COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Humphreys 

Argued by teleconference 

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 COURT 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) contends that the trial court 

erred by modifying its original sentencing order to comport with 

his plea agreement. Finding no error, we affirm. 

 Appellant was indicted in the trial court for three separate 

offenses: (1) habitual petit larceny (CR01-682), (2) assault and 

battery (CR99-1420), and (3) habitual petit larceny (CR99-1418). 

On July 10, 2001 the trial court1 in a bench trial convicted 

appellant of the first two charges (CR01-682 and CR99-1420). On 

September 11, 2001, appellant pled 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 larceny charge (CR99-1418)2 pursuant to a plea 

agreement, which expressly provided that appellant's sentence on 

that offense would not exceed and would be served concurrently 

with his sentences in CR01-682 and CR99-1420. 

 Appellant appeared before the trial court on October 12, 2001 

for sentencing on all three charges.3 At that time, appellant 

advised the trial court that he was to be sentenced for both the 

bench trial convictions and on the plea. Appellant asked that he 

be placed on active probation with drug treatment. The 

Commonwealth asked the trial court to impose three years on each 

charge and to run the sentences concurrently. The trial court 

initially imposed a sentence of 12 months in jail on CR01-682, 12 

months in jail on CR99-1420 and five years in the penitentiary 

with one year suspended on CR99-1418. The trial court also 

ordered that all three sentences were to run concurrently. No 

order of sentence was entered after the October 12, 2001 hearing. 

 Appellant requested the trial court to reconsider the 

sentence because it did not conform with his plea agreement. 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. 

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trial court conducted a second sentencing hearing on December 14, 

2001 to address the discrepancy with the plea agreement. The 

trial court agreed that "the sentence does not match the plea 

agreement" and attributed the discrepancy to a "scrivener's 

error." "Clearly . . . I do not think this man should get out of 

jail in 12 months." The trial court then modified the sentence in 

CR01-682 "to reflect a sentence of five years with one year 

suspended. That makes the two habitual petit larcenies the same." 

When appellant objected that the sentence in CR01-682 was not 

before the court, the trial court noted that it still had 

jurisdiction to modify the sentence and that "[appellant] is 

getting the sentence I intended to impose." Appellant contends 

the trial court's action in modifying 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, 

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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. 

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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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