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Jones v. Commonwealth

Supreme Court of Virginia

February 2, 2017

DONTE LAMAR JONES
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF YORK COUNTY Richard Y. At Lee, Jr., Judge

          OPINION

          D. ARTHUR KELSEY JUSTICE

         Acting on a petition for certiorari, the United States Supreme Court in Jones v. Virginia, 136 S.Ct. 1358 (2016), vacated and remanded Jones v. Commonwealth (Jones I), 288 Va. 475, 763 S.E.2d 823 (2014), for our reconsideration in light of Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718 (2016). Having done so, we now reinstate our holding in Jones I, subject to the qualifications made herein, and affirm the trial court's denial of the motion to vacate filed by Donte Lamar Jones.

         I.

         In 2000, Jones and an accomplice, both armed and wearing masks, robbed two night clerks at a convenience store. They ordered both clerks to lie down on the floor. After his accomplice took roughly $35 from the cash register and the two were fleeing the scene, Jones shot one of the clerks in the back as she laid on the floor. The following day, Jones stated, "I think I paralyzed the bitch." J.A. at 9-10. In fact, however, Jones's gunshot wound had killed her. At the time of the offense, Jones was a few months away from his 18th birthday and was on supervised juvenile probation for a felony offense committed when he was 15 years old.

         After his arrest, Jones entered an Alford guilty plea to capital murder and several related charges. He executed a plea agreement stipulating that he would receive a life sentence "without the possibility of parole" on the capital murder charge and a term of years to be determined by the court on the remaining charges. Id. at 45. The plea agreement also stipulated that Jones agreed "to waive any and all rights of appeal with regard to any substantive or procedural issue involved in this prosecution." Id. at 44.

         The trial court held a sentencing hearing and received a presentence report from a probation officer. The court imposed the life sentence pursuant to the plea agreement, as well as a 68-year term of incarceration on the remaining 10 felony charges. The sentencing order concluded: "TOTAL SENTENCE IMPOSED: LIFE 68 YEARS" followed by "TOTAL SENTENCE SUSPENDED: NONE." Id. at 53.

         After serving 12 years of his sentence, Jones filed a motion to vacate his life sentence in the trial court, claiming that it violated the principles articulated in Miller v. Alabama, 567 U.S.___, 132 S.Ct. 2455 (2012), which was issued by the United States Supreme Court 11 years after his convictions. In Miller, two juvenile defendants received mandatory life sentences without the possibility of parole. Under applicable law, the state sentencing courts had no power to suspend in whole or in part either of the two mandatory life sentences. See Ala. Code § 15-22-50 ("The court shall have no power to suspend the execution of sentence imposed upon any [convicted] person . . . whose punishment is fixed at death or imprisonment in the penitentiary for more than 15 years.");[1] Ark. Code Ann. § 5-4-104(e)(1)(A)(i) ("The court shall not suspend imposition of sentence as to a term of imprisonment nor place the defendant on probation for . . . [c]apital murder.").[2]

         Miller held that "a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles." Miller, 567 U.S. at___, 132 S.Ct. at 2475 (emphasis added). A "mandatory sentencing" scheme that eliminates this opportunity, Miller concluded, could be constitutional only if at some later date the prisoner is afforded the "possibility of parole" - not the guarantee of it. Id. (emphasis added).

         Miller was quite clear about what it meant by a mandatory sentence: "Such mandatory penalties, by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Id. at, 132 S.Ct. at 2467 (emphasis added). Miller thus concluded that, "[b]y making youth (and all that accompanies it) irrelevant" to imprisonment for life without parole, mandatory, life-without-parole sentences for juveniles violate the Eighth Amendment. Id. at, 132 S.Ct. at 2469. Underlying this holding was the necessary premise that it could only apply to an actual, not a suspended, life-without-parole sentence imposed upon a juvenile offender because only the former, not the latter, would involve "condemning him or her to die in prison." Montgomery, 577 U.S. at, 136 S.Ct. at 726 (summarizing Miller).

         Relying on Miller, Jones's motion before the trial court expressly stated that it "only deal[t] with the Capital Murder charge." J.A. at 56. His motion also proposed an "alternative option" to his request for vacatur of the life sentence. Id. at 61. "Pursuant to Code § 19.2-303, " Jones argued, the trial court "'may suspend imposition of sentence or suspend the sentence in whole or part' on the Capital Murder conviction." Id. (quoting Code § 19.2-303); see also id. at 55-56. The motion to vacate concluded with this prayer for relief: "Suspend the mandatory life sentence without parole or declare Mr. Jones's conviction for Capital Murder void in the absence of any legal punishment the Court can lawfully impose." Id. at 62.

