COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Coleman 

Argued at Chesapeake, Virginia 

ELOISE H. CUFFEE-SMITH 

 OPINION BY 

v. Record No. 1098-02-1 JUDGE LARRY G. ELDER 

 DECEMBER 31, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF MATHEWS COUNTY 

William H. Shaw, III, Judge 

 Charles E. Haden for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 Eloise Cuffee-Smith (appellant) appeals from the sentence 

imposed following her felony conviction for her second or 

subsequent offense of driving after having been declared an 

habitual offender pursuant to Code § 46.2-357. On appeal, she 

contends the trial court erroneously concluded it lacked the 

authority to place her in an electronic home monitoring program 

pursuant to Code § 53.1-131.2. The Commonwealth contends 

appellant failed to preserve this argument for appeal. We hold 

appellant preserved the issue for appeal but conclude, on the 

merits, that a person convicted under a statute requiring a 

mandatory minimum period of incarceration is ineligible for 

electronic incarceration pursuant to Code § 53.1-131.2 for the 

duration of the mandatory sentence. Thus, we affirm. 
I. 

BACKGROUND 

Pursuant to Code § 46.2-357, appellant was indicted for the 

offense of driving after having been declared an habitual 

offender, her second or subsequent offense, for an act of 

driving which occurred on June 28, 2001. At trial on January 9, 

2002, appellant was convicted of that offense. Appellant 

concedes the sufficiency of the evidence to support her 

conviction. 

 At appellant's request, the trial court allowed her to be 

evaluated for the Diversion Center Incarceration Program, but 

her attorney represented she did not qualify solely because she 

is diabetic. At appellant's sentencing hearing, appellant's 

attorney asked the court "to put [appellant] on electronic 

monitoring," but noted this option might also be problematic 

because "[appellant] lives in Portsmouth and this is Mathews 

County." 

 The trial court noted "[t]he statute requires a minimum 

mandatory sentence of one year" and that "[e]lectronic 

monitoring . . . is not an option for a mandatory sentence." 

The trial court indicated it did not "necessarily agree with 

[that position]" but that it was the position taken by the 

Attorney General and the Supreme Court's "legal services" and 

that the trial court "ha[d] to abide by it." The trial court 

noted the number of appellant's prior convictions for driving on 

- 2 - 
a suspended license was "just enormous" and sentenced her to 

five years in prison with four years suspended with 

authorization for work release "if she is eligible." 

II. 

ANALYSIS 

A. 

PROCEDURAL BAR 

 The Commonwealth argues appellant's assignment of error is 

procedurally barred because she failed to object to the court's 

ruling that electronic monitoring was not an option where the 

offense requires a mandatory sentence. It also contends she 

failed to establish that monitoring was otherwise available, 

given that the offense occurred in Mathews County whereas she 

resided in Portsmouth. We hold that appellant properly 

preserved her assignment of error for appeal. 

 Rule 5A:18 provides that "[n]o ruling of the trial court 

. . . will be considered as a basis for reversal unless the 

objection was stated together with the grounds therefor at the 

time of the ruling . . . ." As the Commonwealth expressly 

acknowledges, the purpose of the rule is to allow the trial 

court to consider the issue and take corrective action in order 

to avoid unnecessary appeals, reversals and mistrials. See, 

e.g., Robinson v. Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 

885, 886 (1992). Formal exceptions to rulings are not necessary 

as long as the party "makes known to the court the action which 

- 3 - 
he desires the court to take or his objections to the action of 

the court and his grounds therefor." Code § 8.01-384(A). Rule 

5A:18 "does not prohibit reliance on statutes or cases not 

presented to the trial court to support, on appeal, a position 

otherwise adequately presented at trial." Lash v. County of 

Henrico, 14 Va. App. 926, 929, 421 S.E.2d 851, 853 (1992) (en

banc). 

 Here, appellant's counsel said he had spoken to "the 

probation officer" and that, because appellant was ineligible 

for the diversion program due to her diabetes, "the only other 

option is to put [appellant] on electronic monitoring." Counsel 

expressed concern only about the fact that appellant might not 

be eligible for electronic monitoring because she resided in a 

different jurisdiction than the jurisdiction in which the 

offense occurred. The trial court ruled in response that 

electronic monitoring was not available in cases involving 

mandatory sentences, citing an opinion of the Attorney General 

and the Supreme Court's "legal services" in support. Thus, the 

trial court was aware of the action appellant desired the court 

to take and appellant's opinion that the only problem with that 

action was practical rather than legal because she resided 

outside the jurisdiction. Requiring appellant to object after 

she requested electronic monitoring and the trial court ruled it 

lacked legal authority to employ electronic monitoring in a case 

requiring a mandatory minimum sentence "would, in effect, 

- 4 - 
recreate the requirement of noting an exception to a final 

adverse ruling of the trial judge." Martin v. Commonwealth, 13 

Va. App. 524, 530, 414 S.E.2d 401, 404 (1992). Counsel's 

request for a sentence including electronic monitoring was 

sufficient to preserve for appeal his objection to the trial 

court's conclusion that it lacked such authority in a case 

involving a mandatory sentence. 

 Further, we hold that the trial court, by ruling electronic 

incarceration was not an option for legal reasons, implicitly 

concluded it was not a practical impossibility due to the fact 

that appellant resided in another jurisdiction. Thus, we hold 

the absence of an express statement to this effect in the record 

does not bar the appeal. 

B. 

