Present: All the Justices
RODNEY W. DORR OPINION BY v. Record No. 112131 JUSTICE DONALD W. LEMONS November 1, 2012 HAROLD CLARKE, DIRECTOR
FROM THE CIRCUIT COURT OF FREDERICK COUNTY John E. Wetsel, Jr., Judge
In this appeal, we consider whether the Circuit Court of
Frederick County ("circuit court") erred when it held that
Rodney Wade Dorr ("Dorr") was not entitled to credit toward his
Virginia sentence for the period he was detained in a Virginia
jail awaiting trial. At that time, he was a West Virginia
prisoner receiving credit toward his West Virginia sentence.
We also consider whether the circuit court erred when it
recharacterized Dorr's pleading, without providing him notice
and an opportunity to be heard.
I. Facts and Proceedings Below
On February 26, 2009, Dorr was convicted of "one Felony
Count of Entry of a Dwelling House without Breaking by virtue
of his Plea of Guilty" in the Circuit Court of Berkeley County
in West Virginia (the "West Virginia court"). The West
Virginia court sentenced Dorr to "a term of not less tha[n] one
(1) year and no more than ten (10) years in the Penitentiary
House of th[at] State" and ordered his "[s]entence shall run . . . current with any sentence imposed in the Commonwealth of
Virginia after February 26, 2009."
Dorr was serving his West Virginia prison sentence when he
was transferred from West Virginia to Virginia on August 20,
2009, pursuant to the Interstate Agreement on Detainers, Code
§§ 53.1-210 through -215, to stand trial on criminal offenses
in Frederick County, Virginia. Dorr was housed in the
Northwestern Regional Adult Detention Center (the "Detention
Center") in Frederick County while awaiting trial. On January
5, 2010, Dorr was found guilty in the Circuit Court of
Frederick County of three felony grand larceny offenses, one
felony offense of eluding, and one misdemeanor offense of
driving on a suspended license.
On April 22, 2010, Dorr appeared before the circuit court
for a sentencing hearing on those five offenses. The circuit
court imposed sentences, pursuant to a plea agreement, as
follows: (1) a total of five years' imprisonment on the three
grand larceny charges; (2) ninety days' imprisonment on the
eluding charge; and (3) thirty days' imprisonment on the charge
of driving on a suspended license. The circuit court suspended
four years of Dorr's total sentence of five years and one
hundred and twenty days. The sentencing order stated: "The
defendant shall be given credit for time spent in confinement
2 while awaiting trial, pursuant to Virginia Code Section 53.1-
187." 1
On April 29, 2010, Dorr was transferred back to West
Virginia to serve the remainder of his sentence in that state.
The Virginia Department of Corrections ("VDOC") received a
document from the Administrator of the Detention Center titled
"Credit For Time Spent in Jail," which contained the amount of
time Dorr was sentenced for each of his Virginia convictions.
The "Credit For Time Spent in Jail" document also contained a
section titled "Jail Credit Information," which showed that
Dorr was to receive credit toward his Virginia sentences for
the time he spent in the Detention Center from August 20, 2009
until April 29, 2010, when he was transferred back to West
Virginia.
After Dorr finished serving his West Virginia sentence, he
was transferred back to Virginia to serve his sentence on the
five offenses for which he was convicted in the Commonwealth.
VDOC provided Dorr with a "legal update" sheet shortly after
his arrival, which indicated that he had not received credit
for the time spent incarcerated from August 20, 2009 until
April 29, 2010.
1 Code § 53.1-187 provides, in relevant part, that "[a]ny person who is sentenced to a term of confinement in a correctional facility shall have deducted from any such term all time actually spent by the person . . . in a state or local correctional facility awaiting trial . . . ."
3 On July 1, 2011, Dorr, proceeding pro se, filed a motion
for a writ of mandamus (the "petition") in the circuit court
against Harold Clarke ("Clarke"), the Director of VDOC, asking
the court to order VDOC "to comply with [the circuit court's]
order . . . giving [Dorr] full credit for time spent
incarcerated on the current charges he is now serving."
