COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Overton∗

Argued at Norfolk, Virginia 

ROBERT ALEX ESPARZA 

 OPINION BY 

v. Record No. 2602-97-1 JUDGE ROSEMARIE ANNUNZIATA 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

A. Bonwill Shockley, Judge 

 Edward W. Webb, Assistant Public Defender 

(Office of the Public Defender, on brief), 

for appellant. 

 Richard B. Smith, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

 At a hearing to determine whether the suspended portion of 

his sentence should be revoked, Robert Alex Esparza 

("appellant") moved the court to reduce his "period of active 

incarceration to time served." The court refused to entertain 

appellant's motion on its merits, stating that it had no 

authority to grant the motion because appellant was sentenced in 

accordance with an accepted plea agreement. Appellant appeals 

the court's refusal to hear his motion for sentence 

 

 ∗Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 
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modification. For the reasons set forth below, we affirm 

appellant's conviction. 

 I. 

 FACTUAL BACKGROUND 

 Appellant was indicted on two counts of felony forgery and 

two counts of felony uttering in violation of Code § 18.2-179. 

The appellant and the prosecution entered into a written plea 

agreement, which provided that, upon pleading guilty to all four 

charges, appellant would serve two years in prison for each 

forgery charge and one year for each uttering charge. The 

parties also agreed that five years of the six-year sentence 

were to be suspended on the condition that appellant be of good 

behavior for six years and pay court costs and restitution. On 

August 12, 1996, the trial court accepted the plea agreement and 

sentenced appellant accordingly, requiring him to report to the 

Virginia Beach Correctional Center on September 16, 1996 to 

begin serving his one year term of incarceration. 

 Appellant failed to report to the Correctional Center. On 

November 25, 1996, the circuit court ordered appellant to show 

cause why the suspended five years of his sentence should not be 

revoked. Following his arrest and the scheduling of a 

revocation hearing, appellant filed a "Motion for Sentence 

Modification," which asked the court to reduce his "period of 

active incarceration to time served." As grounds for this 

request, appellant cited: (1) his mother's health, which 
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required him to move to California to care for and financially 

support her, (2) his own "serious medical conditions," and (3) 

his gainful employment and good behavior following his 

convictions in 1996. 

 At appellant's revocation hearing on October 21, 1997, the 

judge heard argument on appellant's motion. Appellant's counsel 

argued: 

[T]he reason that [Mr. Esparza] did not show 

up for the jail time was because of the 

health of his mother. . . . [We are] asking 

the court to modify the original sentence to 

allow him to return to California [to help 

her]. In addition, he has developed extreme 

ill health problems related to his back. 

The trial court denied the motion, stating: 

I believe everything you’re telling me, but 

this defendant did sign a plea agreement. 

This was not [the trial judge's] sentence, 

and I don't think that I can change a 

written plea agreement that's been put into 

an order. I mean - and it's too late to - 

he entered a plea of guilty. The plea 

agreement has been accepted, and he's been 

sentenced according to the terms of the plea 

agreement. I don't think that I can amend a 

sentence that was made pursuant to a plea 

agreement. 

 After his motion was denied, appellant addressed the 

revocation issue, presenting evidence concerning his mother's 

illness, his own medical condition, and his employment 

activities since 1996. Notwithstanding appellant's evidence 

which he advanced to explain his failure to report to the 

Correctional Center when ordered by the court, the judge revoked 
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the five suspended years of appellant's sentence and 

re-suspended four of them, thus sentencing appellant to an 

additional one year term of incarceration.1

 Appellant contends the circuit court erred in refusing to 

entertain his motion for sentence modification at his revocation 

hearing. We agree. 

 Code § 19.2-303 states: 

If a person has been sentenced for a felony 

to the Department of Corrections but has not 

actually been transferred to a receiving 

unit of the Department, the court which 

heard the case, if it appears compatible 

with the public interest and there are 

circumstances in mitigation of the offense, 

may, at any time before the person is 

transferred to the Department, suspend or 

otherwise modify the unserved portion of 

such a sentence. The court may place the 

person on probation for such time as the 

court shall determine. 

