Ronnie Lee Rogers v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
RONNIE LEE ROGERS
OPINION BY
v. 	Record No. 0210-98-2 	JUDGE JAMES W. BENTON, JR.
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
Elizabeth Virginia Killeen (John F.
Wilkinson, Assistant Public Defender, on
brief), for appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge found that Ronnie Lee Rogers had violated
conditions of his suspended sentence and ordered Rogers to
participate in the Diversion Center Incarceration Program. 	See
Code § 19.2-316.3. 	Rogers contends the trial judge had no
authority to order him to participate in the program because the
trial judge already had revoked part of the suspended sentence.
He also contends the trial judge violated Code § 19.2-303 and Rule
1:1 by improperly modifying a sentence that had become final. 	For
the reasons that follow, we affirm the judgment.
I.
In 1995, Rogers pled guilty to a felony charge of concealing
merchandise in a store with the intent to convert the merchandise

to his use without paying the purchase price. 	See Code
§§ 18.2-103 and 18.2-104. 	A judge of the circuit court sentenced
Rogers to two years in prison and suspended all but six months of
the sentence on the condition that Rogers be of good behavior for
five years following his release from prison.
The proceeding that gives rise to this appeal commenced on
December 10, 1997, when Rogers appeared in the circuit court to
show cause "why the sentence previously imposed and suspended
should not be revoked, in whole or in part," because of an
allegation that Rogers had violated conditions of his 1995
suspended sentence and probation. 	During that hearing, Rogers'
probation officer testified concerning acts committed by Rogers
that violated conditions of his suspended sentence and probation.
The probation officer also testified that she had caused the
police to arrest Rogers and that she had placed Rogers into an
in-patient program at the Piedmont House for treatment for
alcoholism. 	While on a furlough from Piedmont House, Rogers was
arrested for committing an offense in Prince William County and
was terminated from the treatment program.
At the conclusion of the testimony, Rogers' attorney
requested the trial judge to "order [Rogers] back into the
[Piedmont House] program" and offered in evidence a letter stating
that Piedmont House was willing to have Rogers return to the
program. 	Rogers' attorney also noted that Rogers was required to
attend a hearing the following week in Prince William County.
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Stating her unfamiliarity with the Piedmont House program, the
Assistant Commonwealth's Attorney requested the trial judge to
consider the Diversion Center Incarceration Program established by
Code § 19.2-316.3.
The trial judge "[found] that [Rogers] has violated the terms
and conditions of the previously imposed sentence" and then
recalled the probation officer to testify concerning the Piedmont
House program. 	During her testimony, the probation officer said
she had no dealings with Piedmont House prior to Rogers'
placement. 	She also noted that Rogers had not been evaluated to
determine his eligibility for the Diversion Center Incarceration
Program. 	See Code § 19.2-316.3. 	Following the probation
officer's testimony, the trial judge entered an order containing
the following pertinent rulings:
It appearing to the Court that on
December 13, 1995, in the Circuit Court of
the City of Fredericksburg, Ronnie Lee
Rogers was convicted of felony shoplifting.
He was sentenced to serve two (2) years in
the state penitentiary, and one (1) year and
six (6) months of said sentence was
suspended on condition that he remain of
good behavior for a period of five (5)
years, supervised probation and payment of
court costs.
After hearing the evidence and argument
of counsel, the Court finds that [Rogers] is
in violation of the terms and conditions of
his suspended sentence, and it is ORDERED
that he is sentenced to confinement in jail
through January 5, 1998.
It is ORDERED that this case is continued
to January 5, 1998 at 9:00 a.m., for final
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disposition, and it is ORDERED that [Rogers]
remain incarcerated until that time. 	It
appearing to the Court that [Rogers] has a
charge in the Prince William Circuit Court,
and if he is convicted and sentenced to
serve an active period of time, the Attorney
for [Rogers] is instructed to advise the
Court. 	If no incarceration is imposed by
Prince William Circuit Court or if he is
released by Prince William, he shall be
returned to the Rappahannock Regional Jail.
The Department of Probation and Parole
shall evaluate [Rogers] for his eligibility
for participation in the Men's Diversion
Center Incarceration Program and file their
report with the Court and with counsel. 	In
the alternative, [Rogers'] counsel shall
inquire of the Piedmont Program to determine
[Rogers'] eligibility for said program, and
shall advise the Court by January 5, 1998.