Specifically, Dorr claimed that he should receive credit for
his time in the Detention Center from August 20, 2009 to April
29, 2010. The circuit court ordered VDOC to file a response to
Dorr's petition.
In response, Clarke moved to dismiss Dorr's petition,
recharacterizing his "motion of mandamus" 2 as a petition for
writ of habeas corpus because Dorr requested relief in the form
of a shorter period of incarceration. Clarke argued that the
time Dorr alleged should be credited toward his sentence was
properly applied toward his out-of-state sentence because, at
that time, he was still a West Virginia state prisoner serving
time on his West Virginia sentence. Clarke also argued that
Dorr "is not entitled to receive credit for time served on
charges in one jurisdiction on his sentence from different
charges in a different jurisdiction unless" the Virginia court
ordered that, pursuant to Code § 19.2-308, the sentences be
2 Although Dorr labeled his pleading "motion of mandamus," this opinion will refer to it as a "motion for mandamus."
4 served concurrently. Although Dorr alleged in his petition
that "[t]he West Virginia court imposed [his] sentence to run
'current' with any sentence imposed in the Commonwealth of
Virginia after February 26, 2009," Clarke argued that Virginia
is not bound by the West Virginia order.
Dorr filed a response to Clarke's motion to dismiss,
requesting that the circuit court deny Clarke's motion. Dorr
responded that he had filed a motion for mandamus asking the
circuit court to order VDOC to give him credit for time served
because the sentencing order provided that Dorr "shall be given
credit for time spent in confinement while awaiting trial,
pursuant to Virginia Code Section 53.1-187."
In its September 13, 2011 order, the circuit court
concluded that Dorr's motion for writ of mandamus was in fact a
petition for a writ of habeas corpus and that Dorr "was on
detainer from West Virginia [from August 20, 2009 to April 29,
2010] and continued to serve his West Virginia sentence during
that time." The circuit court held that: (1) Dorr was "not
entitled to receive credit for time served on charges in one
[sic] another state on his later sentence from different
charges in Virginia"; (2) Dorr "has been afforded all credit
for time served for which he is entitled"; and (3) Dorr's "time
has been accurately computed in accordance with Virginia
5 statutes and VDOC time computation practices." Consequently,
the circuit court dismissed Dorr's petition.
Dorr timely filed his petition for appeal, and we granted
Dorr's appeal on the following assignments of error:
1. The circuit court judge erred when he allowed the respondent to recharacterize the pleading to the court, without first giving the petitioner ample notice, or the opportunity to withdraw or amend the pleading, nor informing him of the consequences.
2. The circuit court judge erred in dismissing the motion of mandamus, and not ordering that the respondent, Va. D.O.C., was to abide by the April 22, 2010 court order stating that the defendant is to be credited for all time spent incarcerated prior to conviction and sentencing.
II. Analysis
A. Standard of Review
The issue whether the circuit court erred in
recharacterizing Dorr's motion for a writ of mandamus as a
petition for a writ of habeas corpus is a question of law and,
therefore, we review the record de novo on appeal. Alcoy v.
Valley Nursing Homes, Inc., 272 Va. 37, 41, 630 S.E.2d 301, 303
(2006). Regardless whether Dorr's petition is characterized as
a mandamus petition or a habeas petition, we review the circuit
court's decision to deny his petition de novo. See Moreau v.
Fuller, 276 Va. 127, 133, 661 S.E.2d 841, 845 (2008); Green v.
Young, 264 Va. 604, 608-09, 571 S.E.2d 135, 138 (2002). "[T]he
determination whether mandamus lies as an extraordinary remedy
6 [is a] question[] of law subject to de novo review upon
appeal." Moreau, 276 Va. at 133, 661 S.E.2d at 845. Moreover,
"whether a prisoner is entitled to habeas relief is a mixed
question of law and fact. Consequently, a circuit court's
conclusions of law are not binding on this Court but are
subject to review to ascertain whether the circuit court
correctly applied the law to the facts." Green, 264 Va. at
608-09, 571 S.E.2d at 138 (citations omitted).
