COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Huff, Judges Decker and O’Brien Argued at Alexandria, Virginia

DALE SMITH, A/K/A DALE C. SMITH, JR. v. Record No. 0610-15-4
COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY JUDGE MARY GRACE O’BRIEN DALE SMITH, A/K/A NOVEMBER 15, 2016 DALE C. SMITH, JR. v. Record No. 1097-15-4
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY Victoria A.B. Willis, Judge Amr A. Ahmed, Assistant Pu blic Defender, for appellant. Benjamin H. Katz, Assistant At torney General (M ark R. Herring, Attorney General, on brief), for appellee.
Dale Smith (“appellant”) pled guilty to violating probation, and the court imposed a previously suspended period of in carceration. Appellant filed a notic e of appeal to this Court. Shortly thereafter, defense counsel filed motions to withdraw as co unsel and to allow appellant to withdraw his guilty pl ea. The court held that it was divested of jurisdic tion to hear the motions because appellant filed his notice of appeal befo re filing the motions. Appellant asserts the following assignment of error: “[ t]he trial court erred when it found that it lacked jurisdiction to

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - suspend the imposition of sentence, grant a motion to wi thdraw as counsel, or hear a motion to withdraw a guilty plea.”
BACKGROUND In June 2014, appellant was sentenced to serve five years of incarceration, with four years and six months suspended, for the crime of grand larceny. The co urt ordered appellant to comply with five years of supervised probation upon his release. Following appellant’s release, he was charged with new offenses. Appellant pled guilty to violating his probation, and in an order dated April 13, 2015, the court imposed the previously suspended sentence. On April 16, 2015, appellant filed a notice of appeal. Appellant’s attorney filed a motion to withdraw as co unsel on April 17, 2015 because he anticipated that appellant would raise an ineffective as sistance of counsel claim in his appeal. Counsel also noted that appellant had advised him that he wished to withdraw his plea of guilty to the probation violation. Because appellant was bein g held in another jurisd iction and it was difficult to have him transported for a hearing, on May 4, 2015, the court granted defense counsel’s motion to suspend the execution of the sentencing order, thereby tolling the 21-day provision of Rule 1:1. The court set a hearing date for appellant’s motion to withdraw his guilty plea and counsel’s motion to withdraw from representing appellant. On June 9, 2015 , the court held sua sponte that it lost jurisdiction to hear the motions to withdraw the guilty plea a nd withdraw as coun sel when appellan t noted his appeal on April 16. Therefore, the court ruled that the May 4 order su spending the execution of the sentencing order was improvidently entere d and void. Appellant appeals this ruling.
ANALYSIS “In its review, [the appellate court] . . . give[s ] deference to the trial court’s findings of fact, but review[s] the trial court’s ‘statutory interpretations and legal conclusions de novo .’” Brown v.- 3 - Commonwealth, 57 Va. App. 38 1, 390, 702 S.E.2d 582, 58 6 (2010) (quoting Sink v. Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998)). Ac cordingly, whether the trial court had jurisdiction to consider the moti ons is a question of law we review de novo

