PRESENT:   All the Justices

KHALIQ JOSHUA BURRELL
                                                OPINION BY
v.   Record No. 111297                    JUSTICE WILLIAM C. MIMS
                                                March 2, 2012
COMMONWEALTH OF VIRGINIA

             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      David S. Schell, Judge

     In this appeal, we consider whether a criminal sentencing

order is void ab initio due to a provision stating that the

court will reduce the conviction from a felony to a misdemeanor

following the defendant’s incarceration and successful

completion of probation.

                 BACKGROUND AND PROCEEDINGS BELOW

     On May 18, 2009, a grand jury returned a bill of indictment

charging that Khaliq Joshua Burrell (“Burrell”) feloniously

committed rape in violation of Code § 18.2-61.    On September 21,

2009, Burrell and the Commonwealth entered into an Alford plea

agreement whereby Burrell agreed to plead guilty to the reduced

charge of attempted rape.     Under the agreement, the sentence to

be imposed was five years in the penitentiary with four years

suspended, and five years of active probation.    The agreement

stated: “The Commonwealth further agrees that at the end of the

five year probationary period, that if the defendant

successfully completes probation, that the charge will be

reduced to the misdemeanor of Sexual Battery.”    Paragraph 8 of
the agreement stated: “I understand that the Court may accept or

reject the agreement, and may defer its decision as to the

acceptance or rejection until there has been an opportunity to

consider the pre-sentence report and other evidence.”

     The matter then came before the circuit court.    Pursuant to

the agreement of the parties, the court amended the indictment

to attempted rape.   Burrell was arraigned and pled guilty to

that charge.   In a colloquy with Burrell, the court summarized

the terms of the plea agreement, including that the court could

either accept or reject the agreement and that if the court

rejected the agreement, Burrell would be given an opportunity to

withdraw his plea of guilty.   Following the Commonwealth’s

proffer of evidence, the circuit court accepted Burrell’s Alford

plea, finding him guilty of attempted rape.

     The court later sentenced Burrell in accordance with the

plea agreement and entered a sentencing order.   In the order,

the court sentenced Burrell to incarceration with the Virginia

Department of Corrections for the term of five years with four

years suspended, followed by five years of supervised probation.

The court further ordered pursuant to Code § 9.1-903 that

Burrell register with the Department of State Police Sex

Offender Registry upon his release from confinement.    The order

stated: “Upon successful completion of probation, the charge in

this case will be reduced to a misdemeanor, Sexual Battery.”

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     On March 29, 2010, Burrell’s probation and parole officer

filed a Major Violation Report.       The circuit court issued a

bench warrant ordering that Burrell show cause why the suspended

portion of his sentence should not be revoked.      Burrell then

filed motions to vacate the sentencing order as void ab initio

and to dismiss the charge of the probation violation.      He argued

that the circuit court did not have the power to render a

judgment in accordance with the plea agreement imposing a

sentence on the felony charge of attempted rape and thereafter

reducing the conviction to a misdemeanor more than 21 days

following entry of the sentencing order.

     The circuit court denied Burrell’s motions on three

grounds.   First, it ruled that it retained jurisdiction of the

case under Code § 19.2-303 because Burrell was not sent to the

Department of Corrections.    Second, the court ruled that the

sentencing order was not a final order as contemplated by Rule

1:1 because it did not dispose of the entire subject matter of

the case and left matters undone.      Third, it ruled that Burrell

“is not allowed to invite error by the use of a plea agreement

and use that error to overturn the sentencing order of the

court.”    Burrell timely noted his appeal.

                             DISCUSSION

     Burrell assigns error to the circuit court’s denial of his

motion to vacate and to each of the three rulings.      The parties

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agree that Burrell’s appeal presents questions of law which we

review de novo.   Commonwealth v. Morris, 281 Va. 70, 76, 705

S.E.2d 503, 505 (2011).

     We will first address the circuit court’s ruling that the

sentencing order was not a final order.    Burrell argues that the

sentencing order is a final order under Rule 1:1 because it

adjudicates guilt and imposes a sentence without expressly

retaining jurisdiction to reconsider the sentencing order.     The

Commonwealth argues that the sentencing order is not a final

order because the circuit court’s actions were not complete, as

it retained the jurisdiction to modify the charge.

     In general terms, we have explained that “a final judgment

is one which disposes of the entire action and leaves nothing to

be done except the ministerial superintendence of execution of

the judgment.”    Super Fresh Food Mkts. of Va., Inc. v. Ruffin,

263 Va. 555, 560, 561 S.E.2d 734, 737 (2002).   Furthermore,

“[t]he running of the twenty-one day time period prescribed by

Rule 1:1 may be interrupted only by the entry, within the

twenty-one day time period, of an order modifying, vacating, or

suspending the final judgment order.”     Id.

     In the context of sentencing orders, we have held that when

trial courts take motions to set aside the verdict under

advisement, such actions fail to affect the finality of

sentencing orders because “the trial court did not modify,

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vacate, or suspend the judgments.”     In re: Commonwealth of Va.

Dep’t of Corr., 222 Va. 454, 464, 281 S.E.2d 857, 863 (1981)

(internal quotation marks omitted).    We also have rejected the

argument that sentencing orders were not final appealable

orders, explaining that “[u]nder this theory, a trial court

conceivably could keep a motion under advisement for a

considerable period of time during which the incarcerated

defendant would have no appealable order to challenge” and that

“[w]e regard this position as unsound.”     Id. at 466, 281 S.E.2d

at 864.

