                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Decker, Judges Humphreys and Russell
              Argued at Leesburg, Virginia


              MAURICE LANCE DUHART
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1672-18-4                                  JUDGE ROBERT J. HUMPHREYS
                                                                               NOVEMBER 12, 2019
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                               Richard E. Gardiner, Judge

                               Melissa Hasanbelliu, Assistant Public Defender, for appellant.

                               Matthew P. Dullaghan, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     On January 10, 2017, appellant Maurice Lance Duhart (“Duhart”) pleaded guilty to three

              counts of hit and run, in violation of Code § 46.2-894; unauthorized use of a vehicle, in violation

              of Code § 18.2-102; and driving on a suspended license, in violation of Code § 46.2-301. The

              Circuit Court of Fairfax County (“circuit court”) convicted Duhart of all charges. On April 7,

              2017, the circuit court sentenced Duhart to sixteen years of incarceration, with six years

              suspended.

                     On appeal, Duhart assigns the following three errors:

                               I. The trial court erred when it denied Mr. Duhart’s Motion for
                                  Reconsideration of Sentence for lack of jurisdiction.

                               II. Prior decisions of Virginia Courts upholding the denial of
                                   jurisdiction for Motions to Reconsider after a transfer to the
                                   Department of Corrections, including Stokes v.
                                   Commonwealth, 61 Va. App. 388, 736 S.E.2d 330 (2013),
                                   Holland v. Commonwealth, 62 Va. App. 445, 749 S.E.2d 206
                                   (2013), and Coe v. Commonwealth, Record No. 3293-02-2,

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                  2004 Va. App. LEXIS 181 (Mar. 2, 2004) are wrongly decided
                  and must be overturned or modified.

               III. The trial court erred when it failed to rule on the merits of
                    Mr. Duhart’s Motion for Reconsideration of Sentence.

                                       I. BACKGROUND

       On appeal, the facts concerning Duhart’s guilty pleas to multiple driving offenses are not

at issue. Duhart only alleges error related to his sentencing. On April 7, 2017, the circuit court

held a sentencing hearing during which it agreed to continue the issue of restitution until May 5,

2017. In sentencing Duhart, the circuit court explained that it was going to “depart above the

guidelines” because of “the heinousness of this offense.” On April 17, 2017, the circuit court

entered its sentencing order. The hearing on the issue of restitution was continued multiple

times, and restitution was eventually determined on August 18, 2017. That same day, the circuit

court also entered an order prohibiting Duhart from being transferred to the custody of the

Department of Corrections from the Fairfax County Adult Detention Center while his motion to

reconsider was pending.

       On November 17, 2017, Duhart filed a motion for reconsideration of sentence, asking for

a modification or suspension under Code § 19.2-303. Duhart argued that he had not been

transferred to the Department of Corrections and that there were mitigating circumstances

present, including his eligibility for the Men’s Recovery Program. He requested that the circuit

court suspend a period of his active sentence or that the case be reviewed in approximately six

months to allow him to complete the Men’s Recovery Program while at the Adult Detention

Center. The matter was scheduled for June 1, 2018, but Duhart requested a continuance so that

he could complete the Men’s Recovery Program. The circuit court continued the case to August

3, 2018.




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         However, on January 29, 2018, Duhart was transferred from the Fairfax County Adult

Detention Center to Nottoway Correctional Center, despite the circuit court’s prior order that

Duhart remain at Fairfax County Adult Detention Center. According to the Department of

Corrections (“DOC”), Nottoway Correctional Center is “a DOC reception unit, where offenders

newly received into DOC institutions undergo thorough screening, assessment, and orientation

regarding procedures, rules, programs, and services.” On March 3, 2018, “Duhart’s initial

classification was completed and approved.” On March 6, 2018, DOC cancelled Duhart’s initial

assignments and scheduled him to be returned to jail after Duhart’s counsel provided notice of

the pending case review. DOC transferred Duhart back to the Fairfax County Adult Detention

Center on March 14, 2018.

