                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Felton
Argued at Chesapeake, Virginia


ATIF CHARLES
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0616-03-1                                   JUDGE WALTER S. FELTON, JR.
                                                                     JULY 20, 2004
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                               Von L. Piersall, Jr., Judge

                 Felipita Athanas, Appellate Defender (Public Defender Commission,
                 on briefs), for appellant.

                 (Jerry W. Kilgore, Attorney General; Leah A. Darron, Assistant
                 Attorney General, on brief), for appellee. Appellee submitting on
                 brief.


       Atif Charles (Charles) appeals an order of the trial court revoking his previously suspended

sentence and imposing a period of incarceration which he asserts impermissibly exceeds the

sentence originally imposed. Specifically, he contends that the trial court erred in not giving him

credit toward his sentence for five months he spent in the Department of Corrections successfully

completing the Detention Center Incarceration Program. Finding no error, we affirm the trial court.

                                          BACKGROUND

       The facts governing this appeal are not in dispute. Charles was convicted in October 1997

of possession of heroin with the intent to distribute. He was sentenced to serve five years in prison,

with four years suspended. On release from incarceration after serving the active sentence of one




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
year, Charles was placed on probation. In August 2000, the trial court found that Charles had

violated the terms of his probation and revoked his four-year suspended sentence. It then

resuspended that sentence on the specific condition that Charles enter and complete the Detention

Center Incarceration Program. See Code § 19.2-316.2.

        Charles entered the program on December 3, 2001, and successfully completed it on April

26, 2002. On his release from the program, he was placed on intensive supervised probation for six

months, followed by one year of supervised probation.

        On February 11, 2003, the trial court found that Charles had again violated the terms of his

probation, revoked his previously suspended sentence, and sentenced him to serve the remaining

four years of the sentence originally imposed.

                                               ANALYSIS

        On appeal, Charles contends for the first time that the trial court erred in failing to credit him

for the time he spent in the Detention Center Incarceration Program.

                                            A. RULE 5A:18

        The Commonwealth argues that because Charles failed to raise this specific claim at trial,

he is barred by Rule 5A:18 from raising it for the first time on appeal. Rule 5A:18 provides that

“[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was

stated together with the grounds therefor at the time of the ruling.” Charles concedes he did not

present this argument to the trial court. Accordingly, his appeal is procedurally barred by

Rule 5A:18, unless he can show “good cause” for failing to raise the issue at trial, or that the

“ends of justice” require our review.

        Charles does not argue on appeal that there is “good cause” for his failure to raise the

issue in the trial court. He argues, however, that the record shows that an “ends of justice”

exception should apply to permit our review because the trial court’s ruling, in effect, increased

                                                   -2-
his sentence beyond the five-year penitentiary sentence originally imposed, after that sentence

had become final.1 See Robertson v. Superintendent of the Wise Correctional Unit, 248 Va. 232,

236, 445 S.E.2d 116, 118 (1994) (noting that Code § 19.2-306 does not give a court “authority to

lengthen the period of incarceration” once sentence imposed on the underlying charge becomes

final). Because he concedes that he made no objection to the sentence imposed at trial, Charles

can prevail on this appeal only if the ends of justice exception applies. If the sentence imposed

by the trial court on revocation exceeds the sentence originally imposed, the excessive portion is

invalid and objection can be raised at any time. Deagle v. Commonwealth, 214 Va. 304, 305,

199 S.E.2d 509, 510-11 (1973).

       In order to find that a miscarriage of justice has occurred, we must conclude that the

sentence imposed by the trial court was “clear error.” See Tart v. Commonwealth, 17 Va. App.

384, 391, 437 S.E.2d 219, 223 (1993) (finding that the “ends of justice” provision requires

consideration of whether “the record affirmatively shows [clear error or] that a miscarriage of

justice has occurred” (citations omitted)).

       Stated simply, Charles contends that the trial court’s sentencing order imposing a term of

four years imprisonment was void because the sentence imposed was in excess of the sentence

originally imposed and which had become final. He argues that the time he spent in the detention

center program was a period of incarceration for which he was entitled to credit when the trial court

imposed the remaining sentence of four years imprisonment. Where the sentence imposed is in

excess of that prescribed by law, that part of the sentence which is excessive is invalid. Crutchfield

v. Commonwealth, 187 Va. 291, 297, 46 S.E.2d 340, 343 (1948). A sentence in excess of one

prescribed by law is not void ab initio because of the excess, but is good insofar as the power of the




       1
           Rule 1:1 (Final judgment may not be modified after twenty-one days of entry.).
                                               -3-
court extends, and is invalid only as to the excess. Royster v. Smith, 195 Va. 228, 236, 77 S.E.2d

855, 859 (1953).

