PRESENT: All the Justices
DONTE LAMAR JONES OPINION BY v. Record No. 131385 JUSTICE CLEO E. POWELL October 31, 2014 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Richard Y. Atlee, Jr., Judge
This appeal arises from a motion to vacate his sentence
filed by Donte Lamar Jones (“Jones”) twelve years after he pled
guilty to capital murder in exchange for a sentence of life
without the possibility of parole. Jones argues that the
Supreme Court of the United States’ decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012), applies retroactively to his
case. Miller held that the Eighth Amendment forbids a
sentencing scheme that mandates life imprisonment without the
possibility of parole for juvenile offenders without affording
the decision maker the opportunity to consider mitigating
circumstances. Id. at 2460. Therefore, Jones contends that he
is entitled to a new sentencing proceeding because he was
seventeen years old when he committed the murder.
We hold that because the trial court has the ability under
Code § 19.2-303 to suspend part or all of the life sentence
imposed for a Class 1 felony conviction, the sentencing scheme
applicable to Jones’ conviction was not a mandatory life without
the possibility of parole scheme. Therefore, even if Miller applied retroactively, it would not apply to the Virginia
sentencing statutes relevant here. Thus, the circuit court
lacked jurisdiction to grant Jones’ motion.
I. FACTS AND PROCEEDINGS
In 2000, Jones was charged with capital murder, five counts
of use of a firearm in the commission of a felony, two counts of
abduction, armed robbery, malicious wounding, and wearing a mask
in a prohibited place for his role in an armed robbery at a
convenience store in which a store clerk was murdered. He was
seventeen years old at the time. On June 5, 2001, Jones agreed
to plead guilty to all charges in exchange for being sentenced
to life without the possibility of parole on the capital murder
charge. In so doing, he also “waive[d] any and all rights of
appeal with regard to any substantive or procedural issue
involved in this prosecution.” He was immediately sentenced to
life for the capital murder conviction. Because there was no
agreement as to the sentence for the remaining charges, a
presentence report was prepared for the other charges, and a
sentencing hearing was set for a later date. Jones was
ultimately sentenced to life plus 68 years on the remaining
charges.
On June 5, 2013, Jones, proceeding pro se, filed a motion
to vacate his sentence relying upon the Supreme Court’s decision
2 in Miller. He argued that Virginia’s mandatory sentencing
scheme for capital murder, as applied to juveniles, is
unconstitutional because it does not consider mitigating
factors. Jones also argued that Code §§ 18.2-31 and -10 are
unconstitutional because they do not allow for any other
sentence for a juvenile charged with capital murder other than
mandatory life without the possibility of parole. Finally, he
argued that Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544
(2009), allows a circuit court to set aside a void or unlawful
sentence at any time and that his sentence is void ab initio
because it is in excess of what is legal and should be vacated.
Alternatively, Jones asserted that pursuant to Code § 19.2-303,
a circuit court may suspend all or part of a sentence at any
time. Jones asked the circuit court to so do.
On June 13, 2013, the circuit court denied Jones’ motion
without a hearing because “there [was] nothing new in mitigation
of the offense.” This appeal follows.
II. ANALYSIS
In its 2012 decision in Miller, the Supreme Court held that
sentencing schemes that “mandate life without parole for those
under the age of 18 at the time of their crimes” such as
Alabama’s Code § 15-22-50 1 and Arkansas’ Code § 5-4-104(e)(1)(A)
1 The Supreme Court in Miller referred to the murder and capital murder provisions of the Alabama Code that provided for
3 at issue in that case, “violate[] the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” 132 S.Ct. at
2460. Jones argues that Miller applies retroactively to his
case because he received a mandatory minimum sentence of life
without the possibility of parole and, therefore, under Miller,
he is entitled to a new sentencing proceeding in which
individualized sentencing factors are considered. We disagree.
Jones was sentenced in 2001 and, therefore, the circuit
court would only have jurisdiction to grant his motion to vacate
his sentence if his original sentencing order was void ab
initio. Amin v. County of Henrico, 286 Va. 231, 235, 749 S.E.2d
169, 171 (2013) (holding that “Rule 1:1, which limits the
jurisdiction of a court to twenty-one days after entry of the
final order, does not apply to an order which is void ab
initio.”).
