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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Alexandria, Virginia
Record No. 2467-02-4
MARVIN DIRCEU MINAS URBINA
COMMONWEALTH OF VIRGINIA
JUDGE JAMES W. BENTON, JR.
NOVEMBER 4, 2003
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
Glenn S. Wainer for appellant.
Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
The trial judge convicted Marvin Dirceu Minas Urbina of
malicious wounding upon his
guilty plea. Minas Urbina contends the trial judge erred because
(1) the judge lacked jurisdiction to
convict him after vacating an earlier conviction, (2) the
conviction order violated the Double
Jeopardy Clause of the Constitution, (3) the conviction order
was predicated upon the
Commonwealth’s breach of a plea agreement, and (4) the
conviction order was entered in violation
of his right to a "speedy trial." We affirm the
On August 1, 2000, Minas Urbina pled guilty to malicious
wounding in violation of Code
? 18.2-51. After making the appropriate inquiry, the trial
judge accepted the plea, heard
evidence supporting the charge, convicted Minas Urbina of
malicious wounding, and ordered a
pre-sentence report. At the sentencing hearing, Minas Urbina’s
attorney represented to the judge
that Minas Urbina would be deported if convicted of a felony,
and he made the following
Mr. Wainer: . . . I would also like to point out that . . .
Minas [Urbina] . . . is just a permanent resident. His whole
lives here and that under federal law . . . a person convicted
felony is a deportable person, it’s almost automatic.
I would ask this Court to consider everything that’s
happened here. I think there are some good considerations here
and before the Court does impose sentencing perhaps maybe it
could structure a program that could fit Mr. Minas [Urbina] which
possibly could entail some sort of community service, probation,
boot camp, and education . . . before [you] enter a sentence on
guilty plea, Judge.
[Judge]: You don’t want me to sentence him? You want
me to suspend an imposition so that he won’t have a felony
conviction; is that what you’re saying?
Mr. Wainer: That’s correct, Judge.
The trial judge asked the attorney to address the deportation
issue in a written
submission. The judge continued the sentencing hearing without
objection and released Minas
Urbina on bail. In a memorandum, the attorney referenced various
portions of the federal code,
noted that a conviction on a felony charge would result in
deportation, and described Minas
Urbina’s family circumstance. Based upon these considerations,
he requested the judge to
"suspend the imposition of sentence . . . or in the
alternative . . . vacate [the] prior finding of
guilty." At the sentencing hearing, the trial judge orally
indicated he would vacate the previous
finding of guilt, "suspend imposition of sentence" for
a period of three years, order three years of
supervised probation with special conditions, and continue the
case until October 16, 2003.
Without objection by Minas Urbina, the trial judge entered an
order on January 31, 2001
vacating the "previous finding of guilty," imposing
the conditions of good behavior and other
requirements, and also finding, however, "that the facts in
this case justify a finding of guilty."
Fourteen months after entry of this order, the police arrested
Minas Urbina and charged
him with several criminal law violations. The police also
detained him on a warrant for violating
the conditions of the January 31, 2001 order. Following an
evidentiary hearing to determine
whether Minas Urbina had violated the conditions of the January
31, 2001 order, the trial judge
found that he did. By an order entered August 27, 2002, the
trial judge convicted Minas Urbina
of malicious wounding based upon the evidence at the August 1,
2000 hearing, sentenced him to
five years in prison, suspended four years and six months of
that sentence, and imposed a term of
Minas Urbina contends the January 31, 2001 order was a final
order. He argues,
therefore, that the August 2002 conviction order is void as a
violation of Rule 1:1.
In pertinent part, Rule 1:1 provides that "[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." The
principle is well settled that "’[a] final order is one
which disposes of the whole subject, gives all
the relief contemplated, provides with reasonable completeness
for giving effect to the sentence,
and leaves nothing to be done in the cause save to superintend
ministerially the execution of the
order.’" Daniels v. Truck & Equip. Corp., 205 Va. 579,
585, 139 S.E.2d 31, 35 (1964) (citations
omitted). These principles apply in a criminal case. Davidson v.
Commonwealth, 246 Va. 168,
171, 432 S.E.2d 178, 180 (1993) (holding that an order is
"a final order . . . [when it is] a
disposition of the whole subject before the court"). In
short, the final order in a criminal
proceeding is generally the order sentencing a defendant in some
manner after a finding of guilt.
In re Dept. of Corrections, 222 Va. 454, 463, 281 S.E.2d 857,
862 (1981). See also Fuller v.
Commonwealth, 189 Va. 327, 332, 53 S.E.2d 26, 28 (1949) (holding
that a trial judge "has made
a complete disposition of the case within the purview of the
statute" when he has adjudged the
defendant "guilty" and sentenced him); Patterson v.
Commonwealth, 39 Va. App. 610, 614, 575
S.E.2d 583, 585 (2003) (noting that the sentencing order
following a conviction was the final
order); D’Alessandro v. Commonwealth, 15 Va. App. 163, 167, 423
S.E.2d 199, 201 (1992)
(holding that "the sentencing order [that follows a finding
of guilt] . . . is the final judgment").
Prior to sentencing Minas Urbina upon his August 1, 2000 guilty
plea, the trial judge
entered the January 31, 2001 order, which vacated the
conviction, continued the proceeding to a
specific date, and retained jurisdiction over this matter. The
January 31, 2001 order did not
adjudicate Minas Urbina "guilty" of a criminal offense
and did not sentence him for a criminal
violation. Thus, it was not a "final disposition" of
the matter. Indeed, when Minas Urbina was
brought before the circuit court in August 2002, the original
criminal proceeding on the
malicious wounding charge remained pending pursuant to the
express terms of the January 31,
2001 order. Because no final order had previously been entered,
Rule 1:1 did not cause the trial
judge to lose jurisdiction over the proceeding.