. Initially, the Commonwealth argu es that Rule 5A:18 precludes consideration of appellant’s argument that the court erred in co ncluding that it lacked jurisdiction. Rule 5A :18 states that “[n]o ruling of the trial court . . . will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the rulin g, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.” At the June 9 hearing, when the court rule d that it did not have jurisdiction to hear appellant’s motion to wi thdraw his guilty plea, defense counsel stated: Judge, I’d just note ou r objection for the reco rd because there is a new motion to withdraw the guilt y plea that our office can’t effectively represent him on, an d it needs to be done within twenty-one days of th e order being signed. So the Court’s order is effec tively going to be denying him the opportunity to request a motion to withdraw his guilty plea as allowed by statute. Additionally, the final order holding that the cour t did not have jurisdiction contains the words: “[t]he [c]ourt notes the objectio n of counsel for the defendant.” The Commonwealth contends that defense counsel did not assert with specificity that the court was no t divested of jurisdiction by the filing of a notice of appeal. S ee Correll v. Commonwealth, 42 Va. App. 311, 324, 59 1 S.E.2d 712, 719 (2004) (“The same argu ment must have been raised, with sp ecificity, at trial before it can be considered on appeal.”). We decline to dismiss the petition for appeal on the basis of a violatio n of Rule 5A:18. The court made a narrow ruling that it no longer had jurisdiction to hear the motions because appellant had filed a notice of appeal. Coun sel objected to that ruling on the grounds that it would preclude- 4 - him from presenting his motions. The court was therefore on notic e of defense coun sel’s objection to the ruling con cerning jurisdiction. Code § 19.2-296 provides that [a] motion to withdraw a plea of guilty or nolo contendere may be made only before sentence is imposed or imposition of a sentence is suspended; but to correct manife st injustice, th e court within twenty-one days afte r entry of a final or der may set aside the judgment of conviction and permit the defendant to withdraw his plea. The statute reflects Rule 1:1, which states: All final judgments, orders, and decr ees, irrespective of terms of court, shall remain under the contro l of the trial court and subject to be modified, vacated, or suspended fo r twenty-one days after the date of entry, and no longer. Despite the provisions of Co de § 19.2-296 and Rule 1:1, the court held that it was automatically divested of jurisdiction to hear appe llant’s motion to withdraw his guilty plea because a notice of appeal had been file d, even though the motion was filed on Ap ril 28, 2015, within twenty-one days of the April 13, 20 15 conviction and sentencing order. We disagree. This case is controlled by the recent Supreme Court case of Velazquez v. Commonwealth, __ Va.__, __ S.E.2d __ (Oct. 27, 2016) . In Velazquez, the defendant pled guilty to a felony charge on Octobe r 30, 2014. The defendant then sent a handwritten letter to the court on November 4, attemp ting to appeal his conviction. On November 17, the court entered a sentencing order, and based on the defendan t’s letter, appointed new counsel on November 18 to represent the defendant on appeal. Id. at __, __ S.E.2d at __. On November 25, the ne w attorney filed both a notice of appeal and a motion to withdraw the guilty plea pursuant to Code § 19.2-296. At a hearin g on December 5, the trial court determined that it “no longer ha[d] jurisdicti on over the matter,” desp ite the fact that the motion to withdraw the- 5 - guilty plea was filed within twenty-one days of the sentencing order. Id. at __, __ S.E. 2d at __. According to the trial court, it lost jurisdiction when the defendant filed his notice of appeal. Relying on the “plain language ” of Code § 19.2-296, the Supr eme Court held that “[f]iling the notice of appeal did not divest the trial court of ju risdiction.” Id. at __, __ S.E.2d at __. Because the motion to withdraw the guilty plea was filed within the 21-day time pe riod, the court retained jurisdiction, regardless of the fact that the defendant had filed a notice of appeal. “[T]he relevant question is not when the Court of Appeals obtained jurisdiction, but whether the trial court lost jurisdiction over [the defe ndant’s] motion to withdraw his plea.” Id. at __, __ S.E.2d at __ (emphasis added). Th e Court noted that “[t]he fact that an appell ate court has obtained jurisdiction over an appeal does no t necessarily divest a trial court of all jurisdiction to act upon certain matters.” Id. at __, __ S.E.2d at __. See also Gr anado v. Commonwealth , __ Va. __, __, 790 S.E.2d 233, 237 (2016 ) (holding that a court may make corrections to the written statement of facts of a case on appeal at any time while the statement of fact s remains in the cler k’s office); Code § 8.01-676.1 (a trial court maintains jurisdiction to suspend execution of a judgment or to modify the terms of security for an appeal). In Velazq uez, the Supreme Court he ld that the trial court retained jurisdiction for twenty-one days af ter entry of its final orde r to consider a motion to withdraw a guilty plea under the pl ain language of Code § 19.2-296, even th ough the defendant had filed a notice of appeal. __ Va. at __, __ S.E.2d at __. Likewise, in the case before us, appellant filed a motion to withdraw his guilty plea and defense counsel filed a motion to withdraw as coun sel after filing the notice of appeal, but within twenty-one days from the da te of the sentencing order. 1 Therefore, the trial court erred in finding

1 Although the motion was not heard until June 9, 2015, the court suspended the execution of the sentencing order on May 4, 2015, within twenty-one days of the April 13, 20 15 sentencing order.- 6 - that it did not have jurisdiction to consider the motions to withdraw the guilty plea and to withdraw as counsel and we remand for a hearing on appellant’s motions. Reversed and remanded.