COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Haley and Powell Argued at Alexandria, Virginia

RAFAEL HERNANDEZ OPINION BY v. Record No. 1892-08-4 J UDGE JAMES W. HALEY, JR. NOVEMBER 17, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge Paul E. Pepper, Deputy Public Defender (Office of the Public Defender, on brief), for appellant. Eugene Murphy, Seni or Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

I. INTRODUCTION The issue here for resolution may be stated as follows: Does a trial court have the inherent authority to dismiss cr iminal charges on grounds other th an the legal or factual merits, when such a dismissal is not authorized by statute? We conclude a trial court does not have such inherent authority. However, we do not address the question as to whether a court has th e authority, with the agreement of the Commonwealth and the defendant, to order a dismissal or other disposition of criminal charges, when such a dismissal or ot her disposition is not otherwise authorized by

statute.-2- II. BACKGROUND The relevant facts may be succinctly stated. Rafael Hernandez was tried by a court upon a charge of feloniously assaulting a police officer, in violation of Code § 18.2-57(C). A c onviction requires the imposition of “a mandatory minimum term of confinement of six months.” The statute makes no provision for any deferred finding of guilt or disposition. At the conclusion of the evidence, counsel for Hernandez conceded that: “I know my client has done wrong.” However, relying upon Moreau v. Fuller , 276 Va. 127, 661 S.E.2d 841 (2008), he maintained that the trial court had “the inherent authority . . . to either defer findings or else find guilt and defer sentencing and ultimately dismiss the case. ” (Emphasis supplied). 1 Counsel continued: “So I ask that you suspend disposition of sentence and if he complies say with community service or whatever he has to do and if he’s [sic] complied with every condition you may impose on him that you dismiss the case .” (Emphasis supplied). Significantly, the Commonwealth’s attorney ar gued that, under the statute, the trial court did not have such inhere nt authority and, further, refu sed to agree to Hernandez’s proposed deferral or disposition. The trial court held it did not have such “inherent authority” in this case, found Hernandez guilty, and sentenced him to eleven months in jail, all suspended except the six months mandatory minimum.

1 The question presented reads: “Whether the trial court erred in concluding that it lacked the inherent authority to continue appellant’s case for future dispos ition.” As noted at trial, the only future disposition sought was dismissal. At oral argument, counsel for appellant reiterated that the refined issue before the court invol ved only dismissal as a future disposition.-3- III. ANALYSIS
A. Inherent Power of Courts It is without question that c ourts possess the inherent power of contempt. “The power to fine and imprison for contemptis is incident to every cour t of record. The courts, ex necessitate
rei , have the power of protecting the ad ministration of justice . . . .” Wells v. Commonwealth , 62 Va. (21 Gratt.) 500, 503 (1871). That power “i s inherent in all courts . . . .” Carter’s Case , 96 Va. 791, 808, 32 S.E. 780, 782 (1899). “Such power is inherent in the nature and constitution of
a court.” Holt v. Commonwealth , 205 Va. 332, 336, 136 S.E.2d 809, 813 (1964), rev’d on other grounds , 381 U.S. 131 (1965). “The power of courts to punish for contempt is inherent and an important and necessary arm in the proper discharge of the functions committed to them by fundamental law.” Nicholas v. Commonwealth , 186 Va. 315, 321, 42 S.E.2d 306, 309 (1947). Nonetheless, “[it] is proper for the Legislat ure to regulate the exer cise of the power so long as it confines itself within limits consistent with the preservation of the authority of courts to enforce such respect and obedience as is necessary to their vigor and efficiency.” Carter’s
Case , 62 Va. at 808, 32 S.E. at 782. See Title 18.2, Chapter 10, Article 5, § 18.2-456 et seq

