COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Malveau x and Senior Judge Annunziata Argued at Alexandria, Virginia

TONY LYNELL BOST MEMORANDUM OPINION * BY v. Record No. 1302-17-4 JUDGE ROSEMARIE ANNUNZIATA JULY 24, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FREDERICK COUNTY Alexander R. Iden, Judge Christopher E. Collins (Buchbauer & McGuire, P.C., on brief), for appellant. Katherine Quinlan Adelfio, Assist ant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Appellant, Tony Lynell Bost, contends that the trial court err ed in imposing a five-year term of unsupervised probation aft er the court revoked appellan t’s two previously suspended sentences, which totaled eightyears, and re-suspended four yea rs. We affirm the trial court’s ruling. Appellant was convicted in Augus t 2014 of two counts of distri bution of cocaine and sentenced to a total of ten year s in prison, with eight years s uspended. As a condition of the suspended sentences, the trial court ordered that appellant be placed on supervised probation for two years following his release from incarceration. Appellant was released from prison on May 21, 2015. After appellant’s probatio n officer reported to the trial court that appellant had violated the terms of his proba tion in October 2015, the trial court issued a capias for appellant. Appellant was arrested on November 19, 2015.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - The revocation hearing was not held until June 23, 2017, becaus e it was continued nine times – eight times on appellant’s motion and once on a joint m otion with the Commonwealth. Appellant admitted that he had violated the terms of his probat ion. The court revoked the previously suspended sentences , re-suspended four years, and or dered that appellant serve four years. The court also directed that appellant be placed on uns upervised probation for five years commencing upon his release from incarceration. Appellant obtained new counsel, w ho filed a motion to reconside r the sentence imposed. At the hearing on the moti on on August 10, 2017, appellant argu ed that the court did not have jurisdiction to impose an additi onal five years of probation be cause the two-year probationary period, which the court had orde red initially, had expired on M ay 21, 2017. The court denied the motion. Appellant appealed to th is Court, challenging only the court’s order imposing five years of unsupervised probation. 1 An appeal involving jurisdi ction is reviewed under a de novo standard. See, e.g., Holland v. Commonwealth, 62 Va. App. 445, 451, 749 S.E.2d 206, 209 (201 3). Subject matter jurisdiction is author ity over a specified class of cases or co ntroversies granted to a court by

constitution or statute. S ee Ghameshlouy v. Commonwealth, 279 Va. 379, 388-89, 689 S.E.2d 698, 702-03 (2010). Subject matter ju risdiction is distinguish ed from a court’s authority to exercise its power to hear a part icular case. See Porter v. Co mmonwealth, 276 Va. 203, 227-37,

1 The Commonwealth argues that app ellant’s assignment of error i s limited to challenging only the trial court’s subject m atter jurisdiction, and thus ap pellant has waived any further challenge to the court’s exerci se of its jurisdiction. We assu me in this case that appellant has not waived his argument regarding th e court’s exercise of its juris diction. See Dunham v. Commonwealth, 59 Va. App. 634, 638, 721 S.E.2d 824, 826 (declin ing to determine whether Rule 5A:18 barred consideration of the issue defendant had rais ed, as “even assuming” that defendant’s claim was not barred, his argument lacked merit), a ff’d per curiam, 284 Va. 511, 733 S.E.2d 660 (2012); see also Moha med v. Commonwealth, 56 Va. App . 95, 100 n.2, 691 S.E.2d 513, 515 n.2 (2010) (finding that appe llant’s assignment of err or was “broad enough to encompass both the legal issues of subject matter jurisdiction and the authority to exercise jurisdiction”).- 3 - 661 S.E.2d 415, 426-31 (2008). Thus, subj ect matter jurisdicti on is “potential” jurisdiction that becomes “active,” giving the cour t “the power to adjudicate a p articular case upon the merits, only when various [additional] e lements . . . are present.” Gh ameshlouy, 279 Va. at 388-89, 689 S.E.2d at 702-03 (quoting Bd. of S upers. v. Bd. of Zoning Appea ls, 271 Va. 336, 343, 626 S.E.2d 374, 379 (2006)). The trial court had subject matter jurisdiction over appellant’ s revocation hearing in 2017 because revocation proceedings are statutorily “part of the cri minal process entrusted to the