        Here, we must determine whether the time Charles spent in completing the detention center

program was part of his probation imposed as a condition of his receiving a suspended sentence of

imprisonment, or whether it was his serving of a portion of his sentence of imprisonment.

                                 B. CREDIT FOR TIME SERVED

        Code §§ 19.2-303 and 19.2-306 confer upon trial courts wide latitude and broad

discretion in suspending sentences and in granting probation. See Deal v. Commonwealth, 15

Va. App. 157, 160, 421 S.E.2d 897, 899 (1992); Davis v. Commonwealth, 12 Va. App. 81, 86,

402 S.E.2d 684, 687 (1991). This Court has stated that: “‘[T]he probation [and suspension]

statutes are highly remedial and should be liberally construed to provide trial courts a valuable

tool for rehabilitation of criminals.’” Briggs v. Commonwealth, 21 Va. App. 338, 344, 464

S.E.2d 512, 514 (1995) (quoting Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348,

350 (1982) (citations omitted)).

        Code § 19.2-303 provides that “the court may . . . suspend the sentence in whole or in

part and in addition may place the accused on probation under such conditions as the court shall

determine.” “When a defendant fails to comply with the terms and conditions of a suspended

sentence, the trial court has the power to revoke the suspension of the sentence in whole or in

part.” Alsberry v. Commonwealth, 39 Va. App. 314, 320, 572 S.E.2d 522, 525 (2002) (citing

Russnak v. Commonwealth, 10 Va. App. 317, 321, 392 S.E.2d 491, 493 (1990)); see Code

§ 19.2-306(C) (permitting the trial court to revoke a suspended sentence and “pronounce

whatever sentence might have been originally imposed or . . . 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”).

                                                -4-
        “The only limitation placed on the trial court’s discretion in determining what conditions

to impose [under Code § 19.2-303] is that any condition be ‘reasonable.’” Nuckoles v.

Commonwealth, 12 Va. App. 1083, 1086, 407 S.E.2d 355, 356 (1991) (citations omitted). In

Nuckoles, this Court held that a trial court has authority to impose a twelve-month period of

confinement in jail as a condition of suspending execution of a sentence of imprisonment. Id. at

1084-85, 407 S.E.2d at 355.

        In order to provide the courts with additional remedial sentencing measures for the

rehabilitation of criminals, the General Assembly enacted various alternatives to imprisonment to

further this goal, including the Boot Camp Incarceration Program, Code §§ 53.1-67.1 and

19.2-316.1, the Diversion Center Incarceration Program, Code §§ 53.1-67.7 and 19.2-316.3, and

the Detention Center Incarceration Program, Code §§ 53.1-67.8 and 19.2-316.2.

        Code § 19.2-316.2(A) provides that a trial court may commit certain nonviolent felons to

a detention center program. The individuals committed to this program are those who otherwise

would have been sentenced to imprisonment for committing a nonviolent felony (as defined in

Code § 19.2-316.1), or who have been previously incarcerated for a nonviolent felony but

otherwise meet criteria for eligibility.

        The detention center program, which operates as part of the Department of Corrections,

provides “a highly structured, short-term period of incarceration for individuals committed to the

Department under the provisions of § 19.2-316.2.” Code § 53.1-67.8. The detention center

program “include[s] components for military-style management and supervision, physical labor

in organized public works projects, counseling, remedial education, substance abuse testing and

treatment, and community re-entry services.” Id. Providing an alternative to active sentence of

imprisonment, the program offers the trial court a means to assist a defendant who has been




                                               -5-
determined “will benefit from the program and is capable of returning to society as a productive

citizen following successful completion of the program.” Code § 19.2-316.2(A)(3).

       Code § 19.2-316.2 is silent as to whether the trial court is required to credit the time spent

in the program toward a defendant’s service of a sentence of imprisonment when the previously

suspended sentence is revoked. Charles contends that absent any language to the contrary in the

statute, the trial court was required to give credit toward his sentence of imprisonment for the

time he served in the program.

