Mohammad Hussein Abanda v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: July 23, 2024
• Docket: 1677232
• Status: Published

Opinion

VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 23rd day of July, 2024. PUBLISHED

Mohammad Hussein Abanda, Appellant,

against Record No. 1677-23-2 Circuit Court Nos. CR21-F-0447, CR21-F-0599, CR21-F-0600 and CR21-F-1539

Commonwealth of Virginia, Appellee.

From the Circuit Court of the City of Richmond

Before Judges O’Brien, Malveaux and Raphael

Mohammad Abanda appeals the trial court’s order denying his motion under Code § 19.2-303 to

modify his criminal sentence. Although the trial court denied Abanda’s motion on the merits, it lacked

jurisdiction to do so because the court did not act “within 60 days” of the date that Abanda was transferred to

the custody of the Department of Corrections, as required by Code § 19.2-303. It does not matter that Abanda

filed his motion before the expiration of that 60-day period. Under Code § 19.2-303, “the operative date . . .

is when the court makes its ruling, not when the motion is filed, and not when the matter initially comes

before the court.” Stokes v. Commonwealth, 61 Va. App. 388, 395 (2013). Accordingly, we vacate the trial

court’s order and remand this case with directions for the trial court to dismiss Abanda’s motion.

BACKGROUND

After a bench trial, Abanda was found guilty of conspiracy to commit abduction (CR21-F-0447), two

counts of felony abduction (CR21-F-0599 & -0600), and misdemeanor assault and battery by mob

(CR21-F-1539). On May 16, 2022, the trial court sentenced Abanda on the conspiracy conviction to 10

years’ incarceration with 10 years suspended; 20 years with 18 suspended for the first abduction conviction;

20 years with 15 suspended for the second abduction conviction; and 12 months, all suspended, for the

misdemeanor conviction. This resulted in an active sentence of 7 years’ incarceration. We recently affirmed Abanda’s convictions, rejecting his challenge to the sufficiency of the evidence. See Abanda v.

Commonwealth, No. 0770-22-2, 2023 Va. App. LEXIS 722 (Oct. 24, 2023) (Abanda I).

Abanda was transferred to the custody of the Department of Corrections on August 2, 2022, while his

appeal in Abanda I was pending. Fifty-nine days later—on September 30, 2022—Abanda filed a motion in

the trial court under Code § 19.2-303 to modify his sentence. Abanda argued that a sentence reduction was

warranted because (1) he had recently been diagnosed with post-traumatic stress disorder and (2) he had

expressed remorse for his actions. The trial court entered an order directing that Abanda be transferred from

the Greensville Correctional Center to the circuit court for a hearing on November 22, 2023.

At that hearing, the Commonwealth’s attorney questioned whether the trial court still had jurisdiction.

Abanda’s attorney agreed that Abanda had been transferred to the Department of Corrections on August 2,

but she asserted that the motion to modify his sentence was timely filed within the 60-day period required by

Code § 19.2-303. The Commonwealth’s attorney did not press the jurisdictional point, however, and the trial

court assumed that it had jurisdiction. The court found that the points Abanda raised in his motion did not

warrant modifying his sentence. The trial court denied the motion on December 8, 2022.

On September 25, 2023, we granted Abanda leave to file a delayed appeal from the December 8, 2022

order, and this appeal followed. The Commonwealth filed no brief on the merits. Instead, it moved to

dismiss the appeal as moot. The Commonwealth argued that, even if this Court remanded the case for further

proceedings, the trial court could not act because it would lack jurisdiction under Code § 19.2-303. When

pressed on the jurisdictional question at oral argument, the Commonwealth agreed that the trial court lacked

jurisdiction when it first ruled on Abanda’s motion because that ruling came after the 60-day period had

lapsed. Abanda disagrees. He claims that the court retained jurisdiction because he filed his motion on the

59th day after his transfer to the Department of Corrections. Both sides cited supplemental authorities for the

first time at oral argument. We permitted each side to respond in writing to the other side’s supplemental

authorities. The Commonwealth’s motion to dismiss is now ripe for decision.

