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Hackett v. Commonwealth

Supreme Court of Virginia

June 1, 2017

MATTHEW FITZGERALD HACKETT
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          OPINION

          DONALD W. LEMONS, CHIEF JUSTICE

         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 "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 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.
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, ...

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