B. Credit for Time Served
Dorr asserts that the circuit court erred in dismissing
the motion for mandamus, and not ordering the respondent to
comply with the April 22, 2010 court order stating that the
defendant is to be credited for all time spent incarcerated
prior to conviction and sentencing. The Interstate Agreement
on Detainers "is a congressionally sanctioned interstate
compact within the Compact Clause" of the United States
Constitution. Carchman v. Nash, 473 U.S. 716, 719 (1985).
Dorr's transfer to Virginia from West Virginia was made
pursuant to the Interstate Agreement on Detainers. 3 See Code
§ 53.1-210; W. Va. Code § 62-14-1. Article V(a) of the
Interstate Agreement on Detainers provides that a state where a
prisoner is currently incarcerated (the sending state) may send
3 Both Virginia and West Virginia are party states. Code § 53.1-210; W. Va. Code § 62-14-1.
7 that prisoner to another state where the prisoner has
outstanding criminal charges (the receiving state) to stand
trial. Code § 53.1-210, art. V(a); W. Va. Code § 62-14-1, art.
V(a). Article V(d) of the Interstate Agreement on Detainers
describes this process as "temporary custody," and provides
that:
The temporary custody referred to in this agreement shall be only for the purpose of permitting prosecution on the charge or charges contained in one or more untried indictments, informations or complaints which form the basis of the detainer or detainers or for prosecution on any other charge or charges arising out of the same transaction.
Code § 53.1-210, art. V(d); W. Va. Code § 62-14-1,
art. V(d).
Moreover, Article V(f) of the Interstate Agreement on
Detainers provides that "[d]uring the . . . temporary custody
or while the prisoner is otherwise being made available for
trial as required by this agreement, time being served on the
sentence [imposed by the sending state] shall continue to run
. . . ." Code § 53.1-210, art. V(f); W. Va. Code § 62-14-1,
art. V(f). Article V(g) of the Interstate Agreement on
Detainers further states that:
For all purposes other than that for which temporary custody as provided in this agreement is exercised, the prisoner shall be deemed to remain in the custody of and subject to the jurisdiction of the sending state and any escape from temporary custody may be dealt with in the
8 same manner as an escape from the original place of imprisonment or in any other manner permitted by law.
Code § 53.1-210, art. V(g) (emphasis added); W. Va. Code § 62-
14-1, art. V(g) (emphasis added).
Based on the plain language of the Interstate Agreement on
Detainers, Virginia gained "temporary custody" of Dorr when he
was sent from West Virginia to Virginia to stand trial on the
five criminal offenses in Frederick County. Code § 53.1-210,
art. V(a)&(d); W. Va. Code § 62-14-1, art. V(a)&(d). While in
Virginia, Dorr "remain[ed] in the custody of and subject to the
jurisdiction of [West Virginia]." Code § 53.1-210, art. V(g);
W. Va. Code § 62-14-1, art. V(g). Dorr remained a West
Virginia prisoner and received credit toward his West Virginia
sentence from August 20, 2009 until April 29, 2010, while he
was incarcerated in Virginia. See Code § 53.1-210, art. V(g);
W. Va. Code § 62-14-1, art. V(g). Accordingly, we must
consider whether Dorr should receive credit toward his Virginia
sentence for the time he spent in the Virginia Detention Center
in addition to the credit he received toward his West Virginia
sentence pursuant to the Interstate Agreement on Detainers. 4
4 At the Court's direction, the parties also addressed whether this matter is moot because of Dorr's release from Virginia custody in April 2012. After considering the question, the Court determines that the case is not moot.