 The issue on appeal is a matter of first impression under 

Virginia law. We hold that Code § 19.2-303 reflects the 

legislature's intent to provide for review and suspension of 

sentences imposed for all felony convictions provided the 

 1In pronouncing its ruling, the judge stated: 

Mr. Esparza, the court might have been a lot 

more sympathetic had you gone [to 

California] and set up some mechanism and 

gotten [your mother] organized and then come 

back voluntarily to serve your time; but we 

had to come and get you out there. You are 

in violation. You had a year to serve. 
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defendant has not been sent to the Department of Corrections.2 

The provision becomes effective post-sentencing and, in the 

absence of limiting language, we conclude the legislature did 

not intend to limit the application of Code § 19.2-303 to cases 

of convictions obtained upon a plea of not guilty or an open 

plea entered without agreement. 

 The Commonwealth cites People v. Evans, 673 N.E.2d 244 

(1996), in support of its argument that the court is without 

authority to modify a sentence under Code § 19.2-303 when the 

sentence is imposed pursuant to a plea agreement.3 The court in 

Evans essentially premised its disposition on contract 

principles as applied to plea agreements. See id. at 247-48. 

In addition, the terms of the Illinois rule construed in Evans

differ from, and were adopted to serve an entirely different 

purpose than those contained in Code § 19.2-303.4

 

 2We do not reach the question of whether Code § 19.2-303 

provides authority for the court to modify a sentence by 

increasing or decreasing the term of years imposed upon 

conviction, as that issue is not before us. 

 3

In Evans, the Supreme Court of Illinois, construing 

Illinois’ Rule 604(d), found that modifying a sentence entered 

pursuant to a plea agreement would controvert its policy of 

encouraging properly administered plea bargains and held that 

the Rule did not apply to cases involving negotiated plea 

agreements. 673 N.E.2d at 248-50. 

 4Rule 604(d) prohibits defendants from appealing the 

judgment of a court that was entered upon a plea of guilty 

unless the defendant first moves that court to reconsider its 

sentence within a definite time period. See Evans, 673 N.E.2d 

at 248. The purpose of this Rule is "to reduce the large number 

of appeals being taken from guilty pleas." Id.
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 Even if we applied the Evans contract analysis urged by the 

Commonwealth, we would hold that the trial court possessed power 

to act under Code § 19.2-303, notwithstanding the execution of a 

plea agreement. A basic rule applied when construing contracts 

is that the law in force on the date a contract is formed 

determines the rights of its parties. Paul v. Paul, 214 Va. 

651, 653, 203 S.E.2d 123, 125 (1974) ("The law effective when 

the contract is made is as much a part of the contract as if 

incorporated therein."); Citizens Mut. Bldg. Assoc. v. Edwards, 

167 Va. 399, 404, 189 S.E. 453, 455 (1937). Code § 19.2-303 was 

in effect when the plea agreement was executed, and when the 

court accepted it and imposed sentence accordingly. It follows 

that the code provision for modification of sentence 

post-conviction must be read as forming part of that agreement. 

 Furthermore, the purpose of the statute may be considered 

in determining whether a felony conviction entered pursuant to a 

plea agreement is embraced within its terms. See Stanley v. 

Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382 (1925) (stating 

that, when a court must determine whether something is embraced 

within the terms of a statute, the statute should be construed 

"'with reference to its subject matter, and the object sought to 

be obtained, as well as the legislative purpose in enacting it; 

and its language should receive that construction which will 

render it harmonious with that purpose rather than that which 

will defeat it.'" (quoting Mapp v. Holland, 138 Va. 519, 527, 
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122 S.E. 430, 433 (1924))). See also Tobacco Growers' Coop. 