AVAILABILITY OF ELECTRONIC INCARCERATION PURSUANT TO 

CODE § 53.1-131.2 DURING TERM OF MANDATORY MINIMUM SENTENCE 

 Appellant contends the trial court erroneously concluded it 

lacked authority to impose electronic incarceration pursuant to 

Code § 53.1-131.2 when it sentenced her for a felony under Code 

§ 46.2-357(B)(3), which required imposition of a mandatory 

minimum sentence. Based upon the plain language of both 

statutes, we disagree and affirm the trial court's ruling. 

 We take guidance from principles of statutory construction, 

which provide that we must construe statutes to "ascertain and 

give effect to the legislative intent." Branch v. Commonwealth, 

- 5 - 
14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). Under "[t]he 

maxim of statutory construction expressio unius est exclusio 

alterius . . . [,] where a statute speaks in specific terms, an 

implication arises that omitted terms were not intended to be 

included within the scope of the statute." Commonwealth ex rel. 

Dep't of Corr. v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 

(2000). 

 Code § 53.1-131.2 contains a general authorization allowing 

courts, in appropriate cases, to employ electronic incarceration 

as an alternative to traditional incarceration in a state or 

local correctional facility. That code section provides in 

relevant part as follows: 

 A. Any court having jurisdiction for 

the trial of a person charged with a 

criminal offense, a traffic offense or an 

offense under Chapter 5 . . . of Title 20 

may, if the defendant is convicted and 

sentenced to confinement in a state or local 

correctional facility, and if it appears to 

the court that such an offender is a 

suitable candidate for home/electronic 

incarceration, assign the offender to a 

home/electronic incarceration program as a 

condition of probation, if such a program 

exists, under [appropriate supervision as 

specified in the statute]. However, any 

offender who is convicted of [certain 

enumerated violent or sexual offenses 

proscribed by Chapter 4 of Title 18.2] shall 

not be eligible for participation in the 

home/electronic incarceration program 

. . . . 

Code § 53.1-131.2 (emphasis added). 

- 6 - 
 Under the express language of Code § 53.1-131.2, an 

individual must be on probation in order to be eligible for 

electronic incarceration pursuant to that statute. Probation, 

"[t]o be effective, . . . must be concurrent with a coordinate 

term of suspension of sentence." Hartless v. Commonwealth, 29 

Va. App. 172, 175, 510 S.E.2d 738, 739 (1999) (relying in part 

on Code § 19.2-303, which provides that, "[a]fter conviction, 

. . . the court may suspend . . . the sentence in whole or part 

and in addition may place the accused on probation under such 

conditions as the court shall determine . . ."). Thus, 

electronic incarceration pursuant to Code § 53.1-131.2, which is 

imposed "as a condition of probation," is a sentencing option 

available only for those individuals sentenced to an active term 

of incarceration which the trial court retains the authority to 

suspend and chooses to suspend conditioned on probation. See, 

e.g., Code § 19.2-303. 

 Here, appellant's conviction for driving after having been 

declared an habitual offender was appellant's second or 

subsequent such offense, as described in Code § 46.2-357(B)(3),1

 1

 Code § 46.2-357(B) provides in relevant part as follows: 

- 7 - 

Except as provided in subsection D, any 

person found to be an habitual offender 

under this article, who is thereafter 

convicted of driving a motor vehicle or 

self-propelled machinery or equipment in the 

Commonwealth while the revocation 

determination is in effect, shall be 

punished as follows: 
and was punishable under subsection (B)(2). The portion of that 

subsection relevant to this appeal provides for "confinement in 

a state correctional facility for not less than one year nor 

more than five years or, in the discretion of the jury or the 

court trying the case without a jury, by confinement in jail for 

 

1. If such driving does not of itself 

endanger the life, limb, or property of 

another, such person shall be guilty of a 

Class 1 misdemeanor punishable by a minimum, 

mandatory term of confinement in jail for no 

less than ten days, which shall not be 

suspended except in cases designated in 

subdivision 2 (ii) of this subsection. 

2. If such driving of itself endangers 

the life, limb, or property of another or 

takes place while such person is in 

violation of §§ 18.2-36.1, 18.2-51.4, 

18.2-266 or § 46.2-341.24, irrespective of 

whether the driving of itself endangers the 

life, limb or property of another and the 

person has been previously convicted of a 

violation of §§ 18.2-36.1, 18.2-51.4, 

18.2-266 or § 46.2-341.24, such person shall 

be guilty of a felony punishable by 

confinement in a state correctional facility 

for not less than one year nor more than 

five years or, in the discretion of the jury 

or the court trying the case without a jury, 

by confinement in jail for twelve months and 

no portion of such sentence shall be 

suspended. However, . . . if the sentence 

is more than one year in a state 

correctional facility, any portion of such 

sentence in excess of one year may be 

suspended . . . . 

- 8 - 

 3. If the offense of driving while a 

determination as an habitual offender is in 

effect is a second or subsequent such 

offense, such person shall be punished as 

provided in subdivision 2 of this 

subsection, irrespective of whether the 

offense, of itself, endangers the life, 

limb, or property of another. 
twelve months," and it expressly states that "no portion of [the 

minimum one-year or twelve-month] sentence shall be suspended." 

Code § 46.2-357(B)(2) (emphasis added). Because the one-year 

mandatory minimum sentence under Code § 46.2-357(B)(2) may not 

be suspended, probation may not be imposed during this period 

and, thus, electronic incarceration pursuant to Code 

§ 53.1-131.2 may not be employed. Under the facts of this case, 

electronic incarceration was an option for the trial court only 

for the four-year portion of appellant's sentence which the 

trial court was authorized to, and did, suspend pursuant to Code 

§ 46.2-357(B)(2). 

For these reasons, we affirm the conviction and sentence. 

Affirmed. 

- 9 -