9 We addressed a similar issue in Carroll v. Johnson, 278
Va. 683, 687, 685 S.E.2d 647, 648 (2009), where we considered
whether John Carroll ("Carroll") "was entitled to a credit
toward his sentence for time served awaiting trial in Virginia
on a detainer from another state." In language similar to that
used by the Virginia sentencing court in the present case, in
Carroll the sentencing order "provided that Carroll shall be
given credit for time spent in confinement while awaiting trial
pursuant to Code § 53.1-187." Id. at 697, 685 S.E.2d at 654
(internal quotation marks omitted). We concluded that:
[w]hile Carroll was in Virginia custody, he was actually serving his New Jersey sentence because the Interstate Agreement on Detainers provides that he receive credit toward his New Jersey sentence for that time. Thus, as a matter of law, Carroll is not entitled to credit toward his Virginia sentence for the 288 days he spent in Virginia custody incident to his trial because he was in Virginia's temporary custody as a New Jersey prisoner for the limited purpose of being tried on his pending Virginia charges.
Id. at 698, 685 S.E.2d at 654 (citations omitted).
Dorr argues that because the West Virginia sentencing
order provided that his sentence was to "run concurrently with
whatever sentence he received in Virginia," the present case is
unlike Carroll and, therefore, Carroll does not control the
resolution of this case. We disagree. Code § 53.1-187 states,
in relevant part, that "[a]ny person who is sentenced to a term
of confinement in a correctional facility shall have deducted
10 from any such term all time actually spent by the person . . .
in a state or local correctional facility awaiting trial
. . . ." Dorr's sentencing order, which contained similar
language to Carroll's sentencing order regarding credit for
time served, provided that Dorr "shall be given credit for time
spent in confinement while awaiting trial, pursuant to Virginia
Code Section 53.1-187."
As previously stated, Dorr received credit toward his West
Virginia sentence while incarcerated in Virginia from August
20, 2009 until April 29, 2010. See Code 53.1-210, art. V(g);
W. Va. Code § 62-14-1, art. V(g). Despite Dorr's argument that
he is entitled to double credit because the West Virginia order
provided that his sentence run "current with" subsequent
Virginia sentences, Virginia law provides that "[w]hen any
person is convicted of two or more offenses, and sentenced to
confinement, such sentences shall not run concurrently, unless
expressly ordered by the court." Code § 19.2-308.
Importantly, Dorr's Frederick County sentencing order provided
that "[t]he sentences imposed shall be served consecutively to
and not concurrently with each other."
As we concluded in Carroll, we hold that, as a matter of
law, Dorr is not entitled credit toward his Virginia sentence
for the time he was incarcerated from August 20, 2009 until
April 29, 2010, while he was in Virginia custody serving time
11 for his West Virginia sentence. See Carroll, 278 Va. at 698,
685 S.E.2d at 654.
C. Recharacterization of Dorr's Petition
Dorr argues that
the circuit court cannot recharacterize a pro se litigant's motion as a petition for writ of habeas corpus unless the court notifies the petitioner that the court intends to recharacterize the pleading or warned the petitioner that the recharacterization means that any subsequent writs of habeas corpus will be restricted under Virginia Code § 8.01-654(B)(2).
Code § 8.01-654(B)(2) "is plain and unambiguous, clearly
limiting the right of a prisoner to file successive petitions
for writs of habeas corpus. The key provisions of this
statutory language focus on 'the time of filing' the first
habeas petition." Dorsey v. Angelone, 261 Va. 601, 603, 544
S.E.2d 350, 352 (2001). Moreover,
the provisions of Code § 8.01-654(B)(2) require a prisoner to include all claims that he intends to bring before the court in his first habeas petition. Regardless of the manner in which that habeas petition is resolved, he may not thereafter file a subsequent habeas petition that seeks relief based upon any allegations of fact that were known to him at the time of the initial filing and not included therein.
Daniels v. Warden of the Red Onion State Prison, 266 Va. 399,
403, 588 S.E.2d 382, 384 (2003).
In Castro v. United States, 540 U.S. 375 (2003), the
Supreme Court of the United States considered whether lower
12 courts may recharacterize a pro se litigant's motion as a
request for habeas relief under 28 U.S.C. § 2255 ("§ 2255").