Ass'n v. Danville Warehouse Co., 144 Va. 456, 465, 132 S.E. 482, 

485 (1926) ("If possible, the language [of a statute] should 

always be so construed as to give effect to the statute['s 

purpose]."). The purposes of Code § 19.2-303 are rehabilitative 

in nature. See Dyke v. Commonwealth, 193 Va. 478, 484, 69 

S.E.2d 483, 486 (1952) (stating that Code § 53-272, a 

predecessor of Code § 19.2-303, should be liberally construed so 

as to "afford to trial courts a valuable means of bringing about 

the rehabilitation of offenders against the criminal laws"). We 

find nothing in the statutory scheme as articulated by the 

legislature to suggest that the post-sentencing rehabilitative 

purposes and goals of Code § 19.2-303 are inapplicable to felons 

convicted pursuant to a plea agreement. 

 The Commonwealth also argues that under Rule 3A:8(c)(3) and 

(4), a trial court has no authority to modify a sentence entered 

pursuant to a plea agreement.5 This argument essentially invokes 

the application of the same contract analysis, which we have 

determined is not conclusive in this case and which, as noted, 

fails to support the Commonwealth's position. The Commonwealth 

also invokes case law governing the post-sentence withdrawal of 

 

 5Rule 3A:8(c)(3) states "[i]f the court accepts [a] plea 

agreement, the court shall inform the defendant that it will 

embody in its judgment and sentence the disposition provided for 

in the agreement." Rule 3A:8(c)(4) provides that if the court 

rejects the proposed plea, "neither party shall be bound by the 

plea agreement." 
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guilty pleas, which is premised on principles likewise not 

applicable here. See Holler v. Commonwealth, 220 Va. 961, 265 

S.E.2d 715 (1980); Lilly v. Commonwealth, 218 Va. 960, 243 

S.E.2d 208 (1978). 

 Finally, the Commonwealth argues that modification of a 

sentence imposed pursuant to a plea agreement is incompatible 

with the public interest. We find this argument inapposite to 

the issue presented. Consideration of the public interest, 

while pertinent to the disposition of the motion to modify a 

sentence pursuant to Code § 19.2-303, is not determinative of 

the jurisdictional question raised here. The Commonwealth's 

argument that appellant failed to mitigate his offense as 

required by Code § 19.2-303 is likewise misplaced because it 

addresses the merits of the motion and not the jurisdictional 

arguments appellant presents. 

 In sum, we hold that Code § 19.2-303 invests courts with 

discretionary authority to modify a sentence post-conviction in 

all felony cases, including those in which the defendant has 

been sentenced pursuant to a plea agreement so long as the 

defendant is in the local jail and has not been delivered to the 

Department of Corrections. The trial court's determination to 

the contrary was, therefore, erroneous. 

 We find the court's error, however, to be harmless. A 

nonconstitutional error is harmless when "it plainly appears 

from the facts and circumstances of a particular case that [it] 
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did not affect the verdict . . . ." Lavinder v. Commonwealth, 

12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). 

"An error does not affect a verdict if a reviewing court can 

conclude, without usurping the [trial court's] fact finding 

function, that, had the error not occurred, the verdict would 

have been the same." Id.

 In this case, it plainly appears from the record that 

appellant's motion for sentence modification would have been 

denied had the court entertained it. The court faced two 

questions at appellant's revocation hearing, viz., whether to 

grant appellant's motion for sentence modification under Code 

§ 19.2-303 and whether to revoke the suspended portion of 

appellant’s sentence under Code § 19.2-306. Both statutes serve 

the same rehabilitative purpose. See Grant v. Commonwealth, 223 

Va. 680, 684, 292 S.E.2d 348, 350 (1982) (stating that probation 

statutes are highly remedial, and analyzing Code § 19.2-306 in 

that light).6 Thus, we may presume the court considered this 

 

