COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Bumgardner 

Argued at Alexandria, Virginia 

MICHAEL RICHARD HOLDEN 

 OPINION BY 

v. Record No. 0803-97-4 JUDGE JERE M. H. WILLIS, JR. 

 JANUARY 27, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 Elwood Earl Sanders, Jr., Director Capital/ 

Appellate Services (Public Defender 

Commission, on briefs), for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (Richard Cullen, Attorney General; 

Kathleen B. Martin, Assistant Attorney 

General, on brief), for appellee. 

 On appeal from his convictions for aggravated sexual battery 

of children under the age of thirteen, Michael Richard Holden 

contends (1) that the trial court lacked jurisdiction to convict 

him, and (2) that the trial court erred in finding that his 

possession, creation and dissemination of obscene material 

violated a condition of his plea agreement. We disagree and 

affirm the judgment of the trial court. 

 I. 

 On August 11, 1986, a grand jury indicted Holden on two 

counts of forcible sodomy and seven counts of aggravated sexual 

battery of children under the age of thirteen. Holden entered 

into a plea agreement, whereby he pled guilty to four counts of 

aggravated sexual battery. The agreement provided that the trial 
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court would impose sentence on two counts and would withhold 

decision on the other two counts on such terms as the trial court 

imposed. 

 The trial court accepted the plea agreement. On May 13, 

1987, it sentenced Holden to serve ten years in prison on each of 

two counts of aggravated sexual battery. On the other two 

counts, the trial court withheld decision "for a period of ten 

years following the defendant's release from confinement" upon 

condition that: 

 1. The defendant shall keep the peace, be 

of good behavior, and obey all laws of 

this or any other jurisdiction. 

 2. The defendant shall serve 10 years on 

supervised probation following his 

release from confinement under the 

standard terms and conditions of 

probation. 

 On July 24, 1996, the trial court issued a rule against 

Holden to show cause why he should not be held in violation of 

the terms of the May 13, 1987 order. Testimony disclosed that 

prison officials had seized from Holden letters in which he 

explicitly advocated and described a design to engage in sexual 

abuse of children. 

 On December 17, 1996, the trial court ruled that Holden's 

misconduct violated the May 13, 1987 order that he "be of good 

behavior." The trial court convicted him of the two counts as to 

which decision had been withheld. 
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 II. JURISDICTION

 A. 

 Holden contends first that the trial court lacked 

jurisdiction to convict him on the two counts of aggravated 

sexual battery as to which decision had been withheld. He argues 

that by deferring judgment on his guilty pleas, the trial court 

divested itself of jurisdiction over those charges. 

 Subject matter jurisdiction is the authority granted a court 

to adjudicate a class of cases or controversies. Morrison v. 

Bestler, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990). Subject 

matter jurisdiction "cannot be waived or conferred on the court 

by agreement of the parties." Id. at 169-70, 387 S.E.2d at 755 

(citation omitted). "A judgment on the merits made without 

subject matter jurisdiction is null and void." Id. at 170, 387 

S.E.2d at 755-56 (citation omitted). Therefore, "the lack of 

subject matter jurisdiction can be raised at any time in the 

proceedings, even for the first time on appeal by the court sua

sponte." Id. at 170, 387 S.E.2d at 756. 

 In Morrison, the Supreme Court said: 

 One consequence of the non-waivable 

nature of the requirement of subject matter 

jurisdiction is that attempts are sometimes 

made to mischaracterize other serious 

procedural errors as defects in subject 

matter jurisdiction to gain an opportunity 

for review of matters not otherwise 

preserved. 

239 Va. at 170, 387 S.E.2d at 756. In Commonwealth v. Smith, 230 

Va. 354, 337 S.E.2d 278 (1985), the Supreme Court held that 
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failure to comply with a procedural requirement that a 

post-conviction bond appeal be decided by a three-judge panel 

rather than by a single judge did not divest this Court of 

jurisdiction. Id. at 360-61, 337 S.E.2d at 281-82. 

 Generally, absent an express statutory grant, trial courts 

may not dismiss criminal charges on grounds other than the legal 

or factual merits. Noting this, Holden mischaracterizes the 

trial court's acceptance of the plea agreement and its deferment 

of judgment on two of the guilty pleas as a divestiture of 

jurisdiction. Holden cites no authority for this position, and 

we have found none. He argues only that the trial court was 

required to proceed expeditiously to disposition on his guilty 

pleas and that its failure to do so was a denial of due process. 

 However, although error, even constitutional error, may produce 

a reversible decision, it does not extinguish jurisdiction. 

 Deferment of judgment or imposition of sentence may impose 

practical difficulties. However, this practice is authorized. 

