COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, AtLee and Senior Judge Clements Argued at Lexington, Virginia

CHARLIE LUTHER WILSON, JR. OPINION BY v. Record No. 1658-15-3 J UDGE ROBERT J. HUMPHREYS NOVEMBER 29, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE James J. Reynolds, Judge

Sherron E. Ashby, Assistant Public Defender, for appellant. Aaron J. Campbell, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Charlie Luther Wilson, Jr. (“Wilson”) appe als the October 13, 2015 decision of the Circuit Court of the City of Danville (the “cir cuit court”) revoking his suspended sentence and sentencing him to twelve months’ incarceration. Wilson’s single as signment of error is that the circuit court lacked authority to revoke his suspended sent ence at the October 13, 2015 revocation hearing because the circuit court’s February 8, 2011 probation extension order failed to properly extend his probation period for tw o reasons: (1) the October 26, 2005 restitution order was improperly delegated to the probation officer, rather than determined by the circuit court as required by Code § 19.2-305.1(D), thus any subsequent order is invalid, and (2) his probation period had previously expired, on April 23, 2010, by the time the February 8, 2011 probation extension order was entered.PUBLISHED- 2 - I. Background On October 26, 2005, Wilson, who had theretofore entered nolo contendere pleas and had been convicted of involuntary manslaughter and possession of a firearm after having been previously convicted of a felony, was sentenced by the circuit court to a term of five years’ imprisonment with two years and six months suspended for the involuntary manslaughter conviction, and five years’ imprisonment with three years suspended for possession of a firearm

as a convicted felon. Wilson’s sentences ran cons ecutively, thus, he was to serve four years and six months of imprisonment and had five years and six months of suspended time. Additionally, the circuit court ordered that Wilson “shall pay restitution in the amountto be determined by the Probation Officer . . . .” (Emphasis added). The October 26, 2005 sentencing order did not contain a requirement to make specific monthl y payments or a date certain by which Wilson must fulfill his restitution obligation. Further, the circuit court’s October 26, 2005 order “placed [Wilson] on probation to commence upon release fr om incarceration, under th e supervision of a Probation Officer for twelve (12) months.” 1 On May 1, 2009, Wilson was placed on probation s upervision. Wilson’ s date of release from probation supervision was April 23, 2010. On July 7, 2010 Wilson and his probation officer, Shawn M. Trimble (“Trimble”), signeda voluntary extension of probation agreement stating that Wilson “agree[d] to waive his proba tion revocation hearing . . . , and have [his] probation supervision extende d until all court costs, fines, and restitution are paid in full.” The

record is silent as to whether Wilson had the as sistance of legal counsel when he signed the July 7, 2010 voluntary extension of probation agreement.

1 The October 26, 2005 sentencing order also directed Wilson to remain on good behavior for eight years afte r release from probation and to pay court costs of $1,995.- 3 - On February 2, 2011, Trimble sent the circuit court a letter titled “REQUEST: Voluntary Extension of Supervised Probation” asking for Wilson’s supervised probation to be “extended indefinitely until all restitution is paid in his case .” In this letter to the circuit court, Trimble explained that Wilson adjusted well to supervis ed probation “with the exception of paying [his] restitution.” Further, Trimble informed the ci rcuit court about the July 7, 2010 signed voluntary probation extension agreement and that W ilson’s restitution balance was $6,046.27. On February 8, 2011, the circuit court granted Trimble’ s request and issued an order stating that “upon the request of the Probation Officer by letter dated February 2, 2011, and [with] the written consent of the probationer, the period of probation for the said Charlie Luther Wilson, Jr. is hereby extended to allow defendant additional tim e to pay restitution.” This order effectively placed Wilson on probation indefinitely until he paid his restitution in full. Over four years later, on Ap ril 1, 2015, Jessica Echols (“Echo ls”), a probation and parole officer with the Department of Corrections, issued a major vi olation report (the “violation report”) against Wilson. The viol ation report states that Wils on had not made a restitution payment since July 11, 2013 and that he st ill owed restitution inthe amount of $3,241.27. Wilson was sent a letter reque sting him to report to the probation office on March 26, 2015. Because he was in Maryland for a family em ergency, Wilson contacte d the probation office explaining that he would be late for his March 26, 2015 appointment. In response, the probation

