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Defendant pled guilty to attempted rape, a felony. Defendant's sentencing order contained a provision stating that the sentencing court would reduce the conviction from a felony to a misdemeanor following Defendant's incarceration and successful completion of probation. After Defendant violated his probation, he filed a motion to vacate the sentencing order as void ab initio and to dismiss his charge of the probation violation, arguing that the circuit court did not have the power to reduce his conviction to a misdemeanor under the circumstances. The circuit court denied Defendant's motion. The Supreme Court reversed, holding (1) in this case, the circuit court did not have the power to render a judgment reducing Defendant's conviction from a felony to a misdemeanor more than five years after its entry of the sentencing order; and (2) the ultra vires provision in the sentencing order resulted in the entire sentencing order being void ab initio.
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KHALIQ JOSHUA BURRELL
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.
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.
the agreement of the parties, the court amended the indictment
to attempted rape.
Burrell was arraigned and pled guilty to
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.
stated: “Upon successful completion of probation, the charge in
this case will be reduced to a misdemeanor, Sexual Battery.”
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.
filed motions to vacate the sentencing order as void ab initio
and to dismiss the charge of the probation violation.
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
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
Burrell timely noted his appeal.
Burrell assigns error to the circuit court’s denial of his
motion to vacate and to each of the three rulings.
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.
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
Super Fresh Food Mkts. of Va., Inc. v. Ruffin,
263 Va. 555, 560, 561 S.E.2d 734, 737 (2002).
“[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.”
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,
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
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:
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
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.”).
We now turn to Burrell’s assignment of error regarding the
circuit court’s denial of his motion to vacate.
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).
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
Id. at 215, 683 S.E.2d at 546.
maximum actually was 20 years of incarceration.
The jury returned a verdict of 25 years.
S.E.2d at 546.
Id. at 216, 638
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.
S.E.2d at 549.
Id. at 221, 683
To ensure that “criminal defendants whose
punishments have been fixed in violation of the statutorily
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
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
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.
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.
that the circuit court’s ruling on invited error was conditioned
on its ruling that it retained jurisdiction under Code § 19.2303 and based on the non-finality of the order.
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,
anywhere, at any time, or in any manner.”
Id. at 402, 649
S.E.2d at 678 (internal quotation marks omitted).
sentencing order in this case is void ab initio, the doctrine of
invited error does not bar Burrell’s motion to vacate that
Burrell asks, as he did below, that the Court vacate the
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
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.