THE COURT OF APPEALS OF VIRGINIA
W. LEMONS, CHIEF JUSTICE
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.
Facts and Proceedings
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.
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.
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.
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 "home-free from the felony." On December
23, 2009, the trial court entered an order placing Hackett on
intensive supervised probation for twelve months.
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."
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 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
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).
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
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.
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, ...