office told Wilson that he had never been issued a pass to leave the Commonwealth of Virginia to go to Maryland and told him to return to th e probation office immediately. Wilson arrived at the probation office on March 26, 2015. On March 26, 2015, Wilson explained to the pr obation office that he had been giving his wife the money for his restitution payments a nd she had not been payi ng it. Additionally, Wilson told the probation office that he had no ne w criminal charges against him. However,- 4 - after the probation officer ran a criminal reco rds check, it was discovered that Wilson had been arrested on February 15, 2015 in Richmond Coun ty, Georgia for driving under the influence (“DUI”) and driving without a li cense. Wilson had not been issued a pass from the probation office to go to Georgia. Finally, Wilson wa s screened for drugs during his March 26, 2015 probation office visit. The drug screen returned positive for marijuana and cocaine. A revocation hearing was held on Octobe r 13, 2015, at which time Wilson was present and was represented by appointed counsel. Wilson de nied the allegations of the violation report. Probation Officer Erica Stump (“St ump”), who was acting as a subs titute for Echols, testified that Wilson’s conditions of probation did have a minimum expiration date of April 23, 2010, but that his probation term had been indefinitely extended on February 8, 2011 for failure to pay restitution. Stump testified that Wilson’s only restitution payment since 2013 came on September 9, 2015 in the amount of $225 and th at as of October 6, 2015, Wilson’s restitution balance was $3,016.27. Further, Stump testified th at, on February 15, 2015, Wilson was arrested in Richmond County, Georgia for DUI and driving without a license and that he did not have permission from the probation o ffice to travel to Georgia. 2 At the October 13, 2015 revocation hearing, W ilson made a motion to strike arguing that the October 26, 2005 sentencing order improperly dele gated the circuit cour t’s responsibility to set the restitution amount by ordering Wilson to “pay restitution in the amount to be determined by the Probation Officer.” Wilson argued that the probation office di d not have the authority to extend probation. The circuit cour t overruled Wilson’s motion to strike stating that “to the extent the Order is incomplete with respect to a restit ution figure, it may make the Order voidable, but

not void.”

2 Wilson’s DUI charge in Georgia was dismissed.- 5 - Ultimately, on October 13, 2015, the circuit cour t entered its revocation order finding

Wilson in violation of the terms and conditions of his suspended sentence and imposed a sentence of five years and six months with f our years and six months suspended. Thus, Wilson must serve twelve months’ imprisonment. 3 Notably, the circuit court did not revoke Wilson’s suspended sentence for failure to pay restitution. In stead, the list of violati ons included (1) that Wilson failed to report an arrest within three days—the arrest cited was the Georgia DUI on February 15, 2015, (2) that he lied to the pr obation office on March 26, 2015 about the February 15, 2015 DUI arrest, (3) that he tested positive for a controlled substance on March 26, 2015, and (4) that he left the Commonwealth of Virginia without permission. II. Analysis

A. Standard of Review “[T]he authority of the trial c ourt to revoke [an] appellant’s suspended sentence is one of statutory interpretation and pr esents a pure question of law, which this Court reviews de novo .” Hodgins v. Commonwealth, 61 Va. App. 102, 107, 733 S.E.2d 678, 680 (2012). Probation statutes provide a remedial tool in the rehabili tation of criminals and, to that end, should be liberally construed. Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000). B. Improper Delegation of Restitution Determination In challenging the circuit court’s authority to revoke hi s suspended sentence at the October 13, 2015 revocation hearing, Wilson first ar gues that the circuit court’s February 8, 2011 probation extension order failed to extend his probation period because the October 26, 2005

3 The circuit court also placed Wilson on two years’ probation following his release from incarceration followed by five years of good behavior.- 6 - restitution order was improperly delegated to th e probation officer, rather than determined by the circuit court as required by Code § 19.2-305.1(D), thus any s ubsequent order is invalid. In relevant part, Code § 19.2- 305.1(D) states that “[a]t the time of sentencing, the court shall determine the amount to be repaid by the defendant and the terms and conditions thereof.” The amount of restitution to be paid by the defend ant is within the sole province of the circuit court to determine and that determination may not be delegated to a nother department of government. See Code § 19.2-305.2; see also McCullough v. Commonwealth, 38 Va. App. 811, 815, 568 S.E.2d 449, 451 (2002) (holding “[p]art of the se ntencing phase of tria l, the [restitution] amount is determined following conviction and is a matter resting within th e sole province of the sentencing judge”). In this case, the circuit court’s October 26, 2005 sentencing order stated that the “defendant shall pay restitu tion in the amount to be determined by the Probation Officer.” Therefore, as a matter of law, we hold that the circuit court improperly delegated the