On January 5, 1998, the trial judge again heard testimony
from the probation officer, who testified that Rogers was
eligible for both programs. 	Noting Rogers' history of arrests
for alcohol-related offenses and the program costs, the
probation officer recommended placing Rogers in the Diversion
Center Incarceration Program. 	Rogers' attorney argued that the
Piedmont House program was the appropriate placement and further
argued that because at the previous hearing, the trial judge
revoked several weeks of the suspended sentence, the trial judge
did "not [now have] an option to send [Rogers] to [the Diversion
Center Incarceration] program."
The trial judge again ruled that Rogers "is in violation of
the terms and conditions of the previously" suspended sentence
and probation. 	Invoking Code § 19.2-316.3, the trial judge
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revoked the "balance of the entire sentence and resuspended" it
on condition that Rogers successfully complete the Diversion
Center Incarceration Program. 	Rogers' attorney objected and
stated that the trial judge's December 10, 1997 ruling, which
incarcerated Rogers until January 5, 1998, was a sentence that
Rogers had served. 	The trial judge overruled the objection and
explained that Rogers' incarceration had been "transition time"
for which the trial judge gave Rogers "credit for the time
served while . . . waiting to enter" the Diversion Center
Incarceration Program.
II.
In pertinent part, Code § 19.2-316.3 provides as follows:
1. 	Following . . . a finding that the
defendant's probation should be revoked,
upon motion of the defendant, the court may
order such defendant committed to the
Department of Corrections for a period not
to exceed forty-five days from the date of
commitment for evaluation and diagnosis by
the Department to determine suitability for
participation in the Diversion Center
Incarceration Program. . . .
2. 	Upon determination that (i) such
commitment is in the best interest of the
Commonwealth and the defendant and (ii)
facilities are available for the confinement
of the defendant, the Department shall
recommend to the court in writing that the
defendant be committed to the Diversion
Center Incarceration Program.
3. 	Upon receipt of such recommendation and
a determination by the court that the
defendant will benefit from the program and
is capable of returning to society as a
productive citizen following successful
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completion of the program, and if the
defendant would otherwise be committed to
the Department, the court (i) shall impose
sentence, suspend the sentence, and place
the defendant on probation pursuant to this
section or (ii) following a finding that the
defendant has violated the terms and
conditions of his probation previously
ordered, shall place the defendant on
probation pursuant to this section. 	Such
probation shall be conditioned upon the
defendant's entry into and successful
completion of the Diversion Center
Incarceration Program.
(Emphasis added).
Rogers contends the trial judge had no authority to
sentence him pursuant to Code § 19.2-316.3 because the trial
judge had earlier revoked a part of Rogers' suspended sentence
and sentenced him to a period of incarceration for violating his
suspended sentence and probation. 	The Commonwealth argues that
Rogers failed to object at the earlier hearing and thereby sent
the unmistakable message that the trial judge's proposal was a
permissible resolution of the matter. 	We agree in part with
both positions.
At the December 1997 hearing, the trial judge ruled "that
[Rogers] has violated the terms and conditions of the previously
imposed probation, . . . [and] sentence[d] him to serve . . . a
period of incarceration through January 5, 1998." 	Although the
trial judge expressly stated that "[t]his is a conditional
order," he also noted that, "[b]y being incarcerated for a
period approaching two months, [Rogers] would also have been, in
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essence, punished for his violation of the terms and conditions
of the previously imposed sentence." 	It is likely that Rogers
did not object at that time because the trial judge made the
following oral ruling which left open the possibility of a
referral to the Piedmont House program that Rogers sought:
The Office of Probation and Parole shall
evaluate [Rogers] to determine his
eligibility for the Men's Diversion Center
Incarceration Program between now and
January 5 returning a report to the Court
and to all parties in ample time for a
hearing on that date.
In the alternative, Counsel for [Rogers],
if he is found to be ineligible for the
Men's Diversion Center Incarceration
Program, shall inquire of the Piedmont
program as to his ability to return and be
readmitted into that program effective
January 5, 1998, and shall report that fact
to the Court at the hearing on January 5th.
That way the Court will be advised as to
whether or not both options are still
available and will then choose on that date
what the Court feels to be an appropriate
program.