         The motion to vacate, however, made no factual proffer and left the question whether to hold an evidentiary hearing entirely within the discretion of the trial court. The motion requested that the trial court "grant Mr. Jones an evidentiary hearing on the claims presented in this Motion" only "if the Court determine[d] there [was] a need for further factual development." Id. The trial court denied the motion "after review of the case file and the defendant's motion, " observing that Jones presented "nothing new in mitigation of the offense." Id. at 65.

         On appeal of the trial court's denial of the motion to vacate, we "h[e]ld that because the trial court ha[d] the ability under Code § 19.2-303 to suspend part or all of the life sentence . . ., the sentencing scheme applicable to Jones's conviction was not a mandatory life without the possibility of parole scheme." Jones I, 288 Va. at 477, 763 S.E.2d at 823. Thus, we reasoned, Miller was inapplicable to the Virginia sentencing law at issue "even if it is to be applied retroactively." Id. at 481, 763 S.E.2d at 826.

         We came to this conclusion because Virginia law does not preclude a sentencing court from considering mitigating circumstances, whether they be age or anything else. To be sure, sentencing statutes specifically authorize a trial court to do so, even to the point of suspending entirely a life sentence so that the offender never spends a day in prison. See Code § 19.2-303. Nor does Virginia law make "youth (and all that accompanies it) irrelevant" to the court's sentencing discretion. Miller, 567 U.S. at___, 132 S.Ct. at 2469. Nothing in the statutory suspension power suggests that the offender's youth should be legally irrelevant to the exercise of the sentencing court's discretion.

         Dissatisfied with our reasoning, Jones filed a petition for certiorari to the United States Supreme Court arguing that he never truly had the mitigation opportunity. Despite the unqualified text of Code § 19.2-303 authorizing the power of suspension and our unanimous opinion applying it to his case, Jones argued that we were plainly wrong: "Because life without parole is the only sentence (other than death) authorized under Virginia's capital murder statute, the Virginia Supreme Court's characterization of that sentence as 'not mandatory' rings hollow." Pet. Cert. at 9 n.2 (emphasis in original).

         Jones's petition for certiorari did not call attention to conflicting prior precedent or suggest that we had abruptly changed course in established legal doctrine governing the suspension power of a sentencing court. Neither did his petition put forward any legal analysis suggesting that our application of Code § 19.2-303 to life sentences rested upon a flawed statutory interpretation. Instead, he merely argued that the power to suspend a life sentence (even to the point of not serving a day in prison) was an insufficient "opportunity" for the sentencing court to take into account "mitigating circumstances before imposing the harshest possible penalty for juveniles." Miller, 567 U.S. at___, 132 S.Ct. at 2475; see also Pet. Cert. at 13-15.

         Before ruling on the merits of Jones's petition, the United States Supreme Court issued Montgomery v. Louisiana, which decided the "question whether Miller's prohibition on mandatory life without parole for juvenile offenders indeed did announce a new substantive rule that, under the Constitution, must be retroactive." 577 U.S. at___, 136 S.Ct. at 732. Montgomery held that Miller was retroactive, and thus, juvenile defendants "must be given the opportunity [at the time of sentencing] to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored" by the possibility of future parole. Id. at___, 136 S.Ct. at 736-37 (emphases added).[3] Like the sentencing statutes reviewed in Miller, the Louisiana law addressed in Montgomery forbade the sentencing court from suspending in whole or in part the life sentence without parole in capital cases. See La. Stat. Ann. § 14:30(C)(1) ("If the district attorney seeks a capital verdict, the offender shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence . . . ." (emphasis added)).

         The holding in Montgomery tracked that in Miller: State law cannot impose "mandatory" penalties that make "youth (and all that accompanies it) irrelevant" to the decision to imprison a juvenile for life without parole. Montgomery, 577 U.S. at___, 136 S.Ct. at 726 (quoting Miller, 567 U.S. at___, 132 S.Ct. at 2469). Mandatory sentencing statutes, "by their nature, preclude a sentencer from taking account of an offender's age and the wealth of characteristics and circumstances attendant to it." Miller, 567 U.S. at___, 132 S.Ct. at 2467 (emphasis added). It was this legal preclusion that Miller and Montgomery deemed unconstitutional. If a mandatory sentencing statute has that effect, it can survive constitutional scrutiny only if the "possibility of parole, " id. at___, 132 S.Ct. at 2469, gives the prisoner a "hope" that he will not "die in prison, " Montgomery, 577 U.S. at___, 136 S.Ct. at 736-37.

