PRESENT: All the Justices

DONTE LAMAR JONES
                                              OPINION BY
v.   Record No. 131385                  JUSTICE CLEO E. POWELL
                                           October 31, 2014
COMMONWEALTH OF VIRGINIA

                 FROM THE CIRCUIT COURT OF YORK COUNTY
                      Richard Y. Atlee, Jr., Judge

        This appeal arises from a motion to vacate his sentence

filed by Donte Lamar Jones (“Jones”) twelve years after he pled

guilty to capital murder in exchange for a sentence of life

without the possibility of parole.     Jones argues that the

Supreme Court of the United States’ decision in Miller v.

Alabama, 132 S.Ct. 2455 (2012), applies retroactively to his

case.     Miller held that the Eighth Amendment forbids a

sentencing scheme that mandates life imprisonment without the

possibility of parole for juvenile offenders without affording

the decision maker the opportunity to consider mitigating

circumstances.     Id. at 2460.   Therefore, Jones contends that he

is entitled to a new sentencing proceeding because he was

seventeen years old when he committed the murder.

        We hold that because the trial court has the ability under

Code § 19.2-303 to suspend part or all of the life sentence

imposed for a Class 1 felony conviction, the sentencing scheme

applicable to Jones’ conviction was not a mandatory life without

the possibility of parole scheme.     Therefore, even if Miller
applied retroactively, it would not apply to the Virginia

sentencing statutes relevant here.     Thus, the circuit court

lacked jurisdiction to grant Jones’ motion.

                      I.   FACTS AND PROCEEDINGS

     In 2000, Jones was charged with capital murder, five counts

of use of a firearm in the commission of a felony, two counts of

abduction, armed robbery, malicious wounding, and wearing a mask

in a prohibited place for his role in an armed robbery at a

convenience store in which a store clerk was murdered.         He was

seventeen years old at the time. On June 5, 2001, Jones agreed

to plead guilty to all charges in exchange for being sentenced

to life without the possibility of parole on the capital murder

charge.    In so doing, he also “waive[d] any and all rights of

appeal with regard to any substantive or procedural issue

involved in this prosecution.”    He was immediately sentenced to

life for the capital murder conviction.    Because there was no

agreement as to the sentence for the remaining charges, a

presentence report was prepared for the other charges, and a

sentencing hearing was set for a later date.       Jones was

ultimately sentenced to life plus 68 years on the remaining

charges.

     On June 5, 2013, Jones, proceeding pro se, filed a motion

to vacate his sentence relying upon the Supreme Court’s decision



                                   2
in Miller.       He argued that Virginia’s mandatory sentencing

scheme for capital murder, as applied to juveniles, is

unconstitutional because it does not consider mitigating

factors.      Jones also argued that Code §§ 18.2-31 and -10 are

unconstitutional because they do not allow for any other

sentence for a juvenile charged with capital murder other than

mandatory life without the possibility of parole.      Finally, he

argued that Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544

(2009), allows a circuit court to set aside a void or unlawful

sentence at any time and that his sentence is void ab initio

because it is in excess of what is legal and should be vacated.

Alternatively, Jones asserted that pursuant to Code § 19.2-303,

a circuit court may suspend all or part of a sentence at any

time.       Jones asked the circuit court to so do.

        On June 13, 2013, the circuit court denied Jones’ motion

without a hearing because “there [was] nothing new in mitigation

of the offense.”      This appeal follows.

                               II.   ANALYSIS

        In its 2012 decision in Miller, the Supreme Court held that

sentencing schemes that “mandate life without parole for those

under the age of 18 at the time of their crimes” such as

Alabama’s Code § 15-22-50 1 and Arkansas’ Code § 5-4-104(e)(1)(A)


        1
       The Supreme Court in Miller referred to the murder and
capital murder provisions of the Alabama Code that provided for


                                      3
at issue in that case, “violate[] the Eighth Amendment’s

prohibition on ‘cruel and unusual punishments.’”    132 S.Ct. at

2460.    Jones argues that Miller applies retroactively to his

case because he received a mandatory minimum sentence of life

without the possibility of parole and, therefore, under Miller,

he is entitled to a new sentencing proceeding in which

individualized sentencing factors are considered.    We disagree.

        Jones was sentenced in 2001 and, therefore, the circuit

court would only have jurisdiction to grant his motion to vacate

his sentence if his original sentencing order was void ab

initio.    Amin v. County of Henrico, 286 Va. 231, 235, 749 S.E.2d

169, 171 (2013) (holding that “Rule 1:1, which limits the

jurisdiction of a court to twenty-one days after entry of the

final order, does not apply to an order which is void ab

initio.”).

        At the time that Jones murdered a convenience store clerk

during a robbery, a person who was over the age of sixteen and

convicted of capital murder, a Class 1 felony, could be punished

by death or “imprisonment for life.”    Code § 18.2-10 (Cum. Supp.

2000).    He now argues that his sentence is invalid because




“punishment of life without parole, “ Ala. Code §§ 13A-5-40(9),
13A-6-2(c), which are cross-referenced in Ala. Code § 15-22-50,
discussed in the present opinion.



                                   4
Virginia’s sentencing scheme is mandatory and therefore is

unconstitutional.

     To decide whether Jones’ sentence is void, we must first

determine whether Virginia’s sentencing scheme for capital

murder imposed a mandatory minimum sentence of life without the

possibility of parole.   We conclude that it did not because the

trial judge had the authority under Code § 19.2-303 to suspend

the sentence.   In 2000, the relevant portion of Code § 19.2-303

provided, as it does now, that “[a]fter conviction, whether with

or without jury, the court may suspend imposition of sentence or

suspend the sentence in whole or part.”   Nothing restricted its

application to a certain type of sentence.   Unlike the statutes

in Alabama and Arkansas found unconstitutional in Miller, there

was no language limiting the power of the court to suspend a

portion of the sentence.