       “In construing statutes, courts are charged with ascertaining and giving effect to the intent

of the legislature.” Crown Cent. Petroleum Corp. v. Hill, 254 Va. 88, 91, 488 S.E.2d 345, 346

(1997) (citing City of Winchester v. American Woodmark Corp., 250 Va. 451, 457, 464 S.E.2d

148, 152 (1995)). “Although [ambiguous] penal laws are to be construed strictly [against the

Commonwealth], they ‘ought not to be construed so strictly as to defeat the obvious intent of the

legislature.’” Willis v. Commonwealth, 10 Va. App. 430, 441, 393 S.E.2d 405, 411 (1990)

(citation omitted).

               Legislative intent is to be determined by the words in the statute.
               See Marsh v. City of Richmond, 234 Va. 4, 11, 360 S.E.2d 163,
               167 (1987). Absent ambiguity, “the manifest intent of the
               legislature clearly expressed in its enactments should not be
               judicially thwarted under the guise of statutory construction.”
               Cregger v. Commonwealth, 25 Va. App. 87, 90, 486 S.E.2d 554,
               555 (1997).

Herrel v. Commonwealth, 28 Va. App. 579, 584, 507 S.E.2d 633, 636 (1998).

       Code § 19.2-316.2 neither expressly requires nor expressly prohibits a trial court giving

credit toward a sentence of incarceration for time a person spends in the detention center

program. Clearly, the General Assembly created the program to provide a probationary

alternative to an active sentence of imprisonment. The statute requires the probationer to

complete the program as a specific condition of receiving a suspended sentence. Code


                                               -6-
§ 19.2-316.2(A)(3) (offering the program to a defendant who “would otherwise be committed to

the Department [of Corrections]”). Stated differently, the trial court provides an alternative for

the convicted person to complete the detention center program instead of serving time in prison.

       From our review of Code § 19.2-316.2, we conclude that the General Assembly intended

for a trial court to exercise its discretion in determining whether to credit any time a defendant

spends in the detention center program toward the originally imposed sentence of imprisonment.

       Code § 19.2-316.2(A)(4) provides:

               Upon a finding that the defendant voluntarily withdrew from the
               program, was removed from the program by the Department for
               intractable behavior, or failed to comply with the terms and
               conditions of probation, the court may revoke all or part of the
               probation and suspended sentence and commit the defendant as
               otherwise provided in this chapter.

(Emphasis added). In other words, the defendant’s failure to complete the program, whether

voluntary or involuntary, permits the trial court to exercise its discretion to determine whether

the defendant thereby violated the terms of his probation and whether it should revoke all or part

of the defendant’s suspended sentence. Code § 19.2-316.2(A)(4). Consistent with the trial

court’s discretion of whether to revoke a defendant’s suspended sentence is its discretion of

whether to credit all or part of the time a person spent in the program toward the sentence of

imprisonment previously imposed.

       Just as a trial court has discretion to credit all or part of the time spent in the program

toward a sentence of incarceration for one who does not complete it, so also a trial court has

discretion to credit all or part of the time spent in the program toward a sentence of

imprisonment when that person successfully completes the program. Indeed, this Court has

recognized a trial court’s authority to credit the time a defendant spends incarcerated “pending

the suitability evaluation and diagnosis” for another of the alternative incarceration programs,



                                                -7-
even though the similarly worded statute, Code § 19.2-316.3, did “not require such a result.”

Rogers v. Commonwealth, 29 Va. App. 580, 587, 513 S.E.2d 876, 879 (1999).

        Moreover, the language in Code § 19.2-316.2(A)(1), in effect when appellant was found

to have violated his initial probation, provided that it was only at the defendant’s request that he

be committed to the Department of Corrections to determine his suitability for participation in

the detention center program.2 Once a person is subject to the terms and conditions of probation

as a condition of suspended sentence of incarceration, he must abide by those conditions at the

risk of having the suspended sentence revoked. Griffin v. Cunningham, 205 Va. 349, 354, 136

S.E.2d 840, 844 (1964); see also Code § 19.2-306(C).

        By entering and completing the detention center program, Charles undertook a limit on

his freedom in exchange for being placed on probation and not being imprisoned. He twice

violated the terms and conditions of his probation which he was required to obey. Under these

circumstances, Charles demonstrated an “unwillingness to avail [himself] of the opportunity

afforded by the court.” Connelly v. Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 245

(1992). The trial court, in turn, was free to exercise its authority to credit Charles with the time

spent in the program toward his sentence of imprisonment. It chose not to do so. We find no

error in its decision.

