Alfred A. Harper v. Commonwealth of Virginia ( 2022 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges AtLee and Malveaux
UNPUBLISHED
ALFRED A. HARPER
MEMORANDUM OPINION*
v. Record No. 0589-22-2 PER CURIAM
OCTOBER 11, 2022
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Randall G. Johnson, Jr., Judge
(Alfred A. Harper, on brief), pro se.
(Jason S. Miyares, Attorney General; Victoria Johnson, Assistant
Attorney General, on brief), for appellee.
Appellant Alfred A. Harper, pro se, appeals the circuit court’s denial of his motion to vacate
three summary contempt convictions. After examining the briefs and record in this case, the panel
unanimously holds that oral argument is unnecessary because “the appeal is wholly without
merit.” Code § 17.1-403(ii)(a); Rule 5A:27(a). Because the circuit court lacked jurisdiction to
consider Harper’s motion, we lack jurisdiction, and accordingly we dismiss the appeal.
I. BACKGROUND
“When reviewing a trial court’s decision on appeal, [this Court] view[s] the evidence in the
light most favorable to the prevailing party, granting it the benefit of any reasonable inferences.”
Starr v. Starr, 70 Va. App. 486, 488 (2019) (quoting Congdon v. Congdon, 40 Va. App. 255, 258
(2003)).
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
In 2011, Harper was indicted for four counts of credit card theft, two counts of credit card
fraud, and conspiracy to commit credit card theft. On May 10, 2012, Harper pleaded guilty to one
count of credit card theft, two counts of credit card fraud, and conspiracy to commit credit card
theft, in violation of Code §§ 18.2-192, 18.2-195, and 18.2-22. After a short recess, Harper
asked to withdraw his guilty pleas, which the circuit court denied. After a bench trial, he was
convicted of the remaining three counts of credit card theft. Due to his courtroom conduct, the
circuit court also convicted Harper of six counts of misdemeanor contempt. By final order
entered May 17, 2012, the circuit court sentenced Harper to five years imprisonment for each
felony conviction, six months in jail for five contempt counts, and five months in jail for the
sixth contempt count. Harper’s total sentence for all counts was thirty-five years and thirty-five
months, with twenty-five years and twenty-four months suspended, resulting in an aggregate
active sentence of ten years and eleven months.
Harper appealed his convictions to this Court, which denied the appeal by per curiam
order on November 28, 2012. Harper v. Commonwealth, No. 1369-12-2 (Va. Ct. App. Nov. 28,
2012). The Supreme Court of Virginia refused his appeal on June 7, 2013. Harper v.
Commonwealth, No. 122208 (Va. June 7, 2013). On January 7, 2022, Harper filed a pro se
“Motion: To Vacate or Correct Illegal Sentence in Summary Contempt Cases.” Harper asserted
that he was only found in contempt three times. He alleges that when the circuit court
announced its verdicts and summarized the multiple counts of summary contempt at the end of
trial, it mistakenly convicted him of six counts of contempt. Therefore, he reasons, three of his
contempt convictions are unlawful. The circuit court denied his motion to vacate the convictions
on January 11, 2022.1 Harper now appeals from that judgment.
The circuit court’s order states only that the motion is denied, without any
1
accompanying explanation.
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II. ANALYSIS
Before this Court can address the merits of Harper’s argument, we must first determine
whether the circuit court had the authority to consider Harper’s “Motion: To Vacate or Correct
Illegal Sentence in Summary Contempt Cases.” See Rule 1:1; Hackett v. Commonwealth, 293
Va. 392, 399 (2017) (holding that Rule 1:1 limits a court’s authority to alter a final order, absent
some other statute or rule, to twenty-one days following the date of entry of the order). We find
here that the circuit court did not have such jurisdiction.
A. Standard of Review
Our review of whether the circuit court retained jurisdiction over the case to allow it to
consider appellant’s motion involves the interpretation of the Rules of the Supreme Court of
Virginia. Thus, it poses a question of law that we review de novo. LaCava v. Commonwealth,
283 Va. 465, 470-71 (2012).
B. Jurisdiction and Rule 1:1
Harper contends that the circuit court originally found him in contempt only three times,
but that when it articulated its rulings and sentence at the end of trial, the circuit court
misremembered and convicted him of six counts of contempt. He claims that the record supports
his claim that the circuit court unlawfully convicted him of three additional counts of contempt.
Thus, he asks us to vacate these “illegal and void sentences.”
“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). “On its face, Rule 1:1
terminates a court’s jurisdiction twenty-one days after entry of a final order.” Martinez v.
Commonwealth, 71 Va. App. 318, 326-27 (2019). The time periods to note a direct appeal from
Harper’s convictions, to file a petition for a writ of habeas corpus under Code § 8.01-654, and for
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the circuit court to entertain a motion to modify his sentence under Code § 19.2-303 have all
long since expired.2
“[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 period, of an order modifying, vacating,
or suspending the final judgment order.” Hackett, 293 Va. at 399 (quoting Super Fresh Food
Mkts. of Va., Inc. v. Ruffin, 263 Va. 555, 560 (2002)). “The twenty-one-day period is only tolled
after entry of a final order or judgment through entry of an order that ‘expressly modifies,
vacates, or suspends the judgment.’” Wells v. Shenandoah Valley Dep’t of Soc. Servs., 56
Va. App. 208, 213 (2010) (quoting Super Fresh Food Mkts. of Va., 263 Va. at 563, 560). Absent
an express order, “the case will no longer be under the control of the trial court when the original
twenty-one-day time period has run.” Super Fresh Food Mkts. of Va., 263 Va. at 561. No such
order was entered in this case. Any action taken after the time expires “is a nullity.” Minor v.
Commonwealth, 66 Va. App. 728, 739-40 (2016).
Harper’s argument ignores the effect of Rule 1:1(a). “Expiration of the twenty-one day
time limitation divests the trial court of jurisdiction.” Stokes v. Commonwealth, 61 Va. App.
388, 392 (2013) (quoting Ziats v. Commonwealth, 42 Va. App. 133, 138 (2003)). Harper filed
the motion to vacate well after the expiration of the twenty-one-day jurisdictional window
defined by Rule 1:1(a). The record does not reveal, and Harper has provided no basis to
conclude, that an exception to Rule 1:1(a) applies. Accordingly, the circuit court did not have
jurisdiction to grant Harper the relief he requested. “[W]e have jurisdiction to consider his
appeal only if the trial court had jurisdiction to entertain the underlying motion.” Minor, 66
2
Harper makes no claim that the circuit court was authorized to modify the sentencing
order under Code § 8.01-428(B), which provides that “[c]lerical mistakes in all judgments or
other parts of the record and errors therein arising from oversight or from an inadvertent
omission may be corrected by the court at any time on its own initiative or upon the motion of
any party . . . .”
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Va. App. at 738 (dismissing appeal because trial court no longer had jurisdiction over the case
when it considered defendant’s motion to withdraw his guilty pleas). Since the circuit court no
longer had jurisdiction over the case to consider Harper’s motion, we do not have jurisdiction to
consider this appeal.3
III. CONCLUSION
For the foregoing reasons, we dismiss Harper’s appeal.
Dismissed.
3
Harper’s amended opening brief does not contain assignments of error despite
notification that his brief did not comply with the rules of this Court by letter dated May 18,
2022. This Court only considers assignments of error contained in an appellant’s opening brief.
See Rule 5A:20(c). Thus, there are no issues properly before this Court for consideration.
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