         Roughly 40 petitions for certiorari implicating Miller were before the United States Supreme Court at the same time as Jones's petition. The Court decided them all on the same day and issued a two-sentence order in each case, stating as applicable, "Petition for writ of certiorari granted. Judgment vacated, and case remanded . . . for further consideration in light of Montgomery v. Louisiana, 577 U.S.___, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016)." Jones v. Virginia, ___ U.S.___, ___, 136 S.Ct. 1358, 1358 (2016) (per curiam).[4]

          In each of these orders, Justices Thomas and Alito filed a concurring statement explaining the Court's precise holding:

The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner's asserted entitlement to retroactive relief "is properly presented in the case." Id., at, 136 S.Ct. at 732, 193 L.Ed.2d at 617.

Jones v. Virginia, US,, 136 S.Ct. 1358, 1358 (2016) (Thomas, J, concurring).

         The concurrence clarified, without any suggestion to the contrary in the majority's form order, what the remand order did not do:

On remand, courts should understand that the Court's disposition of this petition does not reflect any view regarding petitioner's entitlement to relief. The Court's disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner's sentence actually qualifies as a mandatory life without parole sentence.

Id. (emphases added).

         II.

         On remand, Jones seeks a vacatur of his life sentence on several interdependent grounds. Under his view of Miller and Montgomery, Jones contends that we must order the trial court to resentence him to a specific term of years (not life) and to ensure that the term of incarceration is not long enough to be the "functional equivalent of a life sentence." Appellant's Remand Reply Br. at 9, 14. We find none of Jones's arguments persuasive.[5]

         A.

         Jones first argues that we should hold - contrary to Jones I - that his life sentence was a mandatory life sentence in violation of Miller. We decline the invitation to do so.

         1.

         As Jones I observed, the General Assembly has carefully distinguished between "mandatory minimum sentence[s]" that cannot be suspended and non-mandatory minimum sentences that can be. Jones I, 288 Va. at 479-80, 763 S.E.2d at 825.[6] "Only where the General Assembly has prescribed a mandatory minimum sentence imposing an inflexible penalty has it 'divested trial judges of all discretion respecting punishment.'" Id. at 479, 763 S.E.2d at 825 (quoting In re: Commonwealth, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985)).[7] What is true for term-of-years sentences is just as true for life sentences. Unless a statute precludes the exercise of such discretion, Virginia trial courts can - and do - suspend life sentences.[8] Jones has offered no persuasive reason to us, either before or after Jones I, in support of the thesis that life sentences are exempt from the judicial power of suspension. Consequently, we reaffirm Jones I's holding that, under Virginia law, "the trial court ha[d] the ability under Code § 19.2-303 to suspend part or all of the life sentence, " and thus, "the sentencing scheme applicable to Jones's conviction was not a mandatory life without the possibility of parole scheme." 288 Va. at 477, 763 S.E.2d at 823.

         2.

         Whether a state sentencing statute authorizes or precludes judicial discretion is a matter solely governed by state law. In the companion case addressed in the Miller opinion, the United States Supreme Court reaffirmed that whether a state sentencing statute is mandatory (that is, precludes the possibility of mitigation of the prescribed punishment) is a decision to be made by "state courts." Miller, 567 U.S. at___ n.2, 132 S.Ct. at 2462 n.2. When a state court treats a sentencing statute as "mandatory, " the United States Supreme Court will "abide by that interpretation of state law." Id.[9]

         It follows that where, as here, a State's highest court treats a sentencing statute as non-mandatory (that is, provides an opportunity to seek mitigation of the prescribed punishment), the United States Supreme Court would abide by that interpretation of state law. We thus infer no disapproval in either Miller or Montgomery of our interpretation of Virginia's sentencing statutes. Nor do we believe it proper to read into the remand order "any view" on the question of "whether petitioner's sentence actually qualified as a mandatory life without parole sentence." Jones, ___ U.S. at___, 136 S.Ct. at 1358 (Thomas, J., concurring).

         B.