circuit court.” Mohamed v. Commonwealth, 56 Va. App. 95, 100, 691 S.E.2d 513, 515 (2010); see also Code § 17.1-513 (stating that a circuit court has orig inal jurisdiction over all indictments for felonies and all presentments , indictments, and information s for misdemeanors). Indeed, appellant is not challenging the revocation of his suspended se ntences, the imposition of the four-year term of incarcerati on, and the re-suspension of four years. Rather, he contends that the court could not impose an addi tional probationary period. Howe ver, even if the court’s ruling was erroneous, the court did not exceed its subject matter juri sdiction. See Nicholas v. Commonwealth, 186 Va. 315, 320, 42 S.E.2d 306, 309 (1947) (hold ing that the power to decide a case necessarily includes th e power to decide wrongly, and a court does not exc eed its subject matter jurisdiction whenever it makes an erroneous ruling); see also Highsmith v. Commonwealth, 25 Va. App. 434, 443, 489 S.E.2d 239, 243 (1997). Appellant argues that Code § 19.2- 304 controls the outcome of h is case. The statute provides that “[t]he court may s ubsequently increase or decreas e the probation period and may revoke or modify any condition of probation, but only upon a he aring after reasonable notice to

both the defendant and the attorn ey for the Commonwealth.” App ellant contends that because

the statute does not address ex tensions of probation after the initial probation period has expired,- 4 - the circuit court could not im pose another period of probation after the two-ye ar probationary period imposed in 2015 expired on May 21, 2017. Issues of statutory construction are reviewed 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 rehabilitation of crimina ls and, to that end, should be lib erally construed.” Wilson v. Commonwealth, 67 Va. App. 82, 89, 793 S.E.2d 15, 18 (2016). Th e appellate court looks first to the language of the statute, a s the court is “bound by the plai n meaning of that statutory language” if the language is unambiguous. Alston v. Commonweal th, 274 Va. 759, 769, 652 S.E.2d 456, 462 (2007) (quoting Lee Cty. v. Town of St. Charles , 264 Va. 344, 348, 568 S.E.2d 680, 682 (2002)). Further, when constr uing multiple statutes, the court must “view the entire body of legislation and the statutory scheme ‘to determine the true intention of each part.’” Lamb v. Commonwealth, 40 Va. App. 52, 56, 577 S.E.2d 530, 532 ( 2003) (quoting McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 (1957)). Un less a different purpose is clearly shown, “statutes dealing w ith a specific subject must b e construed together in order to arrive at the object sought t o be accomplished.” Alston, 274 V a. at 769, 652 S.E.2d at 462 (quoting Prillaman v. Commonwealth, 199 Va. 401, 406, 100 S.E.2 d 4, 7 (1957)). A sentence may be suspended with out probation, but probation ca nnot be imposed unless a sentence is suspended. See Collins v. Commonwealth, 269 Va. 141, 145, 607 S.E.2d 718, 721 (2005). Accordingly, Code § 19.2-30 4 must be read in conjuncti on with Code § 19.2-306, which addresses the suspension of s entences. Subsection A of Code § 19.2-306 provides that “the court may revoke the suspension of sente nce for any cause the court d eems sufficient that occurred at any time within the probati on period, or within the period of s uspension fixed by the court.” Code § 19.2-306(B) further provides the defendant must be given notice of a reported violation “within one year aft er the expiration of the period o f probation or the period of- 5 - suspension,” or if neither peri od was fixed by the court, “with in one year after the expiration of the maximum period for which the defendant might originally hav e been sentenced to be