         On August 3, 2018, after hearing Duhart’s argument on his November 17, 2017 motion to

reconsider, the circuit court asked the parties to address whether it still had jurisdiction. Duhart

argued that the Nottoway Correctional Center was a “sorting facility” and that Duhart was not

transferred “to the actual facility that he will be in.” Therefore, the circuit court still had

jurisdiction. The circuit court requested additional briefing on the jurisdictional issue and

continued the case until October 5, 2018. Duhart subsequently filed a memorandum in support

of his motion for reconsideration arguing that a “reception unit” was not the same as a “receiving

unit.”

         On October 5, 2018, the circuit court again heard argument on the motion for

reconsideration. The circuit court ruled, “I’m going to deny the motion to reconsider on the

ground that I don’t believe at this time that the [c]ourt has jurisdiction under Stokes [v.

Commonwealth, 61 Va. App. 388 (2013),] which is a reported case of the Court of Appeals and

therefore one that binds this [c]ourt.” The circuit court clarified that it was only ruling on the

jurisdictional issue, not whether there were circumstances in mitigation. Without jurisdiction,

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the circuit court found that ruling on the merits would be “an advisory opinion.” The circuit

court entered an order denying the motion. This appeal followed.

                                          II. ANALYSIS

                                      A. Standard of Review

       This Court reviews issues regarding the circuit court’s jurisdiction and issues of statutory

interpretation de novo. See Holland v. Commonwealth, 62 Va. App. 445, 451 (2013). When

construing a statute, “[this Court] must presume that the General Assembly chose, with care, the

words that appear in a statute, and must apply the statute in a manner faithful to that choice.”

Jones v. Commonwealth, 296 Va. 412, 415 (2018) (quoting Johnson v. Commonwealth, 292 Va.

738, 742 (2016)). “When the language of a statute is plain and unambiguous, we are bound by

the plain meaning of that statutory language.” Id. (quoting Alston v. Commonwealth, 274 Va.

759, 769 (2007)).

                B. Denial of Motion for Reconsideration for Lack of Jurisdiction

       Duhart first argues that the circuit court erred in finding that it lacked jurisdiction to

decide his motion for reconsideration because the circuit court had jurisdiction under Code

§ 19.2-303. Code § 19.2-303 is one of the limited exceptions to Virginia Supreme Court Rule

1:1. See Holland, 62 Va. App. at 452. Under 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.” Rule 1:1(a). “Thus, once the twenty-one-day time period following the entry of a final

sentencing order has run without modification, vacation, or suspension of that order, the trial

court loses jurisdiction to disturb the order, unless an exception to Rule 1:1 applies.” Patterson

v. Commonwealth, 39 Va. App. 610, 614 (2003). The exception found in Code § 19.2-303

provides,

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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.

       Here, it is undisputed that more than twenty-one days had passed from the time the circuit

court sentenced Duhart until he filed his motion for reconsideration. Therefore, the relevant

issue is whether Duhart’s transfer to Nottoway Correctional Center on January 29, 2018,

extinguished the circuit court’s jurisdiction under Code § 19.2-303.

       Duhart argues that he was never in DOC custody within the meaning of the statute. He

argues that in order to defeat jurisdiction, the statute requires him to have been transferred to a

“receiving unit,” but the circuit court retained jurisdiction because he was transferred to a

“reception unit” of the Department. Duhart further argues that the “reception unit” at Nottoway

Correctional Center was used for classification. Therefore, “[b]y cancelling his classification,

the Department did not actually transfer Mr. Duhart to his final destination, or the location he

would be received to serve his sentence.”

