COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Decker and Russell Argued at Winchester, Virginia

OWEN FRANKLIN SILVIOUS MEMORANDUM OPINION * BY v. Record No . 1518-16-3 JUDGE MARLA GRAFF DECKER OCTOBER 3, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Thomas J. Wilson, IV, Judge Owen F. Silvious, pro se

. John I. Jones, IV, Assistant Att orney General (Mark R. Herrin g, Attorney General, on brief), for appellee.

Owen Franklin Silvious appeals a circuit court order extending his term of supervised probation. His single assignment of error challenges whether t he circuit court ha d subject matter jurisdiction when it took that action. We hold that when the c ircuit court acted, it retained subject matter jurisdiction. Consequentl y, we affirm the circuit court ’s ruling.

I. BACKGROUND In 2002, the appellant was sentenced for three counts of obtai ning money by false pretenses. The circuit court sentenced him to a combined twenty years and twelve months of incarceration.

The court ordered an active sent ence of one year and one month, with nineteen years and eleven months suspended. The order con ditioned the suspension upon su pervised probation that included the requirement that the appellant pay approximately $38,000 in restitution. The order did not provide specific terms regarding a payment plan.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - Ten years later, in 2012, the c ircuit court found the appellan t in violation of the terms and conditions of his supe rvised probation. 1 The court revoked one year o f the significant previously suspended sentence an d extended the appellant’s supervised prob ation for three years, “upon his release[,] . . . on the same term s and conditions” as in the 20 02 order. The court also ordered that the appellant “upon his release shall pay the . . . restitution on a schedule” as set out in the order. About four years later, by letter filed in the circuit court o n July 21, 2016, the appellant’s probation officer represented that the appellant had been “rele ased” to his three years of supervised probation on July 15 , 2013, and that it wa s scheduled to expire on July 15, 2016. The probation officer also informed the court that the appellant had adjusted satisfactorily to supervision and made timely payments but t hat he still owed over $ 34,000 of restitut ion. She concluded by asking the court to extend the appellant’s supervised probation “indefinit ely until his restituti on can be paid in

full.” The appellant filed a written response contending that his pro bation had “ended” on July 15, 2016, and questioning whether the court had “jurisdiction” to e xtend it once it had “expired by lapse of time.” He also stated, presumably in alternative fashion, that he had “no objection” to extending his probation until February 2018. In a hearing on August 15, 2016, the appella nt relied on his w ritten objection to extending his probation. The circuit cour t replied, “I can extend your s upervised probation indefinitely until your restitution is pai d for. I’m not tied down into this 2018 date . . . .” The appellant responded that he was “okay with that.” B y order entered on August 16, 2 016, the circuit court extended the appellant’s supervised probation “indefinitely,” on the same te rms and conditions as in the 2002 order, “until all restituti on is paid in full.”

