Ronnie Sherrod Monk v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Humphreys and Senior Judge Willis
Argued at Chesapeake, Virginia
RONNIE SHERROD MONK
MEMORANDUM OPINION* BY
v. 	Record No. 1022-06-1 	JUDGE ROBERT J. HUMPHREYS
OCTOBER 9, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Randall D. Smith, Judge
Kathleen A. Ortiz, Public Defender (Office of the Public Defender,
on brief), for appellant.
Leah A. Darron, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Ronnie Sherrod Monk (“Monk”) appeals the denial of his motion to reconsider the
sentence imposed for his robbery conviction of April 14, 2006. On appeal, Monk contends that
the trial court erred in denying his motion to reconsider based solely on jurisdictional grounds.
Specifically, Monk contends that his filing of a notice of appeal did not divest the trial court of
jurisdiction to modify his sentence. However, Monk’s argument presupposes that the trial court
would have otherwise had jurisdiction to modify his sentence. Because Monk failed to prove
jurisdiction, regardless of the filing of the notice of appeal, we hold that the trial court did not err
in denying his motion. Accordingly, we affirm the trial court.
∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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ANALYSIS
According to Rule 1:1 of the Rules of the Supreme Court of Virginia, “[a]ll final
judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of
the trial court and subject to be modified, vacated, or suspended for twenty-one days after the
date of entry, and no longer.” Expiration of the twenty-one-day time limitation divests the trial
court of jurisdiction, and orders entered in violation of Rule 1:1 are void. See Smith v.
Commonwealth, 32 Va. App. 766, 775, 531 S.E.2d 11, 16 (2000). However, Rule 1:1 is subject
to certain limited exceptions, including Code § 19.2-303. Ziats v. Commonwealth, 42 Va. App.
133, 138, 590 S.E.2d 117, 120 (2003).
Code § 19.2-303 states, in pertinent part, that
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, if it appears
compatible with the public interest and there are circumstances in
mitigation of the offense, 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 “invests courts with discretionary authority to modify a sentence
post-conviction in all felony cases, including those in which the defendant has been sentenced
pursuant to a plea agreement[,] so long as the defendant is in the local jail and has not been
delivered to the Department of Corrections.” Esparza v. Commonwealth, 29 Va. App. 600, 608,
513 S.E.2d 885, 889 (1999). In other words, “[o]nce the defendant has been transferred to the
[Department of Corrections] and twenty-one days have passed since the court’s last order, the
court can no longer modify a sentence.” Ziats, 42 Va. App. at 139, 590 S.E.2d at 120.
In order for the trial court to modify a sentence, it is the defendant’s burden to prove
jurisdiction, specifically that either twenty-one days have not yet elapsed, or that the defendant
has not yet been transferred to the Department of Corrections. See id. (holding that when faced

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with a silent record as to the defendant’s custody status, the trial court did not have jurisdiction to
modify a sentencing order); see also D’Alessandro v. Commonwealth, 15 Va. App. 163, 167,
423 S.E.2d 199, 201 (1992) (declining to find that the trial court had jurisdiction to modify a
sentencing order under Code § 19.2-303 where the record was silent on the defendant’s custodial
location).
In this case, Monk’s motion to reconsider his sentence was filed well in excess of
twenty-one days from the entry of the final order. Thus, it became Monk’s burden to prove that
the trial court had jurisdiction to modify his sentence, pursuant to Code § 19.2-303. Said
differently, Monk had to present the trial court with evidence that he had not yet been transferred
to the Department of Corrections. Monk’s motion requested the court to reconsider his sentence
because 1) he does not have a criminal history, and he believes the sentence to be excessive;
2) he has aspirations of entering the military; 3) he helps take care of his girlfriend and her four
children who need his income for support; and 4) there were circumstances not properly
conveyed to the sentencing judge, who had not presided over Monk’s trial. However, the motion
and the record are silent regarding whether Monk had, at the time of the filing of the motion,
been transferred to the Department of Corrections. Thus, Monk failed to provide the court with
any evidence from which it could determine that it had jurisdiction to modify his sentence,
pursuant to Code § 19.2-303.
Monk’s argument that the trial court retains jurisdiction to modify a sentence even after
the filing of a notice of appeal presupposes that the trial court would have had jurisdiction absent
the notice of appeal. Here, the evidence establishes that the trial court did not have jurisdiction
regardless of whether Monk filed a notice of appeal. As a result, we need not address whether
the filing of the notice of appeal alone divested the trial court of jurisdiction to modify the

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sentence. Accordingly, we hold that the trial court did not err in denying Monk’s motion to
reconsider his sentence.
CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.
Affirmed.