       The phrase “receiving unit” is not defined in the Code of Virginia. “Because ‘[a] statute

is not to be construed by singling out a particular phrase,’ we must also consider the disputed

portion in context.” JSR Mech., Inc. v. Aireco Supply, Inc., 291 Va. 377, 384 (2016) (alteration

in original) (quoting Eberhardt v. Fairfax Cty. Emps.’ Ret. Sys. Bd. of Trs., 283 Va. 190, 195

(2012)). “[S]tatutes are not to be considered as isolated fragments of law, but as a whole, or as

parts of a great connected, homogenous system, or a single and complete statutory arrangement.”

Id. (quoting Prillaman v. Commonwealth, 199 Va. 401, 405 (1957)).

       In construing the phrase “receiving unit,” Code § 53.1-20 is instructive. It states in

relevant part, “Persons convicted of felonies committed on or after January 1, 1995, and

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sentenced to the Department . . . shall be placed in the custody of the Department and received

by the Director into the state corrections system within sixty days . . . .” Code § 53.1-20(B)

(emphasis added). Subsection E states,

                Felons committed to the custody of the Department for a new
                felony offense shall be received by the Director into the state
                corrections system in accordance with the provisions of this
                section without any delay for resolution of (i) issues of alleged
                parole violations set for hearing before the Parole Board or (ii) any
                other pending parole-related administrative matter.

Code § 53.1-20(E) (emphasis added). When read in conjunction with Code § 19.2-303, it

appears that a “receiving unit” is merely a generic term for the facility where a person is first

“received” into DOC custody. It does not refer to the specific facility where a person is assigned

to serve his or her sentence, as Duhart suggests.

        Duhart’s argument misconstrues the statute’s plain meaning and is inconsistent with this

Court’s interpretive caselaw. Duhart’s proposed interpretation unnaturally isolates the phrase

“receiving unit” from the context of the entire statute. Although the first clause of Code

§ 19.2-303 does use the phrase “receiving unit,” the second clause refers to DOC generally,

stating, “before the person is transferred to the Department.” The statute, taken as a whole,

simply refers to a person’s transfer into DOC custody. The phrases “transferred to a receiving

unit of the Department” and “any time before the person is transferred to the Department” are

simply alternative ways of expressing the concept of DOC custody. The statute, in its entirety,

expresses clear legislative intent that the operative point in time for the circuit court to lose

jurisdiction over a case where a felon has been sentenced to prison is when a defendant begins

serving their sentence under the supervision of the Department of Corrections,1 which formally


        1
         See Holland, 62 Va. App. at 449 (finding that the circuit court’s jurisdiction was
terminated “upon Holland’s transfer to the custody of the Virginia Department of Corrections”
(emphasis added)); see also Stokes, 61 Va. App. at 393 (“The burden is on the appellant, as the
moving party, to prove that the trial court had jurisdiction to hear the matter by showing . . . that
                                                 -6-
occurs when the person initially enters any DOC facility. Further, this Court has never

interpreted “receiving unit” as requiring a finding that a defendant be transferred to a specific

facility within DOC.2

       In this case, Duhart was transferred to Nottoway Correctional Center, where the record

reflects that “offenders newly received into DOC institutions undergo thorough screening,

assessment, and orientation regarding procedures, rules, programs, and services.” Nottoway

Correctional Center is clearly a “receiving unit” as contemplated by the statute. Duhart was

transferred into DOC custody upon his arrival to Nottoway Correctional Center, thereby ending

the circuit court’s active jurisdiction under Code § 19.2-303.

       Duhart also argues that “the location of the defendant at the time of the hearing is a

significant factor the court should consider.” However, it is immaterial that Duhart was

transferred back to Fairfax County Adult Detention Center, where he was located at the time of

the circuit court’s August and October 2018 hearings. “When read in conjunction with Rule 1:1,

