COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatric k, Judges Elde r and Humphreys Argued by te leconference

THOMAS C. HILLEARY MEMORANDUM OPINION * BY v. Record No. 0423-02-4 CHIEF JUDGE JOHANNA L. FITZPATRICK MARCH 18, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY Benjamin N. A. Kendrick, Judge Janell M. Wolfe for appellant. Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Thomas C. Hilleary (appellant) cont ends that th e trial court erred by modifying its original sentencing or der to comport with his plea agreement. Find ing no error, we affirm. Appellant was in dicted in the trial court for three separate offenses: (1) habi tual petit larceny (CR0 1-682), (2) assault and battery (CR99- 1420), and (3) ha bitual petit larc eny (CR99-1418). On July 10, 2001 the trial court 1 in a bench tr ial convicted appellant of the first two charges (CR0 1-682 and CR99 -1420). On September 11, 2001, appellant pl ed guilty to the remaining

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

1 The Honorable Joanne F. Alper presiding.habitual petit larcen y charge (CR99-1418) 2 pursuant to a plea agreement, which expres sly provided th at appellant's sentence on that offense would not exceed and would be served concurrently with his sentence s in CR01-682 and CR99-1420. Appellant appear ed before the trial cour t on October 12, 2001 for sentencing on all three charges. 3 At that ti me, appellant advised the trial court that he was to be sentence d for both the bench trial convic tions and on the plea. Appellant aske d that he be placed on active probatio n with drug tr eatment. The Commonwealth asked the trial court to impose three years on each charge and to run th e sentences conc urrently. The trial court initially impose d a sentence of 12 months in jail on CR01-682, 12 months in jail on CR 99-1420 and five years in the penitentiary with one year suspen ded on CR99-1418. The trial co urt also ordered that all three sentences were to run concur rently. No order of sentence was entered after th e October 12, 20 01 hearing. Appellant requ ested the tria l court to reconsider the sentence because it di d not conform wi th his plea ag reement. The

2 The Honorable Benjamin N. A. Kendrick presiding.

3 Appellant contends on appeal that it was improper for a judge other than Judge Alper, who conducted the bench trial, to impose sentence on charges CR01-682 and CR99-1420. However, appellant failed to raise any objection at the time of the sentencing hearing and that argument is therefore barred by Rule 5A:18. Appellant further contends that the trial court erred in failing to conduct further inquiries about the plea agreement. The record shows that appellant made no request for the trial court to do so nor made any objection at the time, thus Rule 5A:18 bars this argument as well. - 2 -trial court conduc ted a second sentencing hearing on December 14, 2001 to address the discrepancy wi th the plea ag reement. The trial court agreed that "the sentence do es not match the plea agreement" and attributed the discrepancy to a "scrivener's error." "Clearly . . . I do not think this man sh ould get out of jail in 12 months." The trial court th en modified th e sentence in CR01-682 "to reflect a sentence of five years with one year suspended. That makes the two habi tual petit larcen ies the same." When appellant objected that the sentence in CR01-682 was not before the court, th e trial court noted that it still had jurisdiction to modify the sentence and that "[appellant] is getting the senten ce I intended to impose." Appe llant contends the trial court's action in modify ing the sentence in CR01-682 was error. We disagree. If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, . . . may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. Code § 19.2-303. In addition to the requirement that the defendant still be in jail, any modifications of a sentence must be made within 21 days of entry of the final sentencing order. Rule 1:1. See also Robertson v. Sup. Of the Wise Corr. Unit , 248 Va. 232, 445 S.E.2d 116 (1994); In re: Dept. of Corrections , 222 Va. 454, 281 S.E.2d 857 (1981). Here,

- 3 -appellant remained in the Arlington County Jail on December 14, 2001. More importantly, the 21 days had not run because no sentencing order was entered after the October 12, 2001 hearing. 4 Thus, Rule 1:1 is not implicated in the instant case. Furthermore, "[t]he record clearly supports a finding that the trial court did not intend to impose a lenient sentence and that, at the time of imposing sentence," the trial court did "not think [appellant] should get out of jail in 12 months." Nelson v. Commonwealth , 12 Va. App. 835, 837, 407 S.E.2d 326, 328 (1991). At appellant's request and prior to entry of any sentencing order, the trial court reviewed the sentence imposed in the cases referenced in the plea agreement to make it comport with the plea agreement. The trial court stated "I think he ought to get four years" and modified the sentence in CR01-682 to conform to both the plea agreement and the trial court's sentencing intent. There was no agreement regarding the length of sentence in CR99-1420 or CR01-682, only that the sentence in CR99-1418 must be served concurrently with and not be in excess of the sentences imposed in CR99-1420 or CR01-682, Judge Alper's cases. The plea agreement provided: There is no agreement about what sentence I will receive and I understand that both my attorney and the Commonwealth are free to argue their views at the time of my

4 The record shows that no order of sentence was entered until February 15, 2002. - 4 -sentencing and to make recommendations to the judge. However, the sentence shall be concurrent with and not in excess of sentences rendered in matters CR01-682 (habitual petit larceny) and CR99-422 [sic] (assault and battery). The sentence imposed at the final sentencing hearing meets these requirements. Accordingly, we affirm. Affirmed.

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