See Code §§ 19.2-298, 19.2-303. The trial court discharged its 

duties properly in this case. It neither refused to try the case 

nor set the case aside permanently. Rather, it exercised its 

discretion soundly in accepting and implementing the plea 

agreement proposed by the Commonwealth and Holden. See Rule 

3A:8(c). The terms of the plea agreement sought Holden's 

rehabilitation, a socially and legally desirable goal. 

 Acceptance of Holden's plea agreement did not divest the 
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trial court of its jurisdiction to adjudicate the charges. The 

legislature has granted subject matter jurisdiction to the 

circuit courts for all felonies and for "all presentments, 

indictments and informations." Code §§ 17-123, 19.2-239. See

Owusu v. Commonwealth, 11 Va. App. 671, 672-73, 401 S.E.2d 431, 

431 (1991). The trial court acquired jurisdiction when the 

indictments were returned and it proceeded according to the plea 

agreement. No action or omission by the trial court relinquished 

or extinguished its subject matter jurisdiction. 

 A contrary result would deem jurisdictional a mere 

procedural deviation, resulting in the unwarranted nullification 

of consent judgments. Cf. Manns v. Commonwealth, 13 Va. App. 

678, 679-80, 414 S.E.2d 613, 615 (1992) (criminal defendant may 

not both approbate and reprobate). 

 Because the trial court had jurisdiction to convict Holden, 

we need not consider his argument, raised for the first time on 

appeal, that the trial court committed reversible error by 

deferring judgment on the pending charges. See Rule 5A:18. 

 B. 

 Holden contends also that the trial court lacked 

jurisdiction to make a finding of guilt based upon his conduct in 

prison. He argues for the first time on appeal that the term of 

his good behavior did not commence until his release from prison, 

and, therefore, because he was still in prison at the time of his 

misconduct, that misconduct could not be a violation of the 
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order. 

 As we have noted, the trial court had jurisdiction to enter 

judgment. At the time that Holden misbehaved, the cases were 

pending, awaiting decision by the trial court under the terms of 

the plea agreement. By the express language of the order, the 

continued deferment of the proceedings was contingent upon 

Holden's good behavior. Accordingly, the trial court retained 

jurisdiction over the pending cases at the time of the 

misconduct. Cf. Coffey v. Commonwealth, 209 Va. 760, 167 S.E.2d 

343 (1969). 

 III. GOOD BEHAVIOR

 Holden contends that the trial court erred in ruling that he 

violated the trial court's order that he be of good behavior. He 

argues that the First Amendment shields him from punishment for 

the possession, creation and dissemination of documents which 

advocate, in sexually explicit terms, illegal sexual relations 

with children. 

 The First and Fourteenth Amendments to the Constitution of 

the United States forbid abridging freedom of speech. Similarly, 

the Constitution of Virginia provides: 

 That the freedoms of speech and of the press 

are among the great bulwarks of liberty, and 

can never be restrained except by despotic 

governments; that any citizen may freely 

speak, write, and publish his sentiments on 

all subjects, being responsible for the abuse 

of that right . . . . 

Art. I, § 12 (emphasis added). However, obscenity enjoys no 
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constitutional protection, Goldstein v. Commonwealth, 200 Va. 25, 

27, 104 S.E.2d 66, 67 (1958), and the value of child pornography 

has been characterized as "'exceedingly modest, if not de

minimis.'" Osborne v. Ohio, 495 U.S. 103, 108 (1990) (quotation 

omitted). See Code § 18.2-372 (defining "obscene"). 

 Good behavior is not limited to an avoidance of criminal 

activity. 

 Probation is a disposition intended to reform 

the offender, appropriate in mitigating 

circumstances or to promote the public 

interest. It provides an opportunity for an 

accused to repent and reform, which may be 

withdrawn for reasonable cause, determined in 

the sound discretion of the trial court. 

Therefore, the issue on review of a 

revocation is simply whether there has been 

an abuse of discretion. 

Connelly v. Commonwealth, 14 Va. App. 888, 890, 420 S.E.2d 244, 

245 (1992) (citations omitted) (emphasis in original) (internal 

quotation marks omitted). See Hamilton v. Commonwealth, 217 Va. 

325, 327, 228 S.E.2d 555, 556 (1976). 

 Holden demonstrated a predilection to continue the 

misconduct that had led to his convictions for aggravated sexual 

battery of children under the age of thirteen. He revealed a 

cultivation of that predilection so as to create an expectation 

that he would be discharged from prison unrehabilitated and would 

resume his crimes against children. His misconduct frustrated 

efforts to rehabilitate him and enhanced the likelihood that he 

would continue to be a threat to children and to public order and 

safety. His creation, possession, and dissemination of the 
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subject obscene material perpetuated the very conduct embraced by 

the charges for which disposition had been deferred. 

 Accordingly, we find no abuse of discretion in the trial 

court's decision to terminate the deferment of judgment. The 

judgment of the trial court is affirmed. 

 Affirmed.