Hackett v. Commonwealth

PRESENT: All the Justices
MATTHEW FITZGERALD HACKETT
OPINION BY
v. Record No. 160619 CHIEF JUSTICE DONALD W. LEMONS
JUNE 1, 2017
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals of Virginia erred when it
affirmed the defendant’s conviction and sentence, and affirmed the trial court’s refusal to set
aside the conviction and sentencing orders after concluding that it had lost jurisdiction to modify
the orders pursuant to Rule 1:1.
I. Facts and Proceedings
Matthew Fitzgerald Hackett (“Hackett”) was indicted in the Circuit Court of Franklin
County (“trial court”) on a charge of possession with intent to distribute more than one-half
ounce but less than five pounds of marijuana, in violation of Code § 18.2-248.1. On January 20,
2009, Hackett pled guilty to this charge. As part of his guilty plea, he completed a written form
in which he affirmed that he was voluntarily pleading guilty to the charge because he was guilty
of the charge. As part of that form, Hackett also affirmed that no one, including the
Commonwealth’s Attorney, had made any promises to him concerning his plea of guilty. The
form was signed by Hackett and his attorney.
There is no transcript of the January 20, 2009 proceedings. According to the statement of
facts in lieu of a transcript, although there was no written plea agreement, both the
Commonwealth and the defense agreed that the appropriate disposition was to “take the case
under advisement for an extended period of time, under any terms and conditions imposed by the
court,” and if the defendant successfully completed all terms and conditions, the felony charge
would be reduced to a misdemeanor. The statement of facts does not reflect whether the trial
court was made aware of this understanding between the Commonwealth’s Attorney and defense
counsel prior to accepting Hackett’s guilty plea and entering a conviction order. On January 20,
2009, the trial court entered a conviction order, finding Hackett guilty of the charged felony
offense.
The sentencing hearing was held on April 24, 2009. The sentencing guidelines
recommended probation. According to the statement of facts, at this hearing Hackett asked the
trial court to take his case under advisement and to reduce the felony to a misdemeanor if he
successfully completed the terms and conditions imposed by the court. The trial judge gave
Hackett the choice to “walk out of the courtroom with a felony conviction” or “go the extra
mile” and submit to the court’s requirements. Hackett chose the latter option and was remanded
to jail at the conclusion of the hearing. On April 28, 2009, the trial court entered a sentencing
order in which it sentenced Hackett to three years’ imprisonment, with two years and three
months suspended for a period of five years, and two years of supervised probation upon release
from incarceration.
No orders were entered suspending the conviction or sentencing order at any time. On
September 1, 2009, several months after both the conviction order and the sentencing order were
entered, Hackett’s attorney sent a letter to the trial judge, asking the court to reconsider the
felony conviction. A hearing was held on December 20, 2009, during which the trial court ruled
from the bench that it would take the motion under advisement for a period of twelve months on
the condition that Hackett be of good behavior and complete intensive supervised probation.
The trial judge stated that if Hackett complied with the court’s conditions, that he would be
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“home-free from the felony.” On December 23, 2009, the trial court entered an order placing
Hackett on intensive supervised probation for twelve months.
The parties returned to court a year later on Hackett’s motion to amend his conviction to
a misdemeanor. The trial court took the motion under advisement for an additional twelve
months, but the court released Hackett from probation. It appears nothing additional happened in
this matter until August 5, 2013, when Hackett filed a “motion to modify sentence.” A hearing
was held on August 20, 2013, during which Hackett again moved to amend his conviction to a
misdemeanor. The trial court entered an order on September 9, 2013, taking the motion under
advisement “to allow investigation of recent changes in the law regarding the matter.” Another
hearing was held on October 8, 2013, after which the trial court entered an order wherein it
continued to take the matter under advisement “until after the Supreme Court has made a
decision on the appeal of the law regarding this matter.” 1
On December 17, 2014, another hearing was held where the trial court heard additional
argument from the parties. On December 30, 2014, the trial court entered an order denying and
dismissing Hackett’s motion to reduce the felony to a misdemeanor. In the order, the trial judge
explained that, following the December 9, 2009 hearing, he had intended to reduce Hackett’s
felony to a misdemeanor if Hackett complied with the terms set by the court, but that the court
had been under the “mistaken impression that it had the discretion to reduce the charge as
requested.” However, the trial judge held that, in accordance with this Court’s decisions in
Moreau v. Fuller, 276 Va. 127, 661 S.E.2d 841 (2008), Hernandez v. Commonwealth, 281 Va.