Code § 19.2-303 establishes an absolute event, i.e., a transfer to the Department of Corrections,

when a trial court can no longer modify a sentence.” Stokes, 61 Va. App. at 394 (emphasis



the defendant had not been transferred to the custody of the Department of Corrections.”
(emphasis added)); see also Harris v. Commonwealth, 57 Va. App. 205, 212 (2010) (stating the
burden to show “that the defendant had not been transferred to the custody of the Department of
Corrections” (emphasis added)); see also Neely v. Commonwealth, 44 Va. App. 239, 240 (2004)
(holding that the circuit court had jurisdiction under Code § 19.2-303 because “the evidence did
not establish that the defendant had been transferred to the custody of the Virginia Department of
Corrections” (emphasis added)), aff’d, 271 Va. 1 (2006).
       2
          See Stokes, 61 Va. App. at 394 (“When read in conjunction with Rule 1:1, Code
§ 19.2-303 establishes an absolute event, i.e., a transfer to the Department of Corrections, when
a trial court can no longer modify a sentence.” (emphasis added)); see also Wilson v.
Commonwealth, 54 Va. App. 631, 640 (2009) (finding that it was error for the circuit court to
find that it did not have jurisdiction when the defendant had “not yet transferred to the
Department of Corrections” (emphasis added)); see also Esparza v. Commonwealth, 29 Va. App.
600, 605 (1999) (“We hold that Code § 19.2-303 reflects the legislature’s intent to provide for
review and suspension of sentences imposed for all felony convictions provided the defendant
has not been sent to the Department of Corrections.” (emphasis added)).
                                                 -7-
added). In other words, once Duhart was transferred into DOC custody, by transfer to Nottoway

Correctional Center, the circuit court lost jurisdiction absolutely. Any subsequent temporary

transfer back to Fairfax County Adult Detention Center does not serve to reinstate the circuit

court’s jurisdiction.

        Because more than twenty-one days from the circuit court’s entry of judgment had

elapsed, and Duhart’s transfer to DOC custody defeated exercise of the circuit court’s

jurisdiction under the statutory exception found in Code § 19.2-303, the circuit court did not err

in holding that it lacked jurisdiction to consider Duhart’s motion.

                         C. Overruling or Modifying Existing Precedent

        Although Duhart invites this Court to overturn or modify our precedent affecting his first

assignment of error, he acknowledges that a three-judge panel lacks the authority to do so under

the interpanel accord doctrine. See Towler v. Commonwealth, 59 Va. App. 284, 293 (2011)

(explaining that a decision by a panel of the Court “cannot be overruled except by the Court of

Appeals sitting en banc or by the Virginia Supreme Court” (quoting Clinchfield Coal Co. v.

Reed, 40 Va. App. 69, 73 (2003))). Instead, Duhart presents the argument to “preserve his

ability to raise the issue before the Court of Appeals sitting en banc and/or the Supreme Court of

Virginia.” Consequently, while noting his position, we hold that the circuit court did not err in

relying on clear precedent from this Court.

                                 D. Failing to Rule on the Merits

        “[A] court ‘always has jurisdiction to determine its own jurisdiction.’” Holland, 62

Va. App. at 454 (quoting Lewis v. C.J. Langenfelder & Son Jr., Inc., 266 Va. 513, 516 (2003)).

However, it is error for a circuit court to address the merits of a motion when it erroneously

concludes that it has jurisdiction to address it. See id. Here, Duhart acknowledges that a circuit

court cannot rule on the merits when it lacks jurisdiction. However, he argues that under Rule

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5A:12(c)(1), the circuit court erred by not making a ruling. This argument is without merit.

Rule 5A:12(c)(1) relates only to the requirements for assignments of error in a petition for

appeal. See 5A:12(c)(1) (“If the error relates to failure of the tribunal or court below to rule on

any issue, error must be assigned to such failure to rule, providing an exact reference to the

page(s) of the record where the issue was preserved in the tribunal below, and specifying the

opportunity that was provided to the tribunal or court to rule on the issue(s).”).

       Because, as stated in subsection B, the circuit court lost jurisdiction, the circuit court

properly refused to rule on the merits of the motion for reconsideration.

       For these reasons, the judgment below is affirmed.

                                                                                            Affirmed.




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