s sentence that has already been

meted out regardless of how good his behavior is. Therefore, it would defy all logic for a court

to be able to reduce and even wipe out a suspended sentence when the defendant’s bad behavior

is the very reason for bringing him back before the court in a revocation proceeding. 7

       This Court’s decision in Leitao directly addresses this point. This Court in Leitao held

that “[c]ontrary to the defendant’s contention, the 1999 order could not shorten the original

suspended sentence.” Leitao, 39 Va. App. at 438, 573 S.E.2d at 319 (emphasis added) (citing

Rule 1:1). See also Alsberry v. Commonwealth, 39 Va. App. 314, 318, 572 S.E.2d 522, 524

(2002) (“[T]he issue at a revocation proceeding is not what sentence to impose upon the

defendant for his prior criminal conviction, but whether to continue all or any portion of a

previously imposed and suspended sentence due to the defendant’s failure to abide by the terms


       6
        As this Court has explained, only the Governor has the authority to pardon or commute
sentences:

                      The Governor, moreover, has the exclusive constitutional
               power to “grant reprieves and pardons” after conviction. See Va.
               Const. art. V § 12. The Virginia judiciary “may not assume a
               power of clemency or pardon which is a unique function of
               executive power.” Moreau [v. Fuller], 276 Va. [127,] 136, 661
               S.E.2d [841,] 846 [(2008)]; see also Sorrells [v. United States], 287
               U.S. [435,] 449 [(1932)] (“Clemency is the function of the
               Executive.”).

Taylor v. Commonwealth, 58 Va. App. 435, 443, 710 S.E.2d 518, 522 (2011).
       7
          In addition, the implication of appellant’s argument is that, where the trial court issued a
final sentencing order, and subsequently revoked the originally suspended sentence for Count III
(without expressly ordering the re-suspension of Counts I, II, or III), then not only does the
suspended sentence for Count III disappear, but so do the suspended sentences for Counts I and
II – which were never even mentioned in the April 20, 2011 revocation order (Counts I and II
were only mentioned in that order’s summary of the prior history of the case). This is a
completely absurd result.
                                                 -9-
of his probation.”). Likewise, the trial court here could not shorten appellant’s original sentence

in the April 20, 2011 order, the December 5, 2011 order, or in any other order entered after the

trial court surrendered jurisdiction over the final sentencing order for the underlying offenses that

was entered on July 10, 2006. It is clear that “[w]hen a court revokes the suspension of

execution of sentence, ‘the original sentence shall be in full force and effect.’” Leitao, 39

Va. App. at 438, 573 S.E.2d at 319 (quoting Code § 19.2-306). Thus, we hold that the remaining

balance of appellant’s original sentence did not simply disappear when the trial court in the April

20, 2011 order revoked a portion of his suspended sentence and implicitly re-suspended the

remainder of the suspended sentence. 8

           The Trial Court Properly Interpreted its Order in Light of Controlling Law

       In addition, we consider the trial court’s interpretation of its April 20, 2011 order in light

of the well-settled principle of law that a “judge is presumed to know the law and to apply it

correctly in each case.” Groves v. Commonwealth, 50 Va. App. 57, 61-62, 646 S.E.2d 28, 30

(2007). Thus, we presume that Judge Devine was aware that the April 20, 2011 revocation order

“could not shorten the original suspended sentence.” Leitao, 39 Va. App. at 438, 573 S.E.2d at

319. We also presume that Judge Devine knew the procedure set forth in Code § 19.2-306(C),

and applied it, albeit implicitly, by re-suspending the remaining suspended sentence from the

original July 10, 2006 order in the April 20, 2011 revocation order.




       8
         To hold otherwise would undermine the rehabilitative goals behind the imposition of
suspended sentences (by letting some defendants escape accountability mechanisms like
supervised probation based on a clerical error) and, further, would make trial courts more
reluctant to impose suspended sentences. See Grant v. Commonwealth, 223 Va. 680, 684, 292
S.E.2d 348, 350 (1982); Briggs v. Commonwealth, 21 Va. App. 338, 344, 464 S.E.2d 512, 514
(1995) (both describing the “highly remedial” nature of Code § 19.2-306 and the fact that it
“should be liberally construed to provide trial courts a valuable tool for rehabilitation of
criminals”).

                                               - 10 -
       In support of this conclusion, we also note that the April 20, 2011 revocation order

clearly imposed a probationary period, and at that time there remained a great deal of unserved

time from the original sentence. This Court has explained that a probationary period is

meaningless without a suspended sentence available for imposition upon a violation of the terms

of probation. See Hartless v. Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738, 739 (1999)

(“[P]robation depends for enforceability upon the existence of a term of sentence suspension.”);

see also Leitao, 39 Va. App. at 438, 573 S.E.2d at 319 (“Probation was meaningless if no

sentence remained for the court to impose if the defendant violated the terms imposed.”). Under

this Court’s reasoning in Hartless and Leitao, the trial court’s decision to order a probationary

period would have been utterly meaningless if the trial court did not also intend to impose a

suspended sentence in the April 20, 2011 revocation order.

                                       III. CONCLUSION

       The trial court did not err when it entered the December 5, 2011 revocation order because

its earlier revocation order from April 20, 2011 simply could not have negated any of the original

suspended sentences from appellant’s underlying July 2006 convictions. Thus, with time

remaining to be served in appellant’s suspended sentences, the trial court did not abuse its

discretion when it entered the December 5, 2011 revocation order. Accordingly, we affirm the

trial court’s order entered on December 5, 2011, and remand for the limited purpose of

correcting the clerical mistake in that order. See supra n.2.

                                                                           Affirmed and remanded.




                                               - 11 -