At the time that Jones murdered a convenience store clerk
during a robbery, a person who was over the age of sixteen and
convicted of capital murder, a Class 1 felony, could be punished
by death or “imprisonment for life.” Code § 18.2-10 (Cum. Supp.
2000). He now argues that his sentence is invalid because
“punishment of life without parole, “ Ala. Code §§ 13A-5-40(9), 13A-6-2(c), which are cross-referenced in Ala. Code § 15-22-50, discussed in the present opinion.
4 Virginia’s sentencing scheme is mandatory and therefore is
unconstitutional.
To decide whether Jones’ sentence is void, we must first
determine whether Virginia’s sentencing scheme for capital
murder imposed a mandatory minimum sentence of life without the
possibility of parole. We conclude that it did not because the
trial judge had the authority under Code § 19.2-303 to suspend
the sentence. In 2000, the relevant portion of Code § 19.2-303
provided, as it does now, that “[a]fter conviction, whether with
or without jury, the court may suspend imposition of sentence or
suspend the sentence in whole or part.” Nothing restricted its
application to a certain type of sentence. Unlike the statutes
in Alabama and Arkansas found unconstitutional in Miller, there
was no language limiting the power of the court to suspend a
portion of the sentence.
Only where the General Assembly has prescribed a mandatory
minimum sentence imposing an inflexible penalty has it “divested
trial judges of all discretion respecting punishment.” In re:
Commonwealth, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985). 2 The
2 See Code §§ 18.2-36.1(B) (Cum. Supp. 2000) (imposing a one year mandatory minimum sentence for a person convicted of aggravated involuntary manslaughter); 18.2-51.1 (Cum. Supp. 2000) (establishing mandatory minimum penalties for maliciously wounding a law enforcement officer or firefighter); 18.2-57 (Cum. Supp. 2000) (setting mandatory minimum sentences for certain types of assaults and batteries); 18.2-121 (Cum. Supp.
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PRESENT: All the Justices
DONTE LAMAR JONES OPINION BY v. Record No. 131385 JUSTICE CLEO E. POWELL October 31, 2014 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF YORK COUNTY Richard Y. Atlee, Jr., Judge
This appeal arises from a motion to vacate his sentence
filed by Donte Lamar Jones (“Jones”) twelve years after he pled
guilty to capital murder in exchange for a sentence of life
without the possibility of parole. Jones argues that the
Supreme Court of the United States’ decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012), applies retroactively to his
case. Miller held that the Eighth Amendment forbids a
sentencing scheme that mandates life imprisonment without the
possibility of parole for juvenile offenders without affording
the decision maker the opportunity to consider mitigating
circumstances. Id. at 2460. Therefore, Jones contends that he
is entitled to a new sentencing proceeding because he was
seventeen years old when he committed the murder.
We hold that because the trial court has the ability under
Code § 19.2-303 to suspend part or all of the life sentence
imposed for a Class 1 felony conviction, the sentencing scheme
applicable to Jones’ conviction was not a mandatory life without
the possibility of parole scheme. Therefore, even if Miller applied retroactively, it would not apply to the Virginia
sentencing statutes relevant here. Thus, the circuit court
lacked jurisdiction to grant Jones’ motion.
I. FACTS AND PROCEEDINGS
In 2000, Jones was charged with capital murder, five counts
of use of a firearm in the commission of a felony, two counts of
abduction, armed robbery, malicious wounding, and wearing a mask
in a prohibited place for his role in an armed robbery at a
convenience store in which a store clerk was murdered. He was
seventeen years old at the time. On June 5, 2001, Jones agreed
to plead guilty to all charges in exchange for being sentenced
to life without the possibility of parole on the capital murder
charge. In so doing, he also “waive[d] any and all rights of
appeal with regard to any substantive or procedural issue
involved in this prosecution.” He was immediately sentenced to
life for the capital murder conviction. Because there was no
agreement as to the sentence for the remaining charges, a
presentence report was prepared for the other charges, and a
sentencing hearing was set for a later date. Jones was
ultimately sentenced to life plus 68 years on the remaining
charges.