determination of Wilson’ s restitution amount to the probation officer. While we agree with Wilson that the circuit court improperly delegated the determination of Wilson’s restitution amount to the probation o fficer in its October 26, 2005 sentencing order, we disagree with Wilson that thatimproper delegation negates any re stitution ever being ordered. [I]t is a general principle that where a court has jurisdiction over the person and the subject matter, no error in the exercise of such jurisdiction can make the judgm ent void, and that a judgment rendered by a court of competent jurisdiction is not void merely because there are irregularities or errors of law in connection therewith. This is true even if there is a fundamental error of law appearing upon the face of the reco rd. Such a judgment is, under proper circumstances, voidable, but until avoided is regarded as valid. Robertson v. Commonwealth, 181 Va. 520, 536-37, 25 S.E.2d 352, 359 (1943). Wilson’s argument that the October 26, 2005 re stitution order is invalid is an improper collateral attack. Any challenge to the validity of the circuit court’s orders must have been made- 7 - within twenty-one days of the entry of the order in question. See Rule 1:1; Simmers v. Commonwealth, 11 Va. App. 375, 379, 398 S.E.2d 693, 695 (1990) (“When the trial court rendered judgment, Simmers had two options available to him. He had twenty-one days from

the date of the order to attack it in the trial co urt, or he could have tim ely petitioned this Court for an appeal. He did neither, but instead accep ted the benefit of the court’s suspension of sentence. Since the judgment of the trial court was not void, Simmers may not sustain a collateral attack at this date.”). Because the circuit court clearly had subject matter jurisdiction

to order restitution in the October 26, 2005 sentencing order, it was not void but merely voidable. Wilson failed to timely challenge the va lidity of the circuit co urt’s sentencing order, thus his challenge to the order now comes too late and is an imp ermissible collateral attack on

that order.

C. Lack of Jurisdic tion: Code § 19.2-306(A) Next, Wilson argues that th e circuit court’s February 8, 2011 probation extension order failed to validly extend his proba tion period because his probation period had previously expired on April 23, 2010. In other words, Wilson argues th at the circuit court no longer could exercise its jurisdiction pursuant to Code § 19.2-306(A). “The imposition and revocation of a suspe nded sentence is governed by statute.” Dunham v. Commonwealth, 59 Va. App. 634, 637, 721 S.E.2d 824, 825 (2012). Pursuant to Code § 19.2-303, a circuit court possesses the authority to “suspend imposition of sentence or suspend the sentence in whole or part and . . . place the defendant on probation under such

conditions as the court shall determine.” Code § 19.2-303.1 authorizes a circ uit court to “fix the period of suspension for a reasonable time, havi ng due regard to the gravity of the offense, without regard to the maximum period for which the defendant might have been sentenced.” Therefore, “[i]n a typical case following a c onviction, the sentencing judge might suspend- 8 - part of a sentence, order proba tion for a specified period, a nd also specify a period of suspension longer than the period of proba tion.” Carbaugh v. Commonwealth, 19 Va. App. 119, 124, 449 S.E.2d 264, 267 (1994). “Suspension of sentence means ‘either delay in the imposition of a sentence for a crime or the staying of execution of the sent ence imposed.’” Id. at 123, 449 S.E.2d at 266 (quoting Richardson v. Commonwealth, 131 Va. 802, 808, 109 S.E. 460, 461 (1921)). Our analysis in this case is complicated by th e lack of specificity in the circuit court’s orders and the paucity of information in the reco rd which resulted in those orders. Nevertheless, our decision in this case is determined by ourapplication of the pl ain language of Code § 19.2-306 and by the application of that statute to the sentencing and revocation orders, such as they are, that exist in this case. When inte rpreting and applying a stat ute, this Court assumes “that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words.” PKO Ventures, LLC v. No rfolk Redevelopment & Hous. Auth., 286 Va. 174, 183, 747 S.E.2d 826, 831 (2013). “The primary obj ective of statutory construction is to ascertain and give effect to legislative intent . The plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998) . The language of Code § 19.2-306(A) “specifies the periods in which the events amoun ting to cause for revocation must occur in order for a judge to revoke a suspended sentence.” Carbaugh, 19 Va. App. at 123, 449 S.E.2d at 266. Code § 19.2-306(A) provides, in pertinent part, that a circuit court may revoke a previously suspended sentence “for any cause the c ourt deems sufficient that occurred at any time within the probation period, or within the period of suspension fixed by the court .” (Emphasis added). Proceedings for revocation of suspended sentences are within the subject matter jurisdiction of the circuit cour ts. Dunham, 59 Va. App. at 640, 721 S.E.2d at 827. “A sentencing- 9 - order revoking a suspended sentence is not void when the trial court ‘had juri sdiction over the subject matter and the parties.’” Id. at 639, 721 S.E.2d at 827 (quoting Simmers, 11 Va. App. at 379, 398 S.E.2d at 695). Thus, a sentencing order re voking a suspended sentence is void when