         Jones frames his next argument in equally absolute, but flawed, terms. "Montgomery confirmed, " Jones argues, "that Miller requires a hearing where youth and its attendant characteristics are considered as sentencing factors in order to separate those juveniles who may be sentenced to life without parole from those who may not. Virginia law does not provide for such hearing." Appellant's Remand Br. at 8. We disagree on several levels with this reasoning.

         1.

         As Montgomery explained, the mandatory, life-without-parole sentence under Louisiana law violated Miller because it gave the juvenile defendant "no opportunity to present mitigation evidence to justify a less severe sentence." Montgomery, 577 U.S. at___, 136 S.Ct. at 726 (emphasis added).[10] Like the sentencing statutes in Miller, the Louisiana statute imposing a sentence of life imprisonment on Montgomery was not subject to suspension in whole or in part by the sentencing court. See La. Stat. Ann. § 14:30(C)(1). Thus, as was the case in Miller, the state sentencing law at issue in Montgomery precluded the juvenile defendant from either seeking mitigation of his sentence or offering any evidence in support of such a request.

         In Virginia, however, a criminal defendant has a statutorily provided opportunity to present mitigation evidence at his sentencing hearing.[11] If relevant and admissible, evidence in mitigation of punishment can be presented unless the punishment imposed is a mandatory, fixed sentence that cannot be varied in any degree.[12] This principle is no less true in Jones's case than in any other criminal case. Moreover, Virginia's sentencing laws - unlike the laws found unconstitutional in Miller - authorized the sentencing court to suspend Jones's life sentence in whole or in part. Nothing in Virginia law denied Jones the opportunity to request a suspension and to present evidence of his "youth and attendant characteristics, " Montgomery, 577 U.S. at___, 136 S.Ct. at 734, in support of a suspended sentence. Jones was never denied this constitutionally required opportunity. For the certainty of a plea agreement, he simply chose not to exercise it.

         2.

         Jones's argument to the contrary seems oblivious to the fact that he entered into a plea agreement in which he stipulated to a life sentence "without the possibility of parole" on the capital murder charge. See J.A. at 45.[13] He also agreed "to waive any and all rights of appeal with regard to any substantive or procedural issue involved in this prosecution." Id. at 44. Consistent with the prevailing view, see 7 Wayne R. LaFave et al., Criminal Procedure § 27.5(c), at 86 (4th ed. 2015) (observing that "[m]ost courts, including all twelve federal courts of appeals with criminal jurisdiction, uphold appeal waivers"), [14] Virginia has long held that a criminal defendant can waive "his appeal of right" if the circumstances demonstrate "his decision to waive his appeal was made knowingly, voluntarily, and intelligently, " Davidson v. Commonwealth, 244 Va. 129');">244 Va. 129, 131, 419 S.E.2d 656, 658 (1992) (accepting waiver of right to appeal capital conviction but applying a specific statutory exception mandating limited appellate review of all death sentences).[15]

         In short, Jones was never denied the opportunity to offer mitigation evidence of his "youth and attendant characteristics, " Montgomery, 577 U.S. at___, 136 S.Ct. at 734, in support of a suspended sentence. He affirmatively waived that right as part of a negotiated plea agreement. 24 Daniel R. Coquillette et al., Moore's Federal Practice § 611.08[4][a], at 611-84 (Matthew Bender 3d ed. 2016) ("There is a 'presumption that legal rights generally, and evidentiary rights specifically, are subject to waiver by voluntary agreement of the parties.' A plea of guilty entered on the competent advice of counsel will be held to waive all constitutional objections to the conviction . . . unless the jurisdiction in which the case arises specifically permits appeals on those issues, even after a plea of guilty." (footnote omitted) (quoting United States v. Mezzanatto, 513 U.S. 196, 203 (1995))). He also expressly waived his right to challenge his sentence on direct appeal and, a fortiori, on collateral attack. His present argument thus amounts to a challenge that he was never afforded an opportunity to present evidence that he never offered and to request relief that he never sought.

         Putting aside for the moment Jones's void-ab-initio contention, which we address in Part II(C) of this opinion, we fail to see how his Miller-Montgomery claim can be immunized from waiver principles that govern all other constitutional challenges. See, e.g., McDonald v. Commonwealth, 274 Va. 249, 255, 645 S.E.2d 918, 921 (2007) (holding that appellant had waived his facial constitutional challenge under Rule 5:25); Powell v. Commonwealth, 182 Va. 327, 336, 28 S.E.2d 687, 691 (1944) (affirming express waiver of various constitutional rights, including rights to counsel, to trial by jury, to sequester the jury, and to speedy trial); Brown v. Epps, 91 Va. 726, 737, 21 S.E. 119, 122 (1895) (observing, in a Sixth Amendment challenge, that it is "beyond a doubt" that "a prisoner may waive many of his constitutional rights").