        Charles also argues that because the General Assembly expressly provided language

denying credit toward a sentence for a person on parole in Code § 19.2-316.2(B), the absence of

similar language in Code § 19.2-316.2(A) demonstrates legislative intent that persons who

complete the program under that subsection must be awarded credit for that time spent in the

program toward any sentence of incarceration. We disagree.


        2
          In 2002, the General Assembly amended the statute to provide that the court sua sponte,
or the attorney for the Commonwealth, may also request that the convicted person be evaluated
to determine his eligibility for the program.
                                              -8-
       “If the several provisions of a statute suggest a potential for conflict or inconsistency, we

construe those provisions so as to reconcile them and to give full effect to the expressed

legislative intent.” Mejia v. Commonwealth, 23 Va. App. 173, 176-77, 474 S.E.2d 866, 868

(1996) (en banc). Code § 19.2-316.2(B) provides that as an alternative to returning a parole

violator to prison, he may be continued on parole on the condition that he complete the detention

center program. That subsection expressly provides that “[t]he time spent in the program shall

not be counted as service of any part of a term of imprisonment for which he was sentenced upon

his conviction.” Code § 19.2-316.2(B)(3). If the parole violator in the detention center program,

or who has completed the program, subsequently violates the terms of his parole, he may be

returned to prison to resume serving his sentence without credit for time spent in the detention

center program. Stated differently, neither the trial court nor the Department of Corrections may

credit the parolee with sentence credit for time spent in the detention center program under the

express provisions of Code § 19.2-316.2(B). Clearly, the legislature intended to treat the parole

violator differently than the probation violator in terms of sentence credit.

       The absence of express language neither requiring nor prohibiting credit be given to

individuals on probation under Code § 19.2-316.2(A) reflects legislative intent to permit the trial

court to exercise its discretion whether to award credit on a case by case basis.

       Permitting the trial court to exercise its discretion whether to credit time in the program is

consistent with “[t]he obvious purpose of affording trial courts discretion in matters of

suspension and probation . . . to provide a remedial tool to use in the rehabilitation of criminals.”

Nuckoles, 12 Va. App. at 1086, 407 S.E.2d at 356.

       We also conclude that the General Assembly’s use of the terms “incarceration” and

“confinement” in Code § 19.2-316.2 does not reflect its intent to equate time spent in the

detention center program to be equivalent to serving an active sentence of imprisonment. We

                                                -9-
construe the challenged statute “from its four corners and not by singling out particular words or

phrases.” Smith v. Commonwealth, 8 Va. App. 109, 113, 379 S.E.2d 374, 376 (1989). Code

§ 19.2-316.2(A)(1) also provides that the trial court may order the “defendant committed to the

Department of Corrections for a period not to exceed sixty days from the date of commitment for

evaluation and diagnosis by the Department to determine suitability for participation in the

Detention Center Incarceration Program.” (Emphasis added). We have held that this period of

confinement for evaluation is not required to be credited toward a defendant’s suspended

sentence, but may be credited in the trial court’s discretion. See Rogers, 29 Va. App. at 587, 513

S.E.2d at 879.

       We also note that the General Assembly has provided for specific instances where time is

to be credited toward the service of a sentence of imprisonment. For example, Code § 53.1-187

provides that the time spent by an accused in pretrial confinement must be credited toward a

sentence of incarceration. On the other hand, Code § 53.1-203 provides that the time served for

an escape conviction shall not be credited toward the escapee’s original sentence from which the

escape occurred.

       Other jurisdictions that have considered this issue have reached similar conclusions. See

State v. Jakoski, 966 P.2d 663 (Idaho Ct. App. 1999) (a defendant sentenced after revocation of

probation is not entitled to credit against the sentence for jail time served as a condition of

probation); see also Williams v. State, 673 So. 2d 873 (Fla. Dist. Ct. App. 1996); People v.

Rollins, 520 N.E.2d 1255 (Ill. App. Ct. 1988); People v. Jaynes, 178 N.W.2d 558

(Mich. Ct. App. 1970); State v. Sutherlin, 341 N.W.2d 303 (Minn. Ct. App. 1983); State v.