1 Although not reflected in the circu it court record, the appell ant represents on brief that he was convicted of a federal o ffense in 2005 and that it was t his federal conviction that supported the 2012 proba tion revocation.- 3 - II. ANALYSIS The appellant’s single assignmen t of error alleges that the ci rcuit court “did not have subject matter jurisdiction” to extend his probation. He argue s that this is so because the court did not act until the probationa ry term had already expired by operation of law. The Commonwealth responds that the appellant remained under a suspe nded sentence at the time and, consequently, that the court retained subject matter juris diction to act. The Commonwealth further argues that the appella nt waived the right to object to any errors that did not implicate the circuit court’s subject matter jurisdiction. A. Scope of the Assignment of Error All litigants, even those proceeding pro se , must comply with the Rules of Court. See Townes v. Commonwealth, 234 Va. 307, 319, 362 S.E.2d 650, 656 ( 1987). It is well established that the “right of self-repr esentation is not a license . . . n ot to comply with the relevant rules of procedural and substantive law.” Justus v. Commonwealth, 222 V a. 667, 680, 283 S.E.2d 905, 912 (1981) (quoting Faretta v. California, 422 U.S. 806, 834 n. 46 (1975)). Rule 5A:12(c)(1) provides in r elevant part that “the petition [for appeal] shall list, clearly and concisely . . . , the specific e rrors in the rulings below upon which the party i ntends to rely.” It further directs that “[o]nl y assignments of error assigned i n the petition for appeal will be noticed by this Court.” Rule 5A:12(c)(1)(i). Additionally, Ru le 5A:12(c) “contains no ‘good cause’ or ‘ends of justice’ e xceptions.” Thompson v. Commonwea lth, 27 Va. App. 620, 626, 500 S.E.2d 823, 826 (1998). Accordingly, unde r the applicable rule, once an appeal has been granted, this Court is strictly limited to reviewing the specif ic assignment of error presented by the appellant in the petition. See Whitt v. Commonwealth, 61 V a. App. 637, 646-47, 739 S.E.2d 254, 259 (2013) ( en banc ); see also Va. Dep’t of Tra nsp. v. Fairbrook Bus. Park Assocs. , 244 Va. 99, 105, 418 S.E.2d 874, 878 (1992) (declining under the Supreme Court’s similar Rule- 4 - 5:17(c)(1) to consider the appell ant’s argument because it was “not within the scope of the assigned error”), cited with appr oval in Woodard v. Commonwealt h, 287 Va. 276, 280-81, 754 S.E.2d 309, 312 (2014). Here, the appellant’s assignmen t of error expressly references only “subject matter jurisdiction.” As di scussed in greater deta il below, “there is a significant difference between subject matter jurisdiction a nd . . . other ‘jurisdictional’ el ements.” Porter v. Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 426 (2008) (quoting Morrison v. Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990)). Consequentl y, we consider only th e narrow issue properly before us on appeal—whether the circuit co urt had subject matter juris diction to extend the appellant’s probation after the probationa ry period had expired but while t he appellant was still subject to a suspended sentence. 2 B. Subject Matter Jurisdiction In an appeal involving the jurisdiction of the circuit court, t he appellate court reviews the

issue under a de novo standard. See, e.g., Holla nd v. Commonwealth, 62 Va. App. 445 , 451, 749 S.E.2d 206, 209 (2013). Although a “cardinal principle of law” is that “penal statutes are to be strictly construed” against the Commonwealth, this principle do es not apply to the interpretation of statutes that “prescribe[] . . . jurisdiction” in criminal c ases. Kirby v. Commonwealth, 63 Va. App. 665, 672 n.6, 762 S.E.2d 414, 417 n.6 (2014). Additio nally, probation statutes “provide a

remedial tool in the rehabilita tion of criminals and, to that e nd, should be liberally construed.” Wilson v. Commonwealth, 67 Va. App. 82, 89, 793 S.E.2d 15, 18 ( 2016).

2 A challenge to a court’s subject matter jurisdiction is not wa ivable and may be raised for the first time on appeal. See, e.g., Porter, 276 Va. at 22 8, 661 S.E.2d at 426-27 (citing Morrison, 239 Va. at 169-70, 387 S.E.2d at 755-56). Therefore, we do not consider whether the appellant challenged the circuit court’s subject matter jurisdi ction below.- 5 - Jurisdiction admittedly “is a term [that] can engender much co nfusion because it encompasses a variety of separa te and distinct legal concepts.” Porter, 276 Va. at 228, 661 S.E.2d at 426. However, the scope of the term subject matter jurisdiction, which is only one of several types of jurisdiction, i s more limited and has been cla rified significantly through case