     The sentencing order in this case adjudicated guilt,

imposed a sentence, remanded Burrell to the custody of the

sheriff, and required that Burrell register as a sex offender

upon his release from incarceration.    As such, we hold that it

was a final appealable order, and the circuit court erred in

ruling that it was not so.

     Burrell next assigns error to the circuit court’s ruling

that Code § 19.2-303 confers jurisdiction on the circuit court

to change the offense of conviction in the sentencing order

after the court has lost jurisdiction to modify the sentencing

order pursuant to Rule 1:1.   He argues that the statute

authorizes the circuit court to modify the period of

incarceration and not the offense of conviction.

     Code § 19.2-303 provides, in relevant part:

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          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 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. The court may place the person on
     probation for such time as the court shall
     determine.

By its plain terms, the statute does not authorize a circuit

court to reduce a conviction from a felony to a misdemeanor

after a defendant has served the active portion of a sentence.

Rather, it authorizes the court to “suspend or otherwise modify

the unserved portion of such a sentence.”     The circuit court

therefore erred in ruling that it retained jurisdiction to amend

the conviction pursuant to Code § 19.2-303 to modify the

sentencing order by reducing the felony charge to a misdemeanor.

     Having established that the sentencing order was a final

order and that the circuit court did not retain jurisdiction

pursuant to Code § 19.2-303, it is clear that the circuit court

did not have the authority to modify Burrell’s felony conviction

as stated in the sentencing order.     Rule 1:1 (“All final

judgments, orders, and decrees, irrespective of terms of court,

shall remain under the control of the trial court and subject to

be modified, vacated, or suspended for twenty-one days after the

date of entry, and no longer.”).


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     We now turn to Burrell’s assignment of error regarding the

circuit court’s denial of his motion to vacate.     Burrell argues

that under Virginia law, the sentencing order was void ab initio

because it purported to give the circuit court the power to

modify a conviction more than five years after the court lost

jurisdiction pursuant to Rule 1:1.

     Under Virginia law, a sentencing order is void ab initio if

“ ‘the character of the judgment was not such as the [C]ourt had

the power to render.’ ”    Rawls v. Commonwealth, 278 Va. 213, 221,

683 S.E.2d 544, 549 (2009) (quoting     Anthony v. Kasey, 83 Va.

338, 340, 5 S.E. 176, 177 (1887)) (alteration in original).       In

Rawls, the parties mistakenly believed that amendments to a

criminal statute were in effect “and consequently the jury was

incorrectly instructed that it could impose a specific term of

imprisonment of not more than 40 years for the murder

conviction.”     Id. at 215, 683 S.E.2d at 546.   The statutory

maximum actually was 20 years of incarceration.      Id.

     The jury returned a verdict of 25 years.     Id. at 216, 638

S.E.2d at 546.    We rejected the Commonwealth’s argument that a

reduced 20-year sentence would be valid.    We explained that

would require speculation regarding what would have happened if

the proper statutory limitations were observed.      Id. at 221, 683

S.E.2d at 549.    To ensure that “criminal defendants whose

punishments have been fixed in violation of the statutorily

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prescribed ranges are treated uniformly without any

speculation,” we adopted the rule that a sentence imposed in

violation of a prescribed statutory range of punishment is void

ab initio.   Id.

     In this case, the circuit court did not have the power to

render a judgment reducing Burrell’s conviction from a felony to

a misdemeanor more than five years after its entry of the

sentencing order.   Applying the rationale from Rawls, we decline

to engage in speculation as to what would have happened had the

parties and the court known that the court did not have the

power to render part of Burrell’s sentence.    Id.    We therefore

hold that the ultra vires provision in the sentencing order

results in the entire sentencing order being void ab initio.

     Finally, Burrell assigns error to the circuit court’s

ruling that, under the doctrine of invited error, he was barred

from seeking to vacate the sentencing order.   Burrell observes

that the circuit court’s ruling on invited error was conditioned

on its ruling that it retained jurisdiction under Code § 19.2-

303 and based on the non-finality of the order.      Burrell argues

that the doctrine of invited error is not properly applied in

the context of a motion to vacate an order as void ab initio.

In Collins v. Shepherd, 274 Va. 390, 649 S.E.2d 672 (2007) we

held: “An order that is void ab initio is a complete nullity

that may be impeached directly or collaterally by all persons,

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anywhere, at any time, or in any manner.”   Id. at 402, 649

S.E.2d at 678 (internal quotation marks omitted).   Because the

sentencing order in this case is void ab initio, the doctrine of

invited error does not bar Burrell’s motion to vacate that

order.

                            CONCLUSION

     Burrell asks, as he did below, that the Court vacate the

sentencing order.   This Court will grant the relief requested.

See CNH Am. LLC v. Smith, 281 Va. 60, 69, 704 S.E.2d 372, 376

(2011) (remanding “consistent with [appellant’s] requests for

relief”).   The circuit court’s judgment denying Burrell’s motion

to vacate the sentencing order will be reversed, the sentencing

order vacated, and the case remanded for sentencing.

                                            Reversed and remanded.




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