 6Whether the issue before a court involves the revocation of 

sentence under Code § 19.2-306 or suspension of sentence under 

§ 19.2-303, the considerations underlying the court's decision 

are the same. In Virginia, statutes providing for the 

imposition or revocation of suspended sentencing are highly 

remedial and exist, inter alia, for the purpose of furthering 

the rehabilitation of the accused. See Slayton v. Commonwealth, 

185 Va. 357, 365-66, 38 S.E.2d 479, 483 (1946) (stating that the 

purpose of a predecessor to §§ 19.2-303 and 19.2-306 is to 

"restor[e] to a useful place in society an offender who is a 

good social risk"); Richardson v. Commonwealth, 131 Va. 802, 

811, 109 S.E. 460, 462 (1921) (examining Virginia's original 

statute on the subject of sentence suspension and revocation of 

suspension, and stating that the statute is "highly remedial"). 
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rehabilitative purpose when it revoked appellant's suspended 

sentence and imposed a portion of the suspended sentence. See

Samuels v. Commonwealth, 27 Va. App. 119, 129, 497 S.E.2d 873, 

878 (1998) (stating that every act of a court of competent 

jurisdiction is presumed to have been rightly done). Further, 

although the court never ruled on appellant's motion, appellant 

relied on identical grounds and presented identical evidence to 

support his position as to both questions raised at the hearing, 

viz., his mother's medical condition and needs, his personal 

medical condition, and his gainful employment following 

conviction in 1996. As is manifest in the record, the court 

considered appellant's evidence and arguments when deciding to 

revoke the suspended sentences. Having done so, the court 

imposed a portion of the suspended sentences, requiring 

appellant to serve two years of incarceration rather than one 

year as originally sentenced pursuant to his plea agreement. 

Because the court imposed a sentence in conjunction with the 

revocation proceeding that was longer than that sought by 

appellant in his motion to reduce his sentence to "time served," 

and because the court, in doing so, based its ruling on the same 

grounds, the same evidence, and the same sentencing 

considerations that it would have considered had it entertained 

 

See generally W. LaFave & J. Israel, Criminal Procedure

§§ 25.3(a-b), 25.4(a) (1984) (stating that the state's interest 

in rehabilitating an offender and insuring the public safety is 

relevant to both the granting and revocation of probation). 
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appellant's motion for a reduced sentence, we hold that the 

trial court's refusal to entertain the motion was harmless. 

 Accordingly, we affirm appellant's conviction. 

 Affirmed.
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Benton, J., concurring, in part, and dissenting, in part. 

 I concur in the majority opinion's holding "that Code 

§ 19.2-303 invests the [trial judge] with discretionary 

authority to modify a sentence post-conviction in all felony 

cases, including those in which the defendant has been sentenced 

pursuant to a plea agreement." However, I dissent from its 

further holding that the trial judge's contrary ruling was 

harmless error. 

 The trial judge had before her two distinct matters -- the 

Commonwealth's motion to revoke Robert Esparza's suspended 

sentence and Esparza's motion to reduce his sentence of one year 

of active incarceration to the time he had already served. That 

the trial judge believed Esparza should receive punishment for 

violating the terms of his suspended sentence does not mean, a

fortiori, that the trial judge would not have reduced Esparza's 

original sentence of active incarceration to time served if she 

believed she had the authority to so do. Certainly, the trial 

judge could have concluded that because she had no authority to 

modify the active sentence and because Esparza would be 

incarcerated for a year, the revocation of one year of the 

suspended sentence was not significantly burdensome. 

 The trial judge enjoys wide discretion in applying Code 

§ 19.2-303. Therefore, I believe we cannot presume that the 

result the trial judge reached upon application of a faulty 

premise foretells what the trial judge would have done had she 
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known the full and proper extent of her authority. In view of 

the significant error and the minimal inconvenience to the 

proper administration of justice, I would remand this matter to 

the trial judge for reconsideration.