. (containing limitations imposed by the legislature upon the inherent contempt power of a court). The power to order restitution is another ar ea addressed by the jurisprudence defining the inherent power of courts.
In Flemings v. Riddick’s Executor , 46 Va. (5 Gratt.) 272, 280-81 (1848), the Supreme Court of Appeals affirmed a tria l court’s inherent power to orde r restitution when a: “[c]ourt whose judgment or decree is reversed . . . havi ng by its own act occasi oned the wrong, possesses an inherent and summary jurisdiction to afford the redress, without refe rence to the peculiar nature of the controversy which it had erroneously determined.”-4- In Reid v. Reid , 14 Va. App. 505, 511, 419 S.E.2d 398, 402 (1992) ( en banc ), this Court held the trial court had the aut hority to order restitution from a spouse who had received spousal support payments pursuant to a court order subse quently reversed on appeal. We found that authority in Code § 20-107.1 2 and in “[t]he legal and proper inherent power [of a court] ‘to repair an injury occasioned by its own wrongful adjudication.’ Flemings , 46 Va. (5 Gratt.) at
281.” Id. The Virginia Supreme Court reversed in Reid v. Reid , 245 Va. 409, 429 S.E.2d 208 (1993), finding the trial court had ne ither statutory nor inherent pow er to order restitution. The Court wrote: “But more important, the inherent authority discussed in Flemings is not absolute. For example, while courts possess ‘an inherent po wer of self-defense a nd self-preservation way of contempt . . . [citing ’ by
Carter’s Case ] . . ., the power may be regulated by legislative enactment, provided it is no t ‘destr oyed, or so diminished as to be rendered ineffectual.’” Id. at 413-14

aid.” Id. , 429 S.E.2d at 210. The Court further noted that Code § 20-107.1 authorized spousal s upport at the time of entry of a divorce decree. But “[r]estitution is the recovery of money already p at 412, 429 S.E.2d at 209. Thus, there was no st atutory authority to order restitution. The Co ce of

de urt continued: Nor do we find persuasive Dr. Reid ’s argument that the absen an explicit statutory prohibiti on against granting restitution supports the existence of implie d statutory authority to order restitution. The General Assembly did not ignore the possibility of altering spousal support awards retroactivel y, which would effectively occur if restitution we re ordered. Provision was ma for retroactive treatment when “proceedings are reopened to increase, decrease or terminat e maintenance and support for a spouse . . .” but only “with resp ect to any period during which there is a pending petition for modification, but [even then] only from the date that notice of such petition has been given to the

2 “Upon . . . decreeing a divorce . . . the court may make such further decrees as it shall deem expedient concerning the maintenance and support of the spouses.”-5- contradict the existence of implie d authority to grant such relief. responding party.” Code § 20-112. . . . Indeed, the provisions Id. at 412-13, 429 S.E.2d at 209-10. “[W]e think that the legis lature has m odified the inherent power described in Flemings

. ” Id. at 415, 429 S.E.2d at 211. The General Assembly, by granting author ity to courts to act in designated circumstances, negates any implied or inhere nt authority of a cour t to act in similar circum
As stances not designated. Legislative enactment may circumscribe the power of a court to impose punishment. we noted in Podracky v. Commonwealth , 52 Va. App. 130, 143, 662 S.E.2d 81, 88 (2008): “Chief Justice Marshall wrote that ‘[t]he power of punishment is ve sted in the legislative, not in the judicial department. It is th e legislature, not the Court, which is to define a crime, and its punishment.’ ordain United States v. Wiltberger , 18 U.S. (5 W heat.) 76, 95 (1820). See also Dowlin g v. United States , 473 U.S. 207, 213-14 (1985).” Subject to the restriction of the Double Jeopardy Clause of the Constitution, “The legislature retains plenary discre tion to ‘determine the appropriat e “unit of prosecution’” and to punish each violation separately. Nelson v. Commonwealth , 41 Va. App. 716, 740, 589 S.E.2d 23, 35 (2003) (citation omitted ), aff’d on other grounds , 268 Va. 665, 604 S.E.2d 76 (2004); s ee Mason v. Commonwealth , 49 Va. App. 39, 46, 636 S.E.2d 480, 483 (2006).” De’Armond v. Commonwealth , 51 Va. App. 26, 32-33, 654 S.E.2d 31 7, 320 (2007). A trial court has no inheren Commonwealth t power to disregard this legislative discretion.
In Lilly v. , 50 Va. App. 173, 187-88, 647 S.E.2d 517, 524 (2007), this Court observed

ce A : The legislative development of the mandatory minimum senten . . . produced a floor below whic h no judge or jury could go. trial court’s authority to depa rt downward below a mandatory minimum is “nonexistent,” Mouberry v. Commonwealth , 39 Va. App. 576, 585, 575 S.E.2d 567, 571 (2003), because the legislative purpose was to divest trial judges and juries of “all-6- discretion” to sentence be low the threshold minimum, In re Commonwealth of Virginia , 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985). Given this history, we find no basis for L illy’s characterization of mandatory mini mum sentences as a legislative
ar period of