On June 5, 2013, Jones, proceeding pro se, filed a motion
to vacate his sentence relying upon the Supreme Court’s decision
2 in Miller. He argued that Virginia’s mandatory sentencing
scheme for capital murder, as applied to juveniles, is
unconstitutional because it does not consider mitigating
factors. Jones also argued that Code §§ 18.2-31 and -10 are
unconstitutional because they do not allow for any other
sentence for a juvenile charged with capital murder other than
mandatory life without the possibility of parole. Finally, he
argued that Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544
(2009), allows a circuit court to set aside a void or unlawful
sentence at any time and that his sentence is void ab initio
because it is in excess of what is legal and should be vacated.
Alternatively, Jones asserted that pursuant to Code § 19.2-303,
a circuit court may suspend all or part of a sentence at any
time. Jones asked the circuit court to so do.
On June 13, 2013, the circuit court denied Jones’ motion
without a hearing because “there [was] nothing new in mitigation
of the offense.” This appeal follows.
II. ANALYSIS
In its 2012 decision in Miller, the Supreme Court held that
sentencing schemes that “mandate life without parole for those
under the age of 18 at the time of their crimes” such as
Alabama’s Code § 15-22-50 1 and Arkansas’ Code § 5-4-104(e)(1)(A)
1 The Supreme Court in Miller referred to the murder and capital murder provisions of the Alabama Code that provided for
3 at issue in that case, “violate[] the Eighth Amendment’s
prohibition on ‘cruel and unusual punishments.’” 132 S.Ct. at
2460. Jones argues that Miller applies retroactively to his
case because he received a mandatory minimum sentence of life
without the possibility of parole and, therefore, under Miller,
he is entitled to a new sentencing proceeding in which
individualized sentencing factors are considered. We disagree.
Jones was sentenced in 2001 and, therefore, the circuit
court would only have jurisdiction to grant his motion to vacate
his sentence if his original sentencing order was void ab
initio. Amin v. County of Henrico, 286 Va. 231, 235, 749 S.E.2d
169, 171 (2013) (holding that “Rule 1:1, which limits the
jurisdiction of a court to twenty-one days after entry of the
final order, does not apply to an order which is void ab
initio.”).
At the time that Jones murdered a convenience store clerk
during a robbery, a person who was over the age of sixteen and
convicted of capital murder, a Class 1 felony, could be punished
by death or “imprisonment for life.” Code § 18.2-10 (Cum. Supp.
2000). He now argues that his sentence is invalid because
“punishment of life without parole, “ Ala. Code §§ 13A-5-40(9), 13A-6-2(c), which are cross-referenced in Ala. Code § 15-22-50, discussed in the present opinion.
4 Virginia’s sentencing scheme is mandatory and therefore is
unconstitutional.
To decide whether Jones’ sentence is void, we must first
determine whether Virginia’s sentencing scheme for capital
murder imposed a mandatory minimum sentence of life without the
possibility of parole. We conclude that it did not because the
trial judge had the authority under Code § 19.2-303 to suspend
the sentence. In 2000, the relevant portion of Code § 19.2-303
provided, as it does now, that “[a]fter conviction, whether with
or without jury, the court may suspend imposition of sentence or
suspend the sentence in whole or part.” Nothing restricted its
application to a certain type of sentence. Unlike the statutes
in Alabama and Arkansas found unconstitutional in Miller, there
was no language limiting the power of the court to suspend a
portion of the sentence.
Only where the General Assembly has prescribed a mandatory
minimum sentence imposing an inflexible penalty has it “divested
trial judges of all discretion respecting punishment.” In re:
Commonwealth, 229 Va. 159, 163, 326 S.E.2d 695, 697 (1985). 2 The
2 See Code §§ 18.2-36.1(B) (Cum. Supp. 2000) (imposing a one year mandatory minimum sentence for a person convicted of aggravated involuntary manslaughter); 18.2-51.1 (Cum. Supp. 2000) (establishing mandatory minimum penalties for maliciously wounding a law enforcement officer or firefighter); 18.2-57 (Cum. Supp. 2000) (setting mandatory minimum sentences for certain types of assaults and batteries); 18.2-121 (Cum. Supp. 2000) (imposing a mandatory minimum sentence of one year for a
5 absence of the phrase “mandatory minimum” in Code § 18.2-10
underscores the flexibility afforded a trial court in sentencing
pursuant to this statute.