222, 707 S.E.2d 273 (2011), and Starrs v. Commonwealth, “even though the court intended to
1
It appears that the trial court was referencing the case of Starrs v. Commonwealth, 287
Va. 1, 752 S.E.2d 812 (2014), which appeal was pending before this Court at that time.
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grant defendant’s request and reduce the felony to a misdemeanor, it is clear from the authorities
cited, this court does not have the discretion to make any disposition other than impose the
punishment prescribed by the legislature after entering a written order finding defendant guilty
and a written order setting his punishment.”
Hackett appealed this December 30, 2014 order to the Court of Appeals of Virginia. The
Court of Appeals, in a per curiam order, denied the appeal. Hackett v. Commonwealth, Record
No. 0084-15-3, slip op. at 1 (Sept. 14, 2015) (unpublished). The Court of Appeals held that
although the Commonwealth and Hackett agreed that the appropriate disposition was to take the
case under advisement and then eventually reduce the felony conviction to a misdemeanor, under
Rule 1:1, the trial court lacked jurisdiction to do so after 21 days passed from the entry of the
April 28, 2009 sentencing order. Id. at 3-4. The Court of Appeals also ruled that a court may not
enter a nunc pro tunc order extending its jurisdiction in contravention of Rule 1:1. Id. at 4.
Further, the Court of Appeals held that the sentencing order was not void ab initio, concluding
that the failure to include a provision in the order regarding taking the matter under advisement
did not render the order void ab initio where the court had jurisdiction over the criminal matter,
over the defendant, and had the power to enter the sentence it entered. Id. at 5. A three-judge
panel subsequently affirmed the per curiam order. Hackett v. Commonwealth, Record No. 0084-
15-3, slip op. at 1 (Dec. 15, 2015) (unpublished).
Hackett appealed to this Court, and his petition for appeal was supported by the
Commonwealth’s Attorney, who also assigned cross-error to the Court of Appeals’ order. We
granted Hackett’s appeal on the following assignments of error:
1. The Court of Appeals erred when it failed to find that the trial court erroneously entered a
conviction order that that failed to take the case under advisement for a potential
reduction of the felony offense to a misdemeanor and to subsequently modify the
conviction order.
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2. The Court of Appeals erred when it failed to find that the trial court committed reversible
error when it entered an order of conviction and final sentencing order and continued the
case and ordered Hackett to continue under quasi-probation status with the promise of a
particular disposition at a later date, in violation of Hackett’s constitutionally protected
due process rights.
3. The Court of Appeals erred when it failed to find that the trial court erred when it denied
Hackett’s motion for modification of sentence and correct the order to reflect the court’s
intended disposition in the matter, nunc pro tunc.
4. The Court of Appeals erred when it found that the trial court’s conviction and sentencing
orders are not void ab initio.
We granted the Commonwealth’s assignments of cross-error 2:
1. The trial court and the Court of Appeals of Virginia erred in concluding that the trial
court was precluded by language in this Court’s holdings in Starrs v. Commonwealth,
Hernandez v. Commonwealth, and Moreau v. Fuller from reducing the felony conviction
to a misdemeanor conviction where the trial court ordered the conditions of the continued
case without rendering a final judgment that determined the rights of the parties.
2. The Court of Appeals of Virginia erred in concluding that Rule 1:1 precluded the trial
court from rendering its final determination of the rights of the defendant and the
Commonwealth in the matters properly before it in the continued case.
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After this appeal was granted, the Attorney General assumed representation of the
Commonwealth, reversed the position of the Commonwealth’s Attorney, and abandoned the
assignments of cross-error. “It is apparent that the Commonwealth has assumed inconsistent
positions. The Commonwealth’s Attorney, the only official legal representative of the
Commonwealth in the trial court, acquiesced in the procedure that the Attorney General now
attacks. Nevertheless, the Commonwealth may not be estopped from repudiating the earlier
position erroneously taken by the Commonwealth's Attorney, nor may the Department be
estopped from changing its position.” In re Commonwealth of Va. Dep’t of Corr., 222 Va. 454,
465, 281 S.E.2d 857, 863 (1981). The Commonwealth’s Attorney asked for leave of court to file
a brief in support of its assignments of cross-error. We denied the motion, but invited the
Commonwealth’s Attorney to file an amicus brief, which he did.
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II. Analysis
The issues presented in this appeal regarding whether the trial court had the authority to
modify its conviction and sentencing orders involve questions of law, which we review de novo.
