COURT OF APPEALS OF VIRGINIA Present: Chief Judge Felton, Judges Kelsey and Petty Argued by teleconference

ROBERT THURMAN PILSON OPINION BY v. Record No. 0668-07-3 JUDGE D. ARTHUR KELSEY JULY 29, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE C. Carter Greer, Judge Perry H. Harrold for appellant. Kathleen B. Martin, Senior Assistant Attorney General (Robert F. McDonnell, Attorn ey General, on brief), for appellee.

The trial court convicted Robert Thurman Pils on of driving as an habitual offender in violation of Code § 46.2-357. Pilson was sentence d to one year of active incarceration pursuant to the statutory mandatory minimum sentence required by Code § 46.2-357( B)(3) (applicable to second or subsequent offenses). 1 At the sentencing hearing, the trial court de nied Pilson’s request to place him on home electronic monitoring in lieu of the one-year pe riod of mandatory incarceration. Pilson also asked the sentencing court to “let the sheriff impose” home electronic monitoring if the court

could not itself do so. The court lik ewise denied this request. “Wh ile it is true that the sheriff can impose it on his own,” the court stated from the bench, “it is the court’s opinion that he cannot do so when there is a mandatory minimum te rm of incarceration” required by statute. In its sentencing order, however, the court narrowed its holding on this point. The order stated that “the Court did not have the authority to authorize the Sheriff” to admit Pilson into the home

1 The sentencing order imposed a five-year se ntence, with four y ears suspended for a period of four years, coupled with a four-year period of probation.electronic monitoring program. J.A. at 35 (empha sis added). The court then released Pilson on an appeal bond. He has remained free on bond since then. On appeal, Pilson argues that the sentencing court erred (i) by refusi ng to order that his one-year mandatory minimum sentence be suspende d on condition that he participate in a home electronic monitoring program, and (ii) by “pr ohibiting” the sheriff from exercising any independent authority he might have to place P ilson in such a program. Appellant’s Br. at 4. We can summarily address Pilson’s first argum ent. The sentencing c ourt correctly held it had no authority to place Pilson on home electronic monitoring in lieu of his one-year mandatory minimum period of incarceration. “Because th e one-year mandatory minimum sentence under Code § 46.2-357(B)(2) may not be suspended, proba tion may not be imposed during this period and, thus, electronic incarcerat ion pursuant to Code § 53.1- 131.2 may not be employed.”

Cuffee-Smith v. Commonwealth , 39 Va. App. 476, 483, 574 S.E.2d 294, 297 (2002). As for Pilson’s second argument, we believe it overstates what the sentencing court actually held. Because a “circuit court speaks only through its orders,” Roe v. Commonwealth , 271 Va. 453, 458, 628 S.E.2d 526, 529 (2006), we look to the sentencing order — not the court’s

remark from the bench — to discern its holding. The sentencing order did not prohibit the sheriff from considering home electronic mon itoring. Instead, the order merely refused to authorize the sheriff to do so. By putting it that way, the court did nothing more than recognize how the statute subdivides decisionmaking au thority. Subsection A of Code § 53.1-131.2 governs the sentencing court’s authority to pla ce a defendant on home el ectronic monitoring. Subsection C governs the sheriff’s authority to do the same. As an independent constitutional officer, 2 the sheriff’s authority under subsecti on C does not depend upon prior authorization

- 2 - 2 See generally Jenkins v. Weatherholtz , 909 F.2d 105, 107 (4th Cir. 1990) (“In Virginia, a sheriff is an independent constitutional o fficer whose duties and authority are defined byfrom the sentencing order. Whatever authority the sheriff may have, it comes not from the sentencing order but from subsection C of th e statute. It is true that, if the sent encing court disagrees with the sheriff’s decision to place an offender in the home electronic monitoring program, the court retains “authority to remove the offender” from the program. Code § 53.1-131.2(C) (emphasis added). In our case, however, Pilson did not go to jail following his sentencing h earing. Nothing in the record suggests that

Pilson ever asked the sheriff to release him under the supervision of the home electronic monitoring program. Thus, the sheriff has never had an opportunity to decide whether he has statutory authority under Code § 53.1-131.2(C) to place Pilson — an inmate serving a mandatory, minimum sentence — into th e home electronic monitoring program. 3 Nor has the sheriff decided, assuming he has such authority, whether Pilson would be an appropriate candidate to be released from jail into the program. This discretionary decision would require consideration of Pilson’s prior criminal reco rd which includes, among other things, convictions for failure to appear, fel onious escape, eluding pol ice, resisting arrest, assaulting a police officer, es cape from custody, hit and run, assault and battery, destroying private property, trespass, breaking and entering, unlawful wounding, drunk driving, drunk in public, curse and abuse, several grand and petit larcenies, and various probation violations. Perhaps the sheriff might nonetheless find it in th e public’s interest to release Pilson. We are reluctant to offer a prediction one way or anot her. As Pilson’s counsel conceded at oral

statute.”); Hilton v. Amburgey , 198 Va. 727, 729, 96 S.E.2d 151, 152 (1957) (recognizing that “a sheriff is a constitutional officer and his duties are regulated and defined by the statute”); Narrows Grocery Co. v. Bailey , 161 Va. 278, 284, 170 S.E. 730, 732 (1933) (tracing the historical roots of the sheriff’s curren t status as a “constitutional officer”).

- 3 - 3 The Attorney General of Virginia has opined that “a sheriff has statutory authority to place a prisoner on home/electronic incarceration while the prisoner is serving a mandatory minimum sentence.” Opinion of the Atto rney General, 2006 Va. AG 173, 176, 2006 Va. AG L EXIS 53, *10 (Dec. 21, 2006). Given our holding, we express no opinion on this issue.- 4 - argument on appeal: “I don’t think we can speculate as to whethe r or not the sheriff would or would not” because “quite frankly, that issue has not been put before the sheriff as to Mr. Pilson himself.” Oral Argument at 1:58 (July 3, 2008). We could not agree more. Given these circumstances, we view the tria l court’s remark from the bench (concluding the sheriff had no independent authority) as an opinion on a hypothetical question not ripe for decision. For us to answer that question favorab ly to Pilson — by holding that the sheriff has authority to do under Code § 53.1-131.2(C) what a sentencing court cannot do under Code § 53.1-131.2(A) — we would essentia lly be issuing an advisory appellate opinion reversing an advisory trial court opinion. This we cannot do. “Advisory opinions represent an attenuate exercise of judicial power,” Va. State Police v. Elliott , 48 Va. App. 551, 553, 633 S.E.2d 203, 204 (2006), one which we traditionally avoid in all but the most extenuating circumstances.

None exist here. In sum, we find no error in the sentencing order, which we interpret as doing nothing more than recognizing th e limitations imposed by Cuffee-Smith on the court’s authority. Whether the sheriff has indepe ndent authority under Code § 53.1-131.2(C) to grant the relief Pilson seeks is a question to be an swered if and when the sheriff de cides to exercise that putative authority. Until then, the issue presents a purel y hypothetical question not ripe for appellate adjudication.

Affirmed.