It concluded that the recharacterization powers of lower courts
are limited in the following way:
The limitation applies when a court recharacterizes a pro se litigant's motion as a first § 2255 motion. In such circumstances the district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on "second or successive" motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has. If the court fails to do so, the motion cannot be considered to have become a § 2255 motion for purposes of applying to later motions the law's "second or successive" restrictions.
Castro, 540 U.S. at 383. We adopt this limitation on a trial
court's power to recharacterize a pro se litigant's pleading in
the present context. Virginia trial judges must notify pro se
litigants of the potential consequences when recharacterizing
their pleading. However, if thereafter the pro se litigant is
given the opportunity to withdraw or amend the pleading to
state all then-available claims and does not withdraw the
pleading or agrees to the recharacterization after receiving
notice and warning from the trial judge, then Code § 8.01-654
and its associated limitations apply.
13 Here, Dorr filed a motion for mandamus to compel VDOC to
comply with the circuit court's sentencing order dated April
22, 2010. Clarke moved to dismiss Dorr's petition,
recharacterizing his motion as a petition for a writ of habeas
corpus. Dorr responded that he sought mandamus relief, not
habeas corpus relief, and requested that the circuit court deny
Clarke's motion. The circuit court then recharacterized Dorr's
motion, without providing him notice or an opportunity to be
heard, and ordered that his petition be dismissed.
Accordingly, we hold that Dorr's petition cannot be considered
his first habeas petition for purposes of limiting his right to
file a subsequent habeas petition under Code § 8.01-654.
Moreover, we conclude that a pro se litigant is not
limited to challenging an unwarned recharacterization on
appeal, but may do so when a later-filed habeas petition is
challenged as being a second habeas application barred by the
successive petitions provision of the statute. "[T]he very
point of the warning is to help the pro se litigant understand
not only (1) whether he should withdraw or amend his motion,
but also (2) whether he should contest the recharacterization,
say, on appeal." Castro, 540 U.S. at 384 (emphasis in
original). Therefore, "[t]he 'lack of warning' prevents [the
pro se litigant from] making an informed judgment in respect to
the latter just as it does in respect to the former." Id.
14 Accordingly, we hold that "an unwarned recharacterization
cannot count as a [habeas petition] for purposes of the 'second
or successive' provision [in Code § 8.01-654(B)(2)], whether
the unwarned pro se litigant does, or does not, take an
appeal." See Castro, 540 U.S. at 384.
Despite this, "[u]nder the doctrine of harmless error, we
will affirm the circuit court's judgment when we can conclude
that the error at issue could not have affected the court's
result." Forbes v. Rapp, 269 Va. 374, 382, 611 S.E.2d 592, 597
(2005). Here, Dorr challenged the recharacterization of his
petition on appeal; however, he is not required to do so until
his first actual habeas petition is challenged as being a
second or successive habeas petition barred by the successive
petitions provision of Code § 8.01-654. Regardless of the
characterization of his petition, Dorr was not entitled to
credit toward his Virginia sentence from August 20, 2009 until
April 29, 2010, because during this time period he was serving
time for his West Virginia sentence. Accordingly, we hold that
the recharacterization could not have affected the circuit
court's conclusion because, under the rule we announce here,
Dorr would not be barred from filing a future petition for a
writ of habeas corpus as a successive habeas petition, and the
circuit court properly concluded that Dorr was not entitled to
15 credit toward his Virginia sentence for the time he spent in
the Detention Center from August 20, 2009 until April 29, 2010.
III. Conclusion
We hold that: (1) the circuit court did not err in denying
Dorr's petition because he was not entitled to credit toward
his Virginia sentence from August 20, 2009 until April 29,
2010; (2) the circuit court erred in recharacterizing Dorr's
petition without providing him notice and the opportunity to be
heard; and (3) the error was harmless because Dorr was not
required to challenge the recharacterization on appeal and he
was not entitled to credit toward his Virginia sentence from
August 20, 2009 until April 29, 2010.
For these reasons, we will affirm the judgment of the
circuit court.
Affirmed.