Indeed, in 2004, the General Assembly codified this
principle in Code § 18.2-12.1, which states that “‘[m]andatory
minimum’ wherever it appears in this Code means, for purposes of
imposing punishment upon a person convicted of a crime, that the
court shall impose the entire term of confinement, the full
amount of the fine and the complete requirement of community
service prescribed by law. The court shall not suspend in full
or in part any punishment described as mandatory minimum
punishment.” See 2004 Acts ch. 461. This action codified the
settled interpretation of the phrase “mandatory minimum.”
Nothing about the punishment for a Class 1 felony requires
a mandatory minimum sentence under Virginia law. Cf., Ala. Code
person convicted of entering another’s property with the intent to cause damage because of the owner’s or occupant’s “race, religious conviction, color or national origin”); 18.2-154 (1996 Repl. Vol.) (requiring a mandatory minimum sentence for shooting a firearm at certain types of vehicles); 18.2-248 (Cum. Supp. 2000) (mandating mandatory minimum sentences for certain repeated drug distribution offenses); 18.2-270 (Cum. Supp. 2000) (levying mandatory minimum sentences for repeated driving while intoxicated convictions); 18.2-308.2:2 (Cum. Supp. 2000) (enacting mandatory minimum sentences for those who thwart the criminal background check for firearms in order to provide the firearms to those who may not legally possess firearms); and 46.2-341.28 (1998 Repl. Vol.) (setting a mandatory minimum sentence for a conviction for driving a commercial motor vehicle while intoxicated).
6 § 15-22-50 (“The court shall have no power to suspend the
execution of sentence imposed upon any person who has been found
guilty and whose punishment is fixed at death or imprisonment in
the penitentiary for more than 15 years.”); Ark. Code Ann. § 5-
4-104(e)(1)(A) (“The court shall not suspend imposition of
sentence as to a term of imprisonment nor place the defendant on
probation for [capital murder].”). 3 Code § 19.2-303 applies to
Virginia’s capital sentencing scheme, granting judges the
authority to suspend part or all of the offender’s sentence at
the trial court’s discretion.
Thus, when the trial court sentenced Jones, it had the
authority to suspend part or all of Jones’ life sentence. Code
§ 19.2-303 (2000 Repl. Vol.). Indeed, Jones recognized that a
circuit court continues to have the authority to suspend part or
all of a sentence pursuant to Code § 19.2-303, as he asked the
circuit court to so do in his motion to vacate. 4 Moreover, his
3 It is telling that the General Assembly has subsequently amended certain statutes to include a mandatory minimum sentence of life for certain crimes. See Code § 18.2-61(B)(2)(2012) (prescribing a mandatory minimum sentence of life imprisonment for certain types of rape). The General Assembly could have amended Code § 18.2-10 in a similar fashion. The fact that it did not underscores the point that Code § 18.2-10 does not impose a mandatory minimum sentence. 4 Jones’ request, however, was not timely as Jones had already been transferred to the Department of Corrections at the time of his request. Code § 19.2-303 (stating “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
7 conviction and sentencing order acknowledged the authority of
the trial court to suspend a portion of his sentence for capital
murder, as it specifically stated that he was sentenced to life
and no portion of that sentence was suspended.
Because a Class 1 felony does not impose a mandatory
minimum sentence under Virginia law, the circuit court had, at
the time it sentenced Jones, the authority to suspend part or
all of his life sentence. Therefore, Miller is not applicable
to the statute at issue here because one convicted of capital
murder does not receive a mandatory sentence of life without the
possibility of parole. 5
III. CONCLUSION
We hold that because a Class 1 felony does not impose a
mandatory minimum sentence under Virginia law, Miller is not
applicable even if it is to be applied retroactively. Thus,
Jones’ sentence was not void ab initio, and the trial court had
no jurisdiction to grant the motion. Therefore, we find no
reversible error in the trial court’s denial of Jones’ motion to
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.”). 5 Because Virginia’s capital punishment sentencing scheme does not include a mandatory minimum sentence, Miller could never apply in Virginia and, therefore, we need not address Jones’ other arguments as to the retroactivity of Miller.
8 vacate his sentence and will affirm the trial court’s judgment
denying the motion.
Affirmed.