In any event, Code § 19.2-316.3 permits the trial judge to
cause a defendant such as Rogers to be temporarily incarcerated
as follows:
[F]ollowing a finding that the defendant's
probation should be revoked, upon motion of
the defendant, the court may order such
defendant committed to the Department of
Corrections for a period not to exceed
forty-five days from the date of commitment
for evaluation and diagnosis by the
Department to determine suitability for
participation in the Diversion Center
Incarceration Program. 	The evaluation and
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diagnosis may be conducted by the Department
at any state or local correctional facility,
probation and parole office, or other
location deemed appropriate by the
Department.
Code § 19.2-316.3(1). 	Although the trial judge indicated that
the temporary detention of Rogers "would also . . . [be], in
essence, punish[ment] for his violation of the terms and
conditions of the previously [suspended] sentence," we believe
that statement was made within the context of the trial judge's
decision to detain Rogers while the attorneys explored the two
program options. 	Certainly, the act of incarcerating Rogers was
permitted by Code § 19.2-316.3 and the incarceration, if done
pursuant to that statute, could have exceeded the period of time
Rogers was in fact incarcerated.
The trial judge stated the order was "conditional" and
apparently intended to preserve for Rogers the option of a
referral to the Piedmont House program or to the Diversion
Center Incarceration Program. 	Any error the trial judge may
have made in stating that the temporary detention would be
punishment was harmless. 	The incarceration exposed Rogers to no
greater detriment than he would have experienced had the trial
judge followed the precise strictures of Code § 19.2-316.3 and
stated he was incarcerating Rogers for the sole purpose of
evaluation and diagnosis. 	Thus, despite the trial judge's
December 10, 1997 statement that he was incarcerating Rogers as
punishment for violating conditions of the suspended sentence, a
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review of the entire record shows that the trial judge
substantially followed Code § 19.2-316.3. 	Indeed, as credit to
Rogers for the time he was incarcerated pending the suitability
evaluation and diagnosis, the trial judge reduced Rogers'
remaining suspended sentence even though Code § 19.2-316.3 did
not require such a result.
At oral argument before this Court, Rogers' attorney
contended that referral to the Diversion Center Incarceration
Program may only occur "upon motion of the defendant." 	Code
§ 19.2-316.3. 	She argued that Rogers did not make any such
motion. 	This objection was not made at trial. 	See Rule 5A:18.
More significant, however, we believe the record clearly
establishes that when Rogers was before the trial judge and in
jeopardy of having his sentence revoked for probation
violations, Rogers was seeking referral to a treatment program.
Although Piedmont House was clearly his preference, Rogers was
aware at the December hearing that the trial judge was seeking
information regarding referrals for each program. 	Thus,
although the motion from Rogers was not specific as to the
Diversion Center Incarceration Program, we conclude that the
trial judge's consideration of both programs upon Rogers' motion
for referral to Piedmont House was not an abuse of discretion.
III.
Rogers also contends the trial judge "erred in modifying a
sentence imposed at the December 10, 1997 hearing on January 5,
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1998 in violation of Code § 19.2-303 and Rule 1:1." 	Thus,
Rogers argues he should be released because he has served the
sentence the trial judge ordered. 	We disagree.
Code § 19.2-303 pertains to initial sentencing decisions
following conviction, not to probation revocation procedures.
Code § 19.2-303 has no applicability to the facts and procedural
posture of this case. 	Furthermore, as we earlier noted, the
trial judge was authorized to incarcerate Rogers "for a period
not to exceed forty-five days" pending an evaluation as to
suitability for placement in the Diversion Center Incarceration
Program. 	See Code § 19.2-316.3. 	The incarceration did not
exceed that limitation.
Rogers correctly notes that Rule 1:1 prohibits "[a]ll final
judgments, orders, and decrees" from being modified after
twenty-one days. 	However, the December 10, 1997 order was not a
final order under Rule 1:1. 	The trial judge ruled that he was
"conditional[ly]" ordering Rogers incarcerated until the trial
judge had sufficient information to make a determination
concerning the alternative programs and to issue a final order.
Code § 19.2-316.3 permitted that incarceration as an interim
measure. 	Thus, we conclude that the trial judge's December 10,
1997 order was such an interim decision. 	At the January 5, 1998
hearing, the trial judge received the evaluation pursuant to
Code § 19.2-316.3 and entered a sentencing order. 	That order
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was the final order, which the trial judge had authority to
enter.
The judgment is affirmed.
Affirmed.
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