. usurpation of a historically unique judicial function. Code § 19.2-295.2 authorizes a trial court to im pose a six-month to three-ye supervision upon release from active incarcer ation. The trial court imposed a jury recommendation of three years inca rceration for voluntary manslaughter 3 plus three years of post-release supervision. Arguing a violation of the separation of powers, the defendant argued that the legislature had ceded to the judiciary a legislative func tion, i.e., determining the actual maximum punishment. We rejected this reasonin g, holding that “the legi slature, not the trial court, established the range of punishment ,” by its enactment of Code § 19.2-295.2. Alston v Commonwealth , 49 Va. App. 115, 123, 637 S.E.2d 344, 348 (2006), aff’d , 274 Va. 759, 652 S.E.2d 456 (2007). See also Williams v. Commonwealth , 270 Va. 580, 621 S.E.2d 98 (200 Thus, the power to impose the post-r 7). elease period arises from the legislature, not from any inherent power of a court to punis h.
B. The Holding in Moreau We now address Moreau , 276 Va. 127, 661 S.E.2d 841. After hearing evidence concerning a misdem eanor charge of contributing to the delinquency of a minor, in vi olation of Code § 18.2-371, 4 a judge of the Juvenile and Domestic Relations District Court of the City of Danville entered an order containing the following: she found “Sufficient evidence to c onvict the defendant . . .,” id. at 131, 661 S.E.2d at 843; she held she had “the inherent authority to ta ke the matter under advisement . . .,” id. at 137, 661 S.E.2d at

3 As set forth in Code § 18.2-35, voluntary manslaughter is a Class 5 felony, which, pursuant to Code § 18.2-10, carries a maximu m punishment of ten years incarceration.

4 Code § 18.2-371 does not contain provisions au thorizing a court to defer disposition contemplating an ultimate dismissal of the charge.-7- 846-47; she concluded “[I]t [w]as appr opriate . . . to defer judgment,” id. at 132, 661 S.E.2d at 844; and she “continued” th e case to a later date. Id. The majority in Moreau carefully noted: “Contemporane ous records of the Juvenile and Domestic Relations District Cour t . . . indicated that if there were ‘no problems’ . . . the case would be dismissed. These contemporaneous reco rds were not in the form of an order.” Id. The Circuit Court of the City of Danville issued a writ of mandamus, requested by the Commonwealth’s Attorn ey, directing the juvenile and domes tic relations district court judge, since she had found the evidence sufficient to co nvict, to “perform th e ministerial act of making,” id. at 133, 661 S.E.2d at 844, “a determination as to the guilt or innocence of the accused . . . .” Id. at 132-33, 661 S.E.2d at 844. The majority discussed the separation of powers doctrine and noted that: “ although the subject matter of the judiciary’s power may, in some ways be limited by legislative action, the essential function of the judici ary—the act of rendering judgmen t in matters properly before it— may not be abridged by either the ex ecutive or legislative branches.” Id. at 136, 661 S.E.2d at 846 (emphasis supplied). The Court noted that: “it was within the inhere nt authority of the court to ‘take the matter under advisement’ or ‘continue the case for dispos ition’ at a later date. Such practices involve the essence of rendering judgment . . . . Nothing contained in the order is beyond the power of the court.” Id. at 137-38, 661 S.E.2d at 846-47. The majority dismissed the writ of manda mus, stating: “[W]e disagree that a determination as to the guilt or innocence of the accused is a mi nisterial function.” Id. at 138, 661 S.E.2d at 847. The majority continued: “W e hold that the act of rendering judgment is within the inherent power of th e court and that the very essen ce of adjudication and entry of judgment involves discretionary power of the court.” Id. at 139, 661 S.E.2d at 847-48.-8- After reciting those porti ons of the juvenile and domestic relations district court order quoted above, the majority wrote: What may in a proper case be reas onably subject to challenge is whether the judge may decline to render judgment and continue the case with or without terms akin to probation status with the promise from the court of a partic ular disposition at a later date. However, the case before us does not present such questions

. . . . [T]he underlying juvenile court or der in this case has no such terms or conditions and no provisi on of a future disposition. Id. at 137-38, 661 S.E.2d at 847 (emphasis supplied). As noted above, the “contemporaneous records” of the court did c ontain conditions and a promise of the future potential disposition of di smissal. These “records,” as the majority determined, did not constitute an order of the court. In footnote 5, the majority wrote: “To the extent that the decision of the Court of Appeals in Gibson v. Commonwealth , 50 Va. App. 285, 649 S.E.2d 214 (2007), is inconsistent with the holding of this case, it is expressly overruled. See also Gibson v. Commonwealth , 276 Va. 176, 180-81, 662 S.E.2d 54, 57 ( 2008) (this day decided).” 5