-2- ANALYSIS

“[T]he lack of subject matter jurisdiction can be raised at any time in the proceedings, even for the

first time on appeal by the court sua sponte.” Dobson v. Commonwealth, 76 Va. App. 524, 530 n.6 (2023)

(quoting Holden v. Commonwealth, 26 Va. App. 403, 407 (1998)). “[W]hile a court always has jurisdiction

to determine whether it has subject matter jurisdiction, a judgment on the merits made without subject matter

jurisdiction is null and void.” Pure Presbyterian Church of Wash. v. Grace of God Presbyterian Church, 296

Va. 42, 50 (2018) (quoting Morrison v. Bestler, 239 Va. 166, 170 (1990)). As explained below, we find that

the trial court lacked jurisdiction to consider Abanda’s motion to modify his criminal sentence.

“In a criminal case, the final order is the sentencing order.” Dobson, 76 Va. App. at 528 (quoting

Johnson v. Commonwealth, 72 Va. App. 587, 596 (2020)). “A final order generally remains under the trial

court’s control for 21 days.” Id. (citing Rule 1:1(a)); Rule 1:1(a) (“All final judgments, orders, and decrees

. . . remain under the control of the trial court and may be modified, vacated, or suspended for [21] days after

the date of entry, and no longer.”).

This rule is “mandatory in order to assure the certainty and stability that the finality of judgments

brings. Once a final judgment has been entered and the [21-day] time period of Rule 1:1 has expired, the trial

court is thereafter without jurisdiction in the case.” Super Fresh Food Mkts. of Va., Inc. v. Ruffin, 263 Va.

555, 563 (2002). “Neither the filing of post-trial or post-judgment motions, nor the trial court’s taking such

motions under consideration, nor the pendency of such motions on the twenty-first day after final judgment,

is sufficient to toll or extend the running of the [21-day] time period of Rule 1:1.” Id. at 560.

But the General Assembly has enacted several statutes that extend the trial court’s jurisdiction in

criminal cases beyond the 21-day period specified in Rule 1:1. See Vanmeter v. Commonwealth, 80 Va. App.

324, 331 (2024) (discussing Code §§ 19.2-303, 19.2-303.01, 19.2-306(A), and 19.2-354(C)(ii)). As relevant

here, the first sentence of the last paragraph of Code § 19.2-303 provides:

If a person has been sentenced for a felony to the Department of Corrections (the Department), the court that heard the case, if it appears compatible with the public interest and there are circumstances in -3- mitigation of the offense, may, at any time before the person is transferred to the Department, or within 60 days of such transfer, suspend or otherwise modify the unserved portion of such a sentence.

We have twice stated that Code § 19.2-303 “controls over Rule 1:1 in determining whether the trial court had

jurisdiction to consider [the defendant’s] motion.” Vanmeter, 80 Va. App. at 331 (alteration in original)

(quoting Dobson, 76 Va. App. at 530 n.6).

Code § 19.2-303 was amended in 2021 to extend the trial court’s jurisdiction to modify a criminal

sentence until 60 days after the defendant is transferred to the Department of Corrections:

If a person has been sentenced for a felony to the Department of Corrections (the Department) but has not actually been transferred to a receiving unit of the Department, the court which that 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, or within 60 days of such transfer, suspend or otherwise modify the unserved portion of such a sentence.

2021 Va. Acts Spec. Sess. I ch. 176. The effect of that amendment is central to the jurisdictional question

here.

Before the 2021 amendment, we held in Stokes that a trial court loses jurisdiction to modify a criminal

sentence if the court does not act before the defendant is transferred to the Department of Corrections.

61 Va. App. at 395. The “plain language” of the statute compelled that result. Id. Because the language was

clear, it did not matter that “the purposes of Code § 19.2-303 are rehabilitative in nature.” Id. at 393. Nor

that “the statute should be liberally construed.” Id. Indeed, it did not matter that Stokes had been transferred

to the Department of Corrections in violation of the trial court’s order that he remain in local custody. Id.

at 391. We said that “[t]he statute contains no exceptions. . . . Any potential unfairness or inequity arising

from this statute . . . must be resolved by the legislature, not the judiciary.” Id. at 398. In short, “[w]hen read

in conjunction with Rule 1:1, Code § 19.2-303 establishes an absolute event, i.e., a transfer to the Department

of Corrections, when a trial court can no longer modify a sentence.” Id. at 394. “[T]he operative date . . . is

when the court makes its ruling, not when the motion is filed, and not when the matter initially comes before

the court.” Id. at 395. -4- The Supreme Court agreed with that interpretation in Akers v. Commonwealth, 298 Va. 448 (2020).