the circuit court did not have jurisdiction over the subject matte r and the parties. As both this Court and our Supreme Court stated in Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689 S.E.2d 698, 702 (2010) (quoting Ghameshlouy v. Commonwealth, 54 Va. App. 47, 57, 675 S.E.2d 854, 859 (2009) (Haley, J. dissenting)), “jurisdiction is a word of many, too many meanings.” However, in Ghameshlouy, our S upreme Court provided the following guidance: [S]ubject matter juri sdiction, perhaps best understood as the “potential” jurisdiction of a court, is the authority granted to it by constitution or statute over a specified class of cases or controversies, and becomes “activ e” jurisdiction, the power to adjudicate a particular case upon the merits, only when various elements are present. “Those elements are subject ma tter jurisdiction, which is the authority granted through constituti on or statute to adjudicate a class of cases or controversies; territorial jurisdiction, that is, authority over persons, things, or occurrences located in a defined geographic area; notice jurisdiction, or effec tive notice to a party or if the proceeding is in rem seizure of a res ; and the other conditions of fact must exist wh ich are demanded by the unwritten or statute law as the prerequisites of the authority of the court to proceed to judgment or decree. Al l these elements are necessary to enable a court to proceed to a valid judgment.” Id. at 388-89, 689 S.E.2d at 702-03 (quoting Board of Supervisors v. Board of Zoning Appeals, 271 Va. 336, 343-44, 626 S.E.2d 374, 379 (2006)). In Dunham, this Court held that “because the trial court had subj ect matter jurisdiction over appellant’s 1998 revocation hearing when it decided to extend the pe riod of suspension, the 1998 sentencing order is not void. As a result, appellant cannot collaterally attack the 1998 sentencing order in this case.” 59 Va. App. at 640, 721 S.E.2d at 827. Put another way, by the plain language of the statute as it applies to this case, a circuit c ourt has “active” jurisdiction over- 10 - a defendant to revoke a suspended senten ce for any act that occurs at any time either within the probation period, or within the period of suspension fixed by the court. Here, we are presented with the opposite circ umstance of what occurred in Dunham. If

the circuit court lacked“active” jurisdiction over Wilson when it extended his probation in its February 8, 2011 order, Wilson can collaterally seek to void the 2011 probation order that extended the period of suspension. Pursuant to Rule 1:1, “[a]ll final judgments, orders, and decrees, ir respective of terms of court, shall remain under the cont rol of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” While “[a] court retains the authority to revoke a suspe nded sentence despite the proscrip tions of Rule 1:1,” Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000), it does not retain the authority to retroactively extend its “active” jurisdiction to do s o. Here, the original October 26, 2005 sentencing order, in pertinent part, sent enced Wilson to be “placed on probation to commence upon release from incarceration, under th e supervision of a Probation Officer for twelve (12) months.” Wilson was released to supervised probation on May 1, 2009. Pursuant to the sentencing order, he was scheduled to be released from supervised probation on April 23, 2010. Thus, the circuit court had twenty-one da ys from April 23, 2010 to extend its “active” jurisdiction for Wilson to rema in on supervised probation. Here, more than ten weeks had elapsed after the expiration of the period of suspension fixed by the court in its sentencing order until Trimble had Wilson sign an agreement on July 7, 2010 for extension of probation supervision, stat ing that Wilson “agreed to waive a probation revocation hearing in the [] [c]irc uit [c]ourt and have [his] proba tion supervision extended until all court costs, fines, and restitution are paid in full.” “A court speaks through its orders and those orders are presumed to accu rately reflect what transpired.” Hodgins, 61 Va. App. at 108,- 11 - 733 S.E.2d at 681 (quoting McBride v. Comm onwealth, 24 Va. App. 30, 35, 480 S.E.2d 126, 128 (1997)). It took well over nine months from April 23, 2010 for the circuit court, on February 8, 2011, to enter an order stating that “the peri od of probation for [Wilson] is hereby extended to allow defendant additional time to pay restitution.” This was error. By the time it entered its order doing so, the circuit court no longer had ac tive jurisdiction to extend Wilson’s probation and Wilson’s signature on an agreement to extend jurisdiction was ineffective. See Andrews v. Richmond Redevelopment & Hous. Auth., 292 Va. 79, 84, 787 S.E.2d 96, 99 (2016) (“Under settled principles, such jurisdiction ‘cannot be conferred on the court by the litigants’ and a challenge to it ‘cannot be waived.’” (quoting Virginian-Pilot Media Cos. v. Dow Jones & Co., 280 Va. 464, 468, 698 S.E.2d 900, 902 (2010))). Thus , applying the plain language of the statute, we hold that Wilson was not on superv ised probation after Apri l 23, 2010 nor at the time