5 The concurrence in Moreau (Koontz, J.) noted that the majority properly limits its scope to issu es presented by the record on appeal. I write separately to stress that our decision in this case, as well as our decision in Gibson v. Commonwealth , 276 Va. 176, 662 S.E.2d 54 (2008) (this day decided), necessarily leaves unresolved a significant issue . . . [t]he issue . . . whether a trial court, at the request of the accused and with the agreement of the Commonwealth , may in the exercise of inherent authority decline to render a judgment in a criminal case and continue to permit the accused to satisfy terms akin to probation with the understanding that the court will ente r a particular disposit ion at a later date upon compliance by the accused with those terms . . . in those exceptional cases that warrant this practice.
Moreau , 276 Va. at 139, 661 S.E.2d at 848 (emphasis in original).-9- We also address Gibson , 276 Va. 176, 662 S.E.2d 54. An issue resolved was the criminal responsibility of an individual to pay over withholding taxes. Of relevance to this instant case, however, is the following from Gibson : The record reveals no additional requests or motions for deferral [of disposition]. Consequently, the trial court never denied such a request or motion. Accordingly, the issue present in Gibson’s fourth assignment of error, namely that the trial court “erred by not recognizing the courts [sic] author ity to defer findings of guilt absent a specific legislative gr ant of authority” is not properly before us because the record reflec ts no ruling of the trial court to that effect. We note that although the Court of Appeals addresses this issue in its opinion, the quest ion was not properly before the Court of Appeals for the same reason. Id. at 181, 662 S.E.2d at 57. Following the word “reason,” the Supreme Court inserted footnote 2, which reads as follows: “ See also Moreau v. Fuller , 276 Va. 127, 138, n.5, 661 S.E.2d 841, 847 n.5 (2008) (this day decided) (overruling Gibson v. Commonwealth , 50 Va. App. 285, 649 S.E.2d 214 (2007)[,] to the extent that it is incons istent with the holding in that case).” It is clear, manifestly clear, that the issu e presented in the case presently before this Court; that is, does a trial c ourt have the inherent author ity to defer judgment upon terms

We do note that: First, the structure of tripart ite government creates a judicial presumption in favor of “broad” prosecutorial discretion. See United States v. Armstrong , 517 U.S. 456, 465-65, 116 S. Ct. 1480, 1486-87, 134 L. Ed. 2d 687 (1996). “This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.” Wayte v. United States , 470 U.S. 598, 607, 105 S. Ct. 1524, 1530, 84 L. Ed. 2d 547 (1985). Boyd v. County of Henrico , 42 Va. App. 495, 521, 592 S.E.2d 768, 781 (2004) ( en banc ). See also George v. Commonwealth , 51 Va. App. 137, 142-43, 655 S.E.2d 43, 46 (2008); Bishop v. Commonwealth , 49 Va. App. 251, 260, 639 S.E.2d 683, 687 (2007), rev’d on other grounds , 275 Va. 9, 654 S.E.2d 906 (2008).- 10 - contemplating a future dismissal of criminal charges, especially without the agreement of the Commonwealth, was not decided in either Moreau or Gibson