Hernandez, 281 Va. at 224, 707 S.E.2d at 274.
Rule 1:1 provides in relevant part that, “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
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 the judgment.” Super
Fresh Food Mkts. of Va., Inc., v. Ruffin, 263 Va. 555, 560, 561 S.E.2d 734, 737 (2002).
Furthermore, “[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.” Id. The record in this case demonstrates that the
conviction order in this case was entered on January 9, 2009, and the sentencing order was
entered on April 28, 2009. Neither of these orders was modified, vacated or suspended within
twenty-one days of their entry. Accordingly, they became final and the trial court lost
jurisdiction to modify the conviction 3 in this case.
We recognize that the record demonstrates an oral understanding between the trial court,
the defendant, and the Commonwealth’s Attorney that the trial court would modify the
conviction upon completion of certain conditions. This understanding, however, was never
3
Under Code § 19.2-303, trial courts retain the authority to modify or suspend any
unserved portion of a sentence up until a defendant sentenced for a felony is transferred to the
custody of the Department of Corrections. However, this statute is not implicated in this case
because Hackett has only attempted to modify his conviction, not his sentence.
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reduced to a written plea agreement, and the conviction order was never modified, vacated or
suspended within twenty-one days of its entry. By the time of the December 21, 2009 hearing,
where defense counsel asked the trial court to modify the conviction and the trial court placed
Hackett on probation, the trial court had lost jurisdiction to modify the conviction in this case
and simply did not have the power to do what the parties asked it to do.
Hackett and amicus argue that the trial court erred by failing to resolve this case by
utilizing a nunc pro tunc order. We have explained that
The purpose of a nunc pro tunc order entry is to correct mistakes of
the clerk or other court officials, or to settle defects or omissions in
the record so as to make the record show what actually took place.
It is not the function of such entry by a fiction to antedate the
actual performance of an act which never occurred, to represent an
event as occurring at a date prior to the time of the actual event, or
to make the record show that which never existed.
Council v. Commonwealth, 198 Va. 288, 293, 94 S.E.2d 245, 248 (1956) (citation and internal
quotation marks omitted). When presented with the argument that he resolve this case by
entering a nunc pro tunc order under the theory that there was a scrivener’s error in the
conviction and sentencing orders, the trial judge stated on the record that “it’s not a scrivener’s
error. I mean this is exactly what was agreed to be done and what was supposed to be done and
what I did. There is no scrivener’s error in that.” The trial judge’s own words demonstrate that
no scrivener’s error occurred in the preparation of the conviction and sentencing orders. The
orders reflected the actions that the trial court intended to take when those orders were entered.
Hackett’s final argument is that the conviction and sentencing orders were void ab initio.
We have held that
An order is void ab initio if entered by a court in the absence of
jurisdiction of the subject matter or the parties, if the character of
the order is such that the court had no power to render it, or if the
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mode of procedure used by the court was one that the court could
not lawfully adopt.
Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001) (citations and internal
quotation marks omitted). However, in the present case there is no dispute that the trial court
had jurisdiction over the subject matter – a criminal case – and the parties. The trial court had
the power to convict the defendant of the felony, to which Hackett had pled guilty, and to
sentence him on that felony. There is no evidence of any defect in the procedure used by the trial
court to convict the defendant and sentence him. Rather, the procedure the parties wanted the
trial court to follow, to reduce Hackett’s conviction after it became final, would have been a
procedure the court could not lawfully adopt.
In Burrell v. Commonwealth, 283 Va. 474, 480, 722 S.E.2d 272, 275 (2012), we held that
a provision in a sentencing order which stated that the court would reduce the conviction from a
felony to a misdemeanor following the defendant’s incarceration and probation was an ultra vires
provision that rendered the sentencing order void ab initio. That provision was ultra vires
because 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 sentencing
order. Id. Our decision in Burrell makes clear that the conviction and sentencing orders in this
matter were not void ab initio, but they very well might have been had the trial court employed
the procedure requested by counsel.
This Court is aware that Hackett complied with all the terms and conditions set by the
trial court, with the understanding that by doing so his felony conviction would be reduced to a
misdemeanor. However, once the trial court’s conviction and sentencing orders became final,
the trial court lost its authority to modify the conviction. The Court of Appeals did not err in
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affirming the trial court’s ruling that it lacked the authority to amend the conviction after more
than 21 days had passed since entry of the conviction and sentencing orders.
III. Conclusion
For the reasons stated, we will affirm the judgment of the Court of Appeals.
Affirmed.
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