         Nothing in Montgomery undermines settled waiver principles. Nor does the remand order do so. As the concurring Justices pointed out, the remand order disclaims any position whatsoever on "whether an adequate and independent state ground bars relief" or "whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief)." Jones, ___ U.S. at____, 136 S.Ct. at 1358 (emphasis added). We are thus free to employ traditional waiver principles applicable to plea agreements. Those principles, in our opinion, are dispositive in this case.

         C.

         Jones next addresses the fact that, at his original sentencing, he never asked for a mitigation hearing, never proffered any mitigation evidence, expressly stipulated to his life sentence as a condition of his plea agreement, and affirmatively waived any appellate challenge to his conviction or sentence. That is of no concern, Jones claims, because his sentence was void ab initio - a doctrinal "royal flush" that outranks any lesser hands of procedural default, estoppel, or even judicial stipulations.

         This assertion, however, presupposes that the trial court violated the Eighth Amendment by accepting Jones's Alford guilty plea and by imposing the life sentence Jones agreed to in the plea agreement. As Montgomery explained, a mandatory, life-without-parole sentence violates Miller when it provides the juvenile defendant "no opportunity to present mitigation evidence to justify a less severe sentence." Montgomery, 577 U.S. at___, 136 S.Ct. at 726 (emphasis added). Under Virginia law, Jones had such an opportunity. See supra Part II.B. He simply failed to exercise it.

         But even if, as Jones's logic implies, the trial court - over a decade ago - had a constitutional duty to force Jones to violate his plea agreement by requesting a partial or complete suspension of his stipulated sentence and then, whether requested or not, to order Jones to present mitigation evidence in support of an unrequested suspension, we would not hold that such a violation renders his sentence void ab initio. Nothing in Virginia or federal law compels us to do so, and we can think of no good reason why we should.

         1.

         In this case, as in most, whether an alleged error by a trial court renders its order void ab initio or merely voidable turns on the subtle, but crucial, distinction deeply embedded in Virginia law "between a court lacking jurisdiction to act upon a matter and the court, while properly having jurisdiction, nonetheless erring in its judgment." Kelley v. Stamos, 285 Va. 68, 75, 737 S.E.2d 218, 221-22 (2013). "In this context, a matter is void either because it has been null from the beginning (void ab initio) or because it is declared null although seemingly valid until that point in time (voidable)." Nelson v. Warden, 262 Va. 276, 285, 552 S.E.2d 73, 77-78 (2001). Significantly, "very few judgments are totally void and subject to attack at any time." Costello, supra note 11, § 62.12, at 1087.

         This distinction guards against the improper elevation of a court's failure "to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction." Nelson, 262 Va. at 281, 552 S.E.2d at 75; see also Burrell v. Commonwealth, 283 Va. 474, 480, 722 S.E.2d 272, 275 (2012). In this sense, a trial court has "jurisdiction to err" just as an appellate court has jurisdiction to correct such errors. Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 146 (1995) (citation omitted).

         As subtle as this distinction may be, it has a sharp impact on criminal cases. If a criminal defendant fails to preserve an issue in the trial court, he can waive claimed violations of his constitutional right to be free of unreasonable searches and seizures under the Fourth Amendment, [16] of his Miranda rights under the Fifth Amendment, [17] of his confrontation and speedy trial rights under the Sixth Amendment, [18] and even of his right to a jury trial under the Sixth Amendment.[19] None of these claims, even if conceded to be valid, renders the underlying judgment void ab initio. Procedural default principles, including Rules 5:25 and 5A:18, still apply, as do traditional finality principles protecting judgments no longer within the trial court's active jurisdiction. See supra notes 16-19 and accompanying text.[20]

         Jones contends that unlawful sentencing orders are different. He is right but not in the way he supposes. The jurisdictional power of a Virginia trial court to issue a criminal sentence depends upon the applicable sentencing statutes. See Kelley, 285 Va. at 76, 737 S.E.2d at 222 (acknowledging that "the Constitution of Virginia authorized the General Assembly to confer power upon the circuit courts" and ...


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