. As Moreau instructs, a trial court has the i nherent power to take a case under advisement and to continue the same for future disposition—that dispos ition being “the act of rendering judgment.” Moreau , 276 Va. at 136, 661 S.E.2d at 846. That disposition, that inherent authority, includes the dismissal of a criminal charge. But, we believe, “ absent an express statutory grant, trial courts may not di smiss criminal charges on grounds other than the legal or factual merits. ” Holden v. Commonwealth , 26 Va. App. 403, 407, 494 S.E.2d 892, 895 (1998) (emphasis supplied). No court has the sole authority to dismiss a criminal charge for any reason not based upon the legal or factua l merits, unless authorized to do so by a legislature. To construe the i nherent power of a court to dism iss a criminal charge on a basis other than the legal or factual merits would, by such construction, potentially authorize judicial nullification of a legislative act, in violation of separation of powers. Once there is a finding of guilt (or a finding of evidence sufficient to support the same), or such a finding following a continuance to take that determination under advisement, the consequences of that finding; that is, a permissible punishment a court may impose, are circumscribed and delineated by the legislature. In accord with the se paration of powers, the responsibility for “fixing pe nalties are legislative, not judicial functions.” Cook v. Commonwealth , 20 Va. App. 510, 513, 358 S.E.2d 317, 319 (1995) (quoting United States v.
Evans , 333 U.S. 483, 486 (1948)). See also Falwell v. City of Lynchburg , 198 F. Supp. 2d 765, 775 (W.D. Va. 2002); Podracky , 52 Va. App. at 143, 662 S.E.2d at 88; De’Armond , 51 Va. App. at 32-33, 654 S.E.2d at 320; Lilly , 50 Va. App. at 187-88, 647 S.E.2d at 524; Alston , 49 Va. App. at 123, 637 S.E.2d at 348.- 11 - The General Assembly has granted courts the authority to defer findings of guilt contemplating a potential future dismissal of specifically designated criminal charges. These designations include marital rape, see Code § 18.2-61(C); marital forcible sodomy, see Code § 18.2-67.1(C), marital obj ect sexual penetration, see Code § 18.2-67.2(C), 6 and, first offender possession of controlled substance or marijuana, see Code § 18.2-251. Likewise included among crimes for which deferral and potential dismissal is authorized by the legislature is assault and battery upon a family or household member, pursu ant to Code § 18.2-57.3. No statute contains authorization for deferral and dismissal of a charge under C ode § 18.2-57(C), assault upon a police officer, the crime for which Hernandez was convicted. “To declare what the law is, or has been, is a judicial power; to decl are what the law shall be is legislative.” Commonwealth v. Gregory , 193 Va. 721, 726, 71 S.E.2d 80, 83 (1952) (quoting 50 Am. Jur., Statutes § 219, p. 198). As this Court noted in Finnerty v. Thornton Hall,
Inc. , 42 Va. App. 628, 635, 593 S.E.2d 568, 571 (2004) (quoting Marbury v. Madison , 5 U.S. (1 Cranch) 137, 177 (1830)), “[t]his axiom stems fr om basic principles of separation of powers. ‘It is emphatically the province and duty of the judicial department to say what the law is.’” But in that determination, the judiciary is to “asce rtain and give effect to the intention of the legislature.” Chase v. DaimlerChrysler Corp. , 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003). To ascertain that intention, a principle of statutory constructi on is here relevant: “Interpretation of the statute by comparison to other, similar stat utes supports this result . . . showing the General Assembly clearly knew how to limit a privilege . . . when it so desired.” Schwartz v. Schwartz , 46 Va. App. 145, 157-58, 616 S.E.2d 59, 66 (2006) (quoted with approval
in Marblex Design Intern., Inc. v. Stevens , 54 Va. App. 299, 304-05, 678 S.E.2d 276, 278

6 For a deferral and dismissal, this and the preceding two stat utes require “the consent of the complaining witness and the attorney for the Commonwealth . . . .” (Emphasis supplied).- 12 - (2009). See also , Martin v. Howard , 273 Va. 722, 726, 643 S.E.2d 229, 231-32 (2007); Hechler Chevrolet v. General Motors Corp. , 230 Va. 396, 401, 337 S.E.2d 744, 747 (1985). Succinctly stated: “The Legislature is presumed to know what it intends to do and can do.” Miller v. Commonwealth , 172 Va. 639, 649, 2 S.E.2d 343, 348 (1939). As contrasted above, Code § 18.2-57.3 aut horizes deferral and dismissal. Code § 18.2-57(C) does not. The trial court did not have the inherent power, as Hernandez asserts, to add, in effect, a provision gr anting deferral and dismissal from the former statute to the latter. This is true because ‘“[c]ourts cannot read into a statute something that is not within the manifest intention of the legislature as gathered from the statute itself.’” Stevens v. Commonwealth , 46 Va. App. 234, 245, 616 S.E.2d 754, 759 (2005) ( en banc ) (quoting Jordan v. South Boston , 138 Va. 838, 844-45, 122 S.E. 265, 267 (1924)), aff’d , 272 Va. 481, 634 S.E.2d 305 (2006). No court has the inherent po wer “to add to a statute language which the legislature has chosen not to include.” County of Amherst v. Brockman , 224 Va. 391, 397, 297 S.E.2d 805, 808 (1982). To recognize such an i nherent power would vi olate the separation of powers, as Chief Justice Marshall wrote, quoted above, “[t]he power of punishment is vested in the legislative, not in the judicial department.” Wiltberger , 18 U.S. (5 Wheat.) at 95. Affirmed.