     Only where the General Assembly has prescribed a mandatory

minimum sentence imposing an inflexible penalty has it “divested

trial judges of all discretion respecting punishment.”   In re:

Commonwealth, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985). 2   The


     2
       See Code §§ 18.2-36.1(B) (Cum. Supp. 2000) (imposing a one
year mandatory minimum sentence for a person convicted of
aggravated involuntary manslaughter); 18.2-51.1 (Cum. Supp.
2000) (establishing mandatory minimum penalties for maliciously
wounding a law enforcement officer or firefighter); 18.2-57
(Cum. Supp. 2000) (setting mandatory minimum sentences for
certain types of assaults and batteries); 18.2-121 (Cum. Supp.
2000) (imposing a mandatory minimum sentence of one year for a


                                 5
absence of the phrase “mandatory minimum” in Code § 18.2-10

underscores the flexibility afforded a trial court in sentencing

pursuant to this statute.

     Indeed, in 2004, the General Assembly codified this

principle in Code § 18.2-12.1, which states that “‘[m]andatory

minimum’ wherever it appears in this Code means, for purposes of

imposing punishment upon a person convicted of a crime, that the

court shall impose the entire term of confinement, the full

amount of the fine and the complete requirement of community

service prescribed by law.   The court shall not suspend in full

or in part any punishment described as mandatory minimum

punishment.”   See 2004 Acts ch. 461.   This action codified the

settled interpretation of the phrase “mandatory minimum.”

     Nothing about the punishment for a Class 1 felony requires

a mandatory minimum sentence under Virginia law.   Cf., Ala. Code



person convicted of entering another’s property with the intent
to cause damage because of the owner’s or occupant’s “race,
religious conviction, color or national origin”); 18.2-154 (1996
Repl. Vol.) (requiring a mandatory minimum sentence for shooting
a firearm at certain types of vehicles); 18.2-248 (Cum. Supp.
2000) (mandating mandatory minimum sentences for certain
repeated drug distribution offenses); 18.2-270 (Cum. Supp. 2000)
(levying mandatory minimum sentences for repeated driving while
intoxicated convictions); 18.2-308.2:2 (Cum. Supp. 2000)
(enacting mandatory minimum sentences for those who thwart the
criminal background check for firearms in order to provide the
firearms to those who may not legally possess firearms); and
46.2-341.28 (1998 Repl. Vol.) (setting a mandatory minimum
sentence for a conviction for driving a commercial motor vehicle
while intoxicated).



                                 6
§ 15-22-50 (“The court shall have no power to suspend the

execution of sentence imposed upon any person who has been found

guilty and whose punishment is fixed at death or imprisonment in

the penitentiary for more than 15 years.”); Ark. Code Ann. § 5-

4-104(e)(1)(A) (“The court shall not suspend imposition of

sentence as to a term of imprisonment nor place the defendant on

probation for [capital murder].”). 3   Code § 19.2-303 applies to

Virginia’s capital sentencing scheme, granting judges the

authority to suspend part or all of the offender’s sentence at

the trial court’s discretion.

     Thus, when the trial court sentenced Jones, it had the

authority to suspend part or all of Jones’ life sentence.    Code

§ 19.2-303 (2000 Repl. Vol.).   Indeed, Jones recognized that a

circuit court continues to have the authority to suspend part or

all of a sentence pursuant to Code § 19.2-303, as he asked the

circuit court to so do in his motion to vacate. 4   Moreover, his


     3
       It is telling that the General Assembly has subsequently
amended certain statutes to include a mandatory minimum sentence
of life for certain crimes. See Code § 18.2-61(B)(2)(2012)
(prescribing a mandatory minimum sentence of life imprisonment
for certain types of rape). The General Assembly could have
amended Code § 18.2-10 in a similar fashion. The fact that it
did not underscores the point that Code § 18.2-10 does not
impose a mandatory minimum sentence.
     4
       Jones’ request, however, was not timely as Jones had
already been transferred to the Department of Corrections at the
time of his request. Code § 19.2-303 (stating “If a person has
been sentenced for a felony to the Department of Corrections but
has not actually been transferred to a receiving unit of the


                                 7
conviction and sentencing order acknowledged the authority of

the trial court to suspend a portion of his sentence for capital

murder, as it specifically stated that he was sentenced to life

and no portion of that sentence was suspended.

     Because a Class 1 felony does not impose a mandatory

minimum sentence under Virginia law, the circuit court had, at

the time it sentenced Jones, the authority to suspend part or

all of his life sentence.    Therefore, Miller is not applicable

to the statute at issue here because one convicted of capital

murder does not receive a mandatory sentence of life without the

possibility of parole. 5

                           III.   CONCLUSION

     We hold that because a Class 1 felony does not impose a

mandatory minimum sentence under Virginia law, Miller is not

applicable even if it is to be applied retroactively.    Thus,

Jones’ sentence was not void ab initio, and the trial court had

no jurisdiction to grant the motion.     Therefore, we find no

reversible error in the trial court’s denial of Jones’ motion to



Department, 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, suspend or otherwise modify
the unserved portion of such a sentence.”).
     5
       Because Virginia’s capital punishment sentencing scheme
does not include a mandatory minimum sentence, Miller could
never apply in Virginia and, therefore, we need not address
Jones’ other arguments as to the retroactivity of Miller.


                                   8
vacate his sentence and will affirm the trial court’s judgment

denying the motion.

                                                        Affirmed.




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