law. See Mohamed v. Commo nwealth, 56 Va. App. 95, 99, 691 S.E. 2d 513, 514 (2010). Subject matter jurisdiction is merely “‘potential’” jurisdictio n over a class of cas es that is granted “by constitution or statute.” Ghameshlouy v. Commonwealth, 279 Va. 379, 388, 689 S.E.2d 698, 702 (2010) (quoting Bd. of Supers. v. Bd. of Zoning Appeal s, 271 Va. 336, 344 n.2, 626 S.E.2d 374, 379 n.2 (2006)). This potent ial jurisdiction becom es “‘active’ jurisdiction, the power to adjudicate a particul ar case upon the merits, only whe n various [additional] elements [beyond subject matter jurisdic tion] are present.” Id. at 388- 89, 689 S.E.2d at 702-03 (quoting Bd. of Supers., 271 Va. at 343, 626 S.E.2d at 379). In short, “[s]ubject matter ju risdiction is conferred by statute according to the subject of the case, . . . rather than accord ing to a particular proceedin g that may be one part of [the] case.” Mohamed, 56 Va. App. at 99-100, 691 S.E.2d at 515 (quoting In r e Commonwealth, 278 Va. 1, 11, 677 S.E.2d 236, 240 (2009)). A court’s jurisdiction over t he subject matter “is determined at the time the litigation is filed and, once established, remains until the termination of the litigation.” E.C. v. Va. Dep ’t of Juv. Justice, 283 Va. 522, 5 27-28, 722 S.E.2d 827, 829 (2012). “[I]ntervening events may affect t he nature of the relief avail able,” but “they do not end or extinguish the [subject matter] j urisdiction of the Court.” Id . at 528, 722 S.E.2d at 830. We considered a similar challenge to a circuit court’s subject matter jurisdiction in Mohamed v. Commonwealth, 56 Va. App. 95, 691 S.E.2d 513, which involved the revocation of a suspended sentence. We noted t hat “the General Assembly has granted [the circuit] court[s] subject matter jurisdiction over the specific class of cases of which [the defendant’s] case [was] a- 6 - member—the prosecution and the rehabilitation of criminals .” Id. at 100, 691 S.E.2d at 515 (emphasis added) (observing that Code § 17.1-513 accords to Vir ginia’s circuit courts “original jurisdiction of all i ndictments for felonies and of presentment s, informations, and indictments for misdemeanors” (quoting Porter, 276 Va. at 229, 661 S.E.2d at 42 7)). We further recognized that proceedings for the revocation of probation and suspension of s entence “are part of the criminal process entrusted to the circu it courts by the General Assembly .” Id. (citing Green v. Commonwealth, 263 Va. 191, 194, 557 S.E.2d 230, 232 (2002)); se e Code §§ 19.2-304, -306. We emphasized that the circuit court, “‘[w]ithout question,’ . . . had the requisi te ‘potential jurisdiction[] to consider’ any m atter related to the criminal process as set forth in Code § 17.1-513,” including the defendant’s revocation proceeding. Mohamed, 56 Va. App. at 100, 691 S.E.2d at 515 (third alteration i n original) (quoting Ghame shlouy, 279 Va. at 389, 689 S.E.2d at 703). Consequently, we concluded that because the de fendant remained under a suspended sentence when the c ircuit court revoked his probation , it had subject matter jurisdiction to act. See i d. at 98-103, 691 S.E.2d at 514-17.