Shapiro, 549 P.2d 1054 (Ariz. Ct. App. 1976). In addition, the position taken by American Law

Institute is that a limited term of confinement imposed as a condition of probation should not be




                                                - 10 -
credited toward the service of a sentence upon revocation of probation. Model Penal Code

§ 301.1(3).3

       For the foregoing reasons, we conclude that Charles was not entitled as a matter of law to

credit for time spent in the detention center program toward his sentence of incarceration. He

was placed in the detention center program after he violated the terms of a prior probation as a

condition of a suspended sentence of imprisonment. Having found that Charles had violated his

probation a second time, the trial court had discretion to revoke his suspended sentence and to

impose all or part of the remainder of his original sentence of imprisonment. Because Charles

failed to request the trial court to grant credit for time spent in the program, and we have

determined that it is within the sound discretion of the trial court whether to grant such credit, we

cannot conclude that the trial court committed clear error in not awarding credit. Finding no

requirement that the trial court must credit the time spent in the detention center program toward

his sentence of imprisonment, we conclude that it did not err when it revoked Charles’s

suspended sentence and resentenced him to serve the remaining four-year sentence of

imprisonment. In other words, the trial court did not sentence Charles to a period in excess of his

originally imposed sentence.

       Charles has failed to affirmatively show that a miscarriage of justice has occurred in his

sentencing. Accordingly, we affirm the trial court’s sentence of Charles to the four years


       3
           Model Penal Code § 301.1(3) provides:

                When the Court sentences a person who has been convicted of a
                felony or misdemeanor to be placed on probation, it may require
                him to serve a term of imprisonment not exceeding thirty days as
                an additional condition of its order. The term of imprisonment
                imposed hereunder shall be treated as part of the term of probation,
                and in the event of a sentence of imprisonment upon the revocation
                of probation, the term of imprisonment served hereunder shall not
                be credited toward service of such subsequent sentence.

                                               - 11 -
remaining of his original sentence without crediting any time served in the Detention Center

Incarceration Program.

                                                                                       Affirmed.




                                             - 12 -
Benton, J., dissenting.

        The August 22, 2000 sentencing order indicates that the trial judge as a part of his

sentencing decision ordered Atif Charles to “enter and successfully complete the Detention

Center Incarceration Program.” The detention center statute by its express terms characterizes

the “system of residential detention centers [as providing] a highly structured, short term period

of incarceration for individuals committed to the Department [of Corrections] under the

provisions of [Code] § 19.2-316.2.” Code § 53.1-67.8 (emphasis added). By failing to credit

Charles for the Detention Center “period of incarceration” when he revoked the balance of

Charles’s unserved sentence, the trial judge lengthened Charles’s period of incarceration beyond

that which was ordered in the sentencing order. However, when a sentencing order has become

final under Rule 1:1, a trial judge has “no authority to lengthen the period of incarceration.”

Robertson v. Superintendent of the Wise Correctional Unit, 248 Va. 232, 236, 445 S.E.2d 116,

118 (1994). Thus, I would hold that Charles’s period of incarceration in the Detention Center

Incarceration Program must be counted when determining the amount of incarceration Charles

served under the August 22, 2000 sentencing order.

        I agree with Charles’s argument that the General Assembly has indicated its intent to treat

probationers different than parolees by the express language in Code § 19.2-316.2(B), denying

credit to a parole violator who is ordered into the program. Indeed, this is a rational distinction

because “[t]he essence of parole is release from prison, before the completion of sentence.”

Morrissey v. Brewer, 408 U.S. 471, 477 (1972). The administration of the system of punishment

and the functioning of the parole system are responsibilities of the executive department.

Fishback v. Commonwealth, 260 Va. 104, 112, 532 S.E.2d 629, 632 (2000). The general rule in

parole systems is that “[i]f a parolee is returned to prison, he . . . receives no credit for the time

‘served’ on parole.” Morrissey, 408 U.S. at 480. See Burgess v. Cunningham, 205 Va. 623,

                                                 - 13 -
626, 139 S.E.2d 110, 112 (1964) (holding that the “General Assembly intended that a parolee is

not entitled to have his parole time . . . credited upon his sentence”). The enforcement leverage

that is unique to parole is the authority of the executive department to return the parolee to prison

to serve the balance of the sentence when the parolee violates the terms of his release from

prison. Morrissey, 408 U.S. at 478-79.

       For these reasons, I would reverse the order and remand for resentencing.




                                               - 14 -
