Cleverness - Holland v. Commonwealth & § 19.2-303

Under Virginia Code § 19.2-303 a Virginia trial court maintains jurisdiction to suspend all or part of a felony sentence as long as the individual has not been transferred to the Virginia Department of Corrections:

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.

Holland was in federal custody on November 2. On that date, without presenting evidence, he got the trial judge to suspend his sentence pending a hearing to determine whether his active sentence in Virginia should be suspended. On November 3 Holland was transferred to the Virginia Department of Corrections. In a subsequent hearing the trial judge declined to reduce Holland's sentence and imposed the 18 months he had suspended in the previous order.

Holland presented the Court of Appeals with a clever argument. On November 2 the trial court had jurisdiction. On November 3 the trial court did not have jurisdiction. Therefore, the trial court could not change its November 2 order and the suspension of the sentence must stand.

Now, that is a creative and novel way of looking at the statute. It turns the purpose of the statute on its ear and has the advantage of being correct. The judge had no jurisdiction to act on Holland's sentence after November 3. Even the appellate court rules that the judge had no power to do so and therefore any orders from the trial court after November 3 are void ab initio.

Unfortunately for Holland his three judge panel on the Court of Appeals included Judge Robert J. Humphreys, perhaps the most consistently clever of Virginia's appellate judges. Judge Humphreys doesn't stop after declaring the post-November 3 trial court orders void ab initio. He then goes on to examine the November 2 order.

Looking at the plain language of the statute, Judge Humphreys declares, "In addition to permitting the exercise of jurisdiction over a defendant who has not yet been transferred to the custody of the DOC, Code § 19.2–303 clearly requires that before a sentence may actually be suspended or modified, the circuit court also find (1) that suspending or modifying the unserved portion of the sentence would be compatible with the public interest, and (2) that there are circumstances in mitigation of the offense." He then points out that there was no evidentiary hearing and therefore, the judge could not have made either of these findings.

Holland doesn't give up. He apparently argues that his motion carried evidence in it, but Judge Humphreys shoots that down, quoting case law that states a motion is just allegations. Then Holland tries to argue that the trial court implicitly made those findings when it entered an order suspended the sentence on November 2. However, Judge Humphreys shuts that down - pointing out that the trial court had scheduled a hearing to take evidence and thus there was no implicit findings because there was no final ruling. Judge Humphreys concludes that the transfer of Holland to the DOC rendered the November 2 ruling voided by operation of law.

Clever argument and clever ruling. I wish more opinions were as interesting as this one.

My breakdown of the opinion:

§ 19.2-303 - Suspension of Individual's Sentence

Holland v. Commonwealth, OCT13, VaApp No. 0965-12-3: (1) Per the statute, the trial judge loses jurisdiction to suspend any part of the sentence once the individual has been transferred to DOC. (2) Once an individual has been transferred from federal custody to Virginia DOC the trial judge loses jurisdiction to suspend the Virginia sentence. (3) Any order purporting to suspend an individual's sentence after the defendant has been transferred to DOC is void ab initio. (4) Before suspending part of a previously imposed sentence under the statute the trial judge must find (a) that suspending or modifying the unserved portion of the sentence would be compatible with the public interest, and (2) that there are circumstances in mitigation of the offense. (5) When a trial court suspends the imposition of a sentence pending a 19.2-303 hearing has not implicitly found the two conditions needed to suspend the sentence. (6) Once an individual has been transferred to DOC an order suspending imposition of his sentence pending a 19.2-303 hearing is void.