Wakeel Abdul-Sabur v. Commonwealth of Virginia ( 2023 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Beales and Lorish
WAKEEL ABDUL-SABUR
MEMORANDUM OPINION*
v. Record No. 0210-22-2 PER CURIAM
NOVEMBER 14, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Timothy K. Sanner, Judge
(Wakeel Abdul-Sabur, on briefs), pro se.
(Jason S. Miyares, Attorney General; William K. Hamilton, Assistant
Attorney General, on brief), for appellee.
Wakeel Abdul-Sabur challenges the order of the trial court denying his post-conviction
motion for resentencing. 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).
BACKGROUND
A jury convicted Wakeel Abdul-Sabur of two counts of grand larceny in 1998. By final
order entered on April 1, 1999, the trial court sentenced Abdul-Sabur to a total of ten years of
imprisonment with three years and nine months suspended. A judge of this Court denied
Abdul-Sabur’s appeal by order entered on September 13, 1999. See Abdul-Sabur v.
Commonwealth, No. 0904-99-2 (Sept. 13, 1999) (order). The record does not reflect any further
*
This opinion is not designated for publication. See Code § 17.1-413(A).
appeal; however, Abdul-Sabur has filed various post-conviction motions attacking his
convictions and sentence.
On June 23, 2021, Abdul-Sabur filed a motion for resentencing in the trial court, alleging
that recent amendments to Code § 19.2-295.1 and the Supreme Court’s holding in Fishback v.
Commonwealth, 260 Va. 104 (2000), entitled him to be resentenced on his 1999 convictions. By
order entered on July 19, 2021, the trial court denied the motion and explained, “Having
reviewed the latest amendments to Virginia Code § 19.2-295.1, the Court finds no provisions
therein which would permit the Court to reconsider the Defendant’s sentencing.” Abdul-Sabur
then appealed the trial court’s order to this Court.
ANALYSIS
Abdul-Sabur argues on appeal that the trial court erred in denying his motion for
resentencing because the “Fishback error” in his sentence was an error in the sentencing
proceeding under Code § 19.2-295.1. Abdul-Sabur contends that he is entitled to resentencing
under Code § 19.2-295.1 because the holding in Fishback means that his sentence was
subsequently found invalid.
In Fishback, the Virginia Supreme Court held that “henceforth juries shall be instructed,
as a matter of law, on the abolition of parole for non-capital felony offenses committed on or
after January 1, 1995 pursuant to Code § 53.1-165.1.” 260 Va. at 115. The Supreme Court
further stated, “In addition, because Code § 53.1-40.01 is in the nature of a parole statute, where
applicable juries shall also be instructed on the possibility of geriatric release pursuant to that
statute.” Id. at 115-16.
Code § 19.2-295.1 provides, in pertinent part, as follows:
If the sentence imposed pursuant to this section is subsequently set
aside or found invalid solely due to an error in the sentencing
proceeding, the court shall impanel a different jury to ascertain
punishment, unless the defendant, the attorney for the
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Commonwealth and the court agree, in the manner provided in
§ 19.2-257, that the court shall fix punishment.
Under Rule 1:1(a) of the Rules of the Supreme Court of Virginia, “[a]ll final judgments,
orders, and decrees . . . remain under the control of the trial court and may be modified, vacated,
or suspended for twenty-one days after the date of entry, and no longer.” “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). “In a criminal case, the final order is the
sentencing order.” Dobson v. Commonwealth, 76 Va. App. 524, 528 (2023) (quoting Johnson v.
Commonwealth, 72 Va. App. 587, 596 (2020)). Whether a circuit court has jurisdiction over a
particular matter is a question of law that this Court reviews de novo on appeal. See Reaves v.
Tucker, 67 Va. App. 719, 727 (2017).
Here, Abdul-Sabur is not entitled to relief under Code § 19.2-295.1 or under the Supreme
Court’s holding in Fishback. The Supreme Court expressly held in Fishback that, because it
announced “a new rule of criminal procedure,” the holding was “limited prospectively to those
cases not yet final” on the date it was announced, which was June 9, 2000. 260 Va. at 116(emphasis added). As noted supra, the trial court’s final order sentencing Abdul-Sabur was
entered on April 1, 1999. This Court then denied Abdul-Sabur’s petition for appeal on
September 13, 1999, which was the last action on his appeal of the trial court’s judgment.
Therefore, Fishback simply does not apply to Abdul-Sabur’s case, given that Abdul-Sabur’s
convictions became final many months before the Supreme Court’s decision in Fishback.
In addition, the trial court correctly held that the amendments to Code § 19.2-295.1 do
not contain any provisions that permitted the trial court to reconsider Abdul-Sabur’s sentence
many years after a final judgment was entered. To the contrary, the language upon which
Abdul-Sabur relied “was already in the statute” at the time that Abdul-Sabur was originally
sentenced in 1999. Dobson, 76 Va. App. at 526 n.1. That language does not provide an
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exception to Rule 1:1, but instead provides a mechanism for resentencing after a sentence has
been “set aside or found invalid solely due to an error in the sentencing proceeding.” Code
§ 19.2-295.1. Here, Abdul-Sabur’s sentence has not been set aside or found invalid by any error
in the sentencing proceeding. Consequently, because Abdul-Sabur filed this motion well after 21
days from the entry of the final order, the trial court did not have jurisdiction to grant Abdul-
Sabur the relief that he requested.
Moreover, we recently explained that “[t]o preserve a claim for Fishback relief, . . . the
defendant must have raised a timely objection at trial to the court’s failure to give” the abolition
of parole instruction. Dobson, 76 Va. App. at 528 n.4 (citing Commonwealth v. Jerman, 263 Va.
88, 93-94 (2002)). The record before us on appeal does not indicate that Abdul-Sabur ever
raised such an objection during his trial.
CONCLUSION
In short, the trial court correctly determined that it could not modify the 1999 sentencing
order, and, therefore, we do not disturb the judgment of the trial court.
Affirmed.
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