the circuit court revoked his suspended sentence on October 13, 2015. However, this does not end our analysis b ecause notwithstanding any probation status, Code § 19.2-306(A) extends jurisdiction to a circ uit court to revoke a previously suspended sentence “for any cause the court deems sufficien t that occurred at any time within the probation period, or within the period of suspension fixed by the court .” Although we have determined that the probation period was no longe r in effect by the time the circuit court revoked Wilson’s suspended sentence on October 13, 2015, under the plain language of th e statute, the circuit court still had the jurisdiction and authority to revoke Wilson’s suspended sentence for any cause deemed sufficient that occurred at any time with in the period of suspension fixed by the circuit court. Nevertheless, it failed to do so. Upon his release from confinement on Ma y 1, 2009, Wilson still had five years and six months of suspended time. The October 13, 2015 revocation order li sts the reasons for revocation. The list of alleged vi olations included (1) that W ilson failed to report an arrest- 12 - within three days—the Georgia DUI arrest on February 15, 2015, (2 ) that he lied to the probation office on March 26, 2015 about the February 15, 2015 DUI arrest, (3) that he tested positive for a controlled substance on March 26, 2015, and (4) that he left th e Commonwealth of Virginia without permission on February 15, 2015. Applying the language of Code § 19.2-306(A), the authority of the circ uit court to revoke Wilson’s suspended sentence extended from the day of his release from incarceration until November 1, 2014 which represents the five year s and six months of his suspended sentence. 4 Therefore, the circuit court had “active” jurisdic tion to find Wilson in violation of the conditions for his suspended sentence duri ng the period of five years and six months from May 1, 2009. Thus, the “active” jurisdiction of the circu it court to revoke Wilson’s suspended sentence terminated, by operation of the statute, for a ny action by Wilson that oc curred after November 1,

2014. Not one of the four cited violations in the list of revocation violations occurred prior to November 1, 2014. Therefore, the circuit court erred in revoking Wilson’s suspended sentence because it no longer had “act ive” jurisdiction to do so. 5 See Code § 19.2-306(A).

4 The record is unclear as to Wilson’s ex act incarceration release date. May 1, 2009 is the date closest in time to his incarceration release date because it was the date he was released to probation supervision which, given the presump tion of regularity should have occurred immediately upon his release from confinement. However, even the later May 1, 2009 date does not affect our calculation regarding the expi ration of the circuit court’s jurisdiction.

5 We acknowledge that the or iginal October 26, 2005 sentencing order also placed Wilson on good behavior for eight years. Ho wever, the circuit court’s October 13, 2015 revocation order did not revoke Wilson for failure to be of good behavior during the time it retained jurisdiction over Wilson. Therefore, because a court speaks only through its orders we cannot consider whether Wilson violated the good behavior requireme nt of his original sentencing order.- 13 - Conclusion

Because the circuit court lacked jurisdiction to do so, we reverse the circuit court’s October 13, 2015 judgment finding Wilson in violation of his probation and we remand this matter to the circuit court for the entry of an order consistent with this opinion.

Reversed and remanded.