We hold that the result is the same in the appellant’s case. Although the circuit court did not purport to revoke any portion of the appellant’s remaining suspended sentence of eighteen years and eleven months, it reta ined the “potential” jurisdicti on to do so and to impose conditions on that suspension. See Code § 19.2-306. Therefore, while the court retained authority over the appellant’s suspended sentence, it had the requisite subject ma tter jurisdicti on to place him on probation. See Wilson, 67 Va . App. at 90-95, 793 S.E.2d at 19- 22 (holding that the circuit court lacked subject matter jurisdiction to exte nd the defendant’s pr obation where the periods of probation and suspension of sentence had expi red); Dunham v. Commonwealth, 5 9 Va. App. 634, 639-40, 721 S.E.2d 824, 827 (holding that the circuit cour t had subject matter jurisdiction to revoke the suspended sentence wh ere the period of suspension ha d not yet expired), aff’d, 284- 7 - Va. 511, 733 S.E.2d 660 (2012) ( per curiam ). Any error the circuit court may have committed in the way in which it extended the a ppellant’s probation did not defeat its subject matter jurisdiction to act, a nd the defect, if a ny, was both waivable and waived on the facts of this case. 3 See Parrish v. Jessee, 250 Va. 514, 521, 464 S.E.2d 141, 146 (1 995) (noting that a circuit court “has jurisdiction to err” and tha t if “the inferior court has j urisdiction of the subj ect matter of the controversy, . . . a mistaken exe rcise of that jurisdiction doe s not render its judgment void” (first quoting Farant Inv. Corp. v. Francis, 138 Va. 417, 436, 122 S.E . 141, 147 (1924); and then quoting Cty. Sch. Bd. v. Snead, 198 Va. 100, 107, 92 S.E.2d 497 , 503 (1956))). Additionally, the appellant asserts in his reply brief that he was no longer under a suspended sentence when the circuit court placed him on indefinite probat ion in 2016. 4 He suggests that the circuit court’s 2012 revocation order “replaced” the original 2 002 sentencing order “except as to the terms and conditions of probation .” As a result, he contends that the 2012 revocation order, which imposed one year of incarceration but was silent regarding the eighteen years an d eleven months remaining on the originally pro nounced term, did not “implicitl y resuspend the remainder.” Based on this analysis, the appellant asserts that the circuit court lacked subject matte r jurisdiction to extend his probation after it e xpired on July 15, 2016, because he was no longer under a suspended

sentence at that time. This argument is not supported by the law governing the revoca tion of suspension of sentence. Established principles provide that when a court’s r evocation order does not expressly resuspend the balance of a defen dant’s sentence, it does not “i mplicitly discharge the remaining

3 Concededly, the appellant’s argum ents challenging the circuit court’s authority to extend his probation are logical. H owever, the constraints of Rule 5A:12(c)(1) prevent us from considering those arguments be yond the framework of the appellant’s assignment of error.

4 Although it appears that the appe llant may have conceded this point at oral argument, it lacks merit for the reasons discussed infra in the text.- 8 - sentence.” Leitao v. Commonwea lth, 39 Va. App. 435, 438, 573 S .E.2d 317, 319 (2002). Instead, “it implicitly [resuspen ds] the balance that the defendant ha[s ] not served.” Id.; see Jacobs v. Commonwealth, 61 Va. App . 529, 535-36, 738 S .E.2d 519, 522 (201 3). As a result, the circuit court’s 2012 revocation order directing that the appellant serv e one year of his pr eviously suspended sentences implicitly resuspended the eighteen years and eleven months remaining on his original sentences. Consequently, those suspended sentences remained in effect when the circuit court acted only four years later, in 2016, gi ving the court subject matter jurisdiction to do so.

III. CONCLUSION The appellant’s single assignment of error presents for decisi on on appeal only the narrow question of the circuit court’s subject matter jurisdiction. U pon our review of the record, we hold that the circuit court had subject matter jurisdiction to act when it placed the appellant on indefinite supervised probation until he completes his payment of restitut ion. Accordingly, we affirm the circuit court’s ruling and remand the case for the limited purp ose of correcting a clerical error. 5

Affirmed and remanded with instructions.

5 The 2002 sentencing order lists th e appellant’s three convicti ons for obtaining money by false pretenses. As to two of those convictions, the order properly cites Code § 18.2-178, which proscribes the offense of conviction. As to the third re ferenced conviction, however, the order cites a non-existent sta tute, Code § 18.2-278. We remand to the circuit court for correction of this apparent clerical erro r. See Code § 8.01-428(B); Tatum v. Commonwealth, 17 Va. App. 585, 592-93, 440 S.E.2d 133, 138 (1994). In addition, on reman d, the circuit court should review the 2012 order for a possible scri vener’s error regarding wheth er the amount of the monthly restitution payment is $100 as indi cated elsewhere in the recor d or $1000 as reflected in the order and to correct the order if necessary.