incarcerated.” If the court finds after a hearing that the def endant has violate d the terms of his suspension, “the court shall revoke the suspension and . . . ma y again suspend all or any part of

this sentence and may place the defendant upon terms and conditions or probation .” Code § 19.2-306(C)(ii) (emphasis added). Here, appellant’s original two- year probationary period was a condition of his suspended sentences. Under Code § 19.2-306, upon a finding that appellan t had violated his probation by committing new offenses, the trial court had authority to revok e and re-suspend any part of the sentence and to impose new terms and conditions for the suspens ion or probation. See Dunham v. Commonwealth, 59 Va. App. 634, 639 n.2, 721 S.E.2d 824, 826 n.2, aff’d per curiam, 284 Va. 511, 733 S.E.2d 660 (2012) (recognizing th at a trial court may increase the suspension period imposed in an original sentenc ing order upon revo cation and re- suspension of the sentence); Reinke v. Commonwealth, 51 Va. App. 357, 367-68, 657 S.E.2d 805 , 811 (2008) (holding that revocation and re-suspension unde r Code § 19.2-306(C) was a “ne w sentencing event” in which the trial court could impose ne w conditions on a re-suspended s entence). Furthermore, “[a] statute s hould never be construed so that it leads to absurd results.” Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 4 24 (1992); accord Jacobs v. Commonwealth, 61 Va. App. 529, 538, 738 S.E.2d 519, 523 (2013). Adopting appellant’s interpretation of Code § 19.2-304 is inconsistent with that pri nciple. Appellant’s admitted violations occurred in August and October 2015, and he was give n notice of the reported

violations in October 20 15. Under Code § 19.2-306(B), notice c ould have been given within one year of May 21, 2017, or by May 21, 2018. It does not follow l ogically that, even though under Code § 19.2-306(B), notice of a rep orted violation could be giv en after the probation period- 6 - expired, the court could not im pose another probation period as a condition for re-suspending a revoked sentence. Appellant’s in terpretation wou ld render Code § 19.2-306(C) superfluous and is contrary to well-established rules of statutory construction . See Sandidge v. Commonwealth, 67 Va. App. 150, 159, 793 S.E.2d 836, 841 (2016) (stating that “every part of a statute is presumed to have some effect and no part will be considered mea ningless unless absolutely necessary” (quoting Baker v. Commonwealth, 284 Va. 572, 577, 73 3 S.E.2d 642, 645 (2012))); Epps v. Commonwealth, 59 Va. App. 71, 80, 717 S.E.2d 151, 155 ( 2011) (holding that “whenever possible,” statutor y language should be interpreted “ to avoid rendering o ther statutory language superfluous”). Finally, appellant’s revoca tion hearing would have been held w ithin the two-year probationary period but for his re quests for eight continuances . Code § 19.2-306 does not prescribe the time pe riod when the revocation hearing may be he ld when proper notice has been given, as it had in this case. 2 Appellant’s multiple requests for continuances operated as a waiver that precludes his present complaint that the court exceeded it s authority to act. See generally Rowe v. Commonwealth, 277 Va. 495, 501-02, 675 S.E.2d 161, 164 (2009) (“A party may not approbate and reprobate by taking successive positions in the c ourse of litigation that are either

inconsistent with each other or m utually contradictory. Nor ma y a party invite error and then attempt to take advantage of the situation created by his own w rong.” (quoting Cangiano v. LSH Bldg. Co., 271 Va. 171, 181, 623 S.E.2d 889, 895 (2006))). For these reasons, we affirm t he ruling of the trial court.

Affirmed.

2 Cf. Code § 19.2-243 (stating that f or determining whether a de fendant has received a speedy trial, the prosecution must be “ commenced in the circuit court” within five or nine months of certain events and that conti nuances requested or concurred in by the defendant toll the running of the speedy trial c lock (emphasis added)).