The Court said that “[t]he Court of Appeals correctly interpreted the plain language of [Code § 19.2-303] and

held that once Akers had been transferred to the Department of Corrections, the trial court could no longer

modify his sentence.” Id. at 453.

Abanda argues that the 2021 amendment to Code § 19.2-303 implicitly superseded Stokes and Akers

when it added the 60-day extension period. He says that the relevant event now is when the sentence-

modification motion is filed, not when 60 days passes from the defendant’s transfer to the Department of

Corrections. Abanda maintains that, as long as the motion is filed within that 60-day period—and here, it was

filed on the 59th day—the motion is timely and the court retains jurisdiction to act at any time after that.

But we see nothing in the 2021 amendment to support Abanda’s reading. “When the General

Assembly acts in an area in which one of its appellate courts already has spoken, it is presumed to know the

law as the court has stated it and to acquiesce therein, and if the legislature intends to countermand such

appellate decision it must do so explicitly.” Dobson, 76 Va. App. at 531 (quoting Weathers v.

Commonwealth, 262 Va. 803, 805 (2001)). The only relevant change by the 2021 amendment was to extend

the trial court’s jurisdiction to modify a sentence until 60 days after the defendant has been transferred to the

Department of Corrections. As before, “the operative date . . . is when the court makes its ruling, not when

the motion is filed.” Stokes, 61 Va. App. at 395. We held in Dobson that the 2021 amendment did not

change the rule that the defendant bears the burden of establishing that the trial court retains jurisdiction to act

on a motion under Code § 19.2-303. 76 Va. App. at 531. Likewise, the 2021 amendment “has not explicitly

or even implicitly countermanded,” id., the rulings in Akers and Stokes that the trial court loses jurisdiction to

modify the sentence once the deadline passes by which the trial court must act.

We are not persuaded by Abanda’s reliance on dicta in several unpublished cases suggesting that a

trial court might retain jurisdiction to modify a sentence as long as the motion is “filed” before the 60-day

deadline. See Revell-Walgorski v. Commonwealth, No. 0939-22-1, slip op. at 4, 2023 Va. App. LEXIS 589,

at *5 (Sept. 25, 2023) (per curiam); Davis v. Commonwealth, No. 1085-22-2, slip op. at 5, 2023 Va. App. -5- LEXIS 91, at *6 (Feb. 14, 2023) (per curiam); Davis v. Commonwealth, No. 1296-22-2, slip op. at 5, 2023

Va. App. LEXIS 473, at *6 (July 18, 2023) (per curiam). Those cases are neither binding1 nor persuasive.

The Court in each case found that jurisdiction was lacking. None held that the trial court’s jurisdiction could

be extended beyond the 60-day limit in Code § 19.2-303 as long as the sentence-modification motion had

been filed beforehand. To prevent any future misunderstandings, however, we disavow any suggestion that

as long as the defendant files his motion under Code § 19.2-303 by the 60-day deadline, a trial court retains

continuing jurisdiction to adjudicate it. In short, if the trial court fails to act on the sentence-modification

motion by the 60th day from the defendant’s transfer to the Department of Corrections, the court loses

jurisdiction to act on the motion.

CONCLUSION

The trial court lacked jurisdiction to act on Abanda’s motion to modify his sentence. Accordingly, we

grant the Commonwealth’s motion to dismiss the appeal. The trial court’s judgment is vacated, and the case

is remanded with instructions to dismiss Abanda’s September 30, 2022 motion under Code § 19.2-303 for

lack of jurisdiction.

This order shall be published and certified to the trial court.

A Copy,

Teste:

A. John Vollino, Clerk

original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court

Deputy Clerk

Unpublished opinions may be cited “as informative, but will not be received as binding authority.” 1

Rule 5A:1(f). -6-