Minas Urbina also challenges the manner in which the trial judge
structured the January
31, 2001 order. He asserts that "[a]lthough the Judge
stated from the bench that he was going to
‘suspend the imposition of sentence’ . . . , he failed to do
so." Minas Urbina argues that,
therefore, "[b]ecause the court . . . did not see fit to
sentence [him] to a term of incarceration or,
did not see fit to suspend imposition of sentence, the court was
without jurisdiction [in August
2002] to modify, suspend or vacate the order of January 31,
2001." This argument lacks merit.
As we indicated in Part I of this opinion, the trial judge
structured his order in response to
Minas Urbina’s attorney’s plea to give Minas Urbina a chance to
rehabilitate himself and to avoid
deportation. To emphasize the specific focus of the attorney’s
request, we repeat the following
[Judge]: You don’t want me to sentence him? You want me to
suspend an imposition so that he won’t have a felony conviction;
that what you’re saying?
Mr. Wainer: That’s correct judge.
The trial judge could not suspend imposition of sentence unless
he had first convicted
Minas Urbina, a result his attorney asked the judge to avoid.
See Code ? 19.2-303 ("After
conviction, . . . the court may suspend imposition of
sentence[.]"). Moreover, the principle is
well established that "[n]o litigant, even a defendant in a
criminal case, will be permitted to
approbate and reprobate — to invite error . . . and then to
take advantage of the situation created
by his own wrong." Fisher v. Commonwealth, 236 Va. 403,
417, 374 S.E.2d 46, 54 (1988). We
have applied this principle when holding that "[a] party
may not invite error and subsequently
raise that error as a grounds for appeal." Batts v.
Commonwealth, 30 Va. App. 1, 11, 515 S.E.2d
307, 312 (1999). Accordingly, we hold that Minas Urbina cannot
now challenge as reversible
error the judge’s decision to proceed in a manner that did not
involve suspension of the
imposition of a sentence. Having asked the trial judge to avoid
convicting him of a felony,
Minas Urbina will "not be allowed to assume an inconsistent
position" by arguing that the judge
erred in responding favorably to his request. Clark v.
Commonwealth, 220 Va. 201, 214, 247
S.E.2d 784, 792 (1979).
Minas Urbina also contends that the August 2002 conviction order
violated the Double
Jeopardy Clause of the Fifth Amendment. Because he never
presented this argument to the trial
judge, Rule 5A:18 bars our consideration of this question on
appeal. "The Court of Appeals will
not consider an argument on appeal which was not presented to
the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).
Moreover, the record does
not reflect any reason to invoke the good cause or ends of
justice exceptions to Rule 5A:18.
Minas Urbina contends the Commonwealth violated a plea agreement
when it sought to
prove he violated the conditions of the January 31, 2001 order.
This contention lacks merit.
At the August 2002 hearing, a probation officer testified about
Minas Urbina’s violations
of the conditions of the January 31, 2001 order. In addition, a
police officer testified that he
found a handgun in a car between the seats occupied by Minas
Urbina and his brother and that
Minas Urbina admitted he owned the firearm and had traveled to
Washington, D.C. to purchase
it. Both men were charged with firearm offenses. At the hearing,
Minas Urbina argued that the
prosecutor entered into a plea agreement with his brother and
"agreed not to pursue charges or
otherwise prosecute" Minas Urbina in exchange for his
brother’s guilty plea. The prosecutor
represented, however, that Minas Urbina’s brother’s plea
agreement provided that the
Commonwealth would not institute a criminal prosecution against
Minas Urbina for that event.
The prosecutor also represented that the agreement did not bar
the Commonwealth from
introducing evidence of Minas Urbina’s proximity to the firearm
to show Minas Urbina did not
abide by the conditions of the January 31, 2001 order. The trial
judge accepted that
representation. The plea agreement was not entered into
Minas Urbina’s brother testified that he found the handgun near
a soccer field and Minas
Urbina knew nothing about the handgun. At the conclusion of the
evidence, the trial judge found
that the brother’s testimony was not credible. The trial judge
also believed the officer’s testimony
and found that Minas Urbina possessed the firearm and traveled
outside of Virginia without
permission, both of which violated the terms of the January 31,
2001 order. Because the
evidence did not prove the Commonwealth was barred from
producing evidence of Minas
Urbina’s possession of the firearm to show a violation of the
conditions of the January 31 order,
we hold that the trial judge did not err in accepting the
Minas Urbina also contends that res judicata and collateral
estoppel precluded the
Commonwealth from introducing evidence of the firearm at Minas
Urbina’s revocation hearing.
The doctrine of collateral estoppel provides that "when an
issue of ultimate fact has once
been determined by a valid and final judgment [against the party
to whom the doctrine is sought
to be applied], that issue cannot again be litigated between the
same parties in any future
lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). See
also Sevachko v. Commonwealth, 35
Va. App. 346, 352, 544 S.E.2d 898, 901 (2001) (holding that
"[c]ollateral estoppel is a doctrine
of fact preclusion"). The broader doctrine of res judicata
"’ precludes [the] relitigation of a claim
or issue once a final determination on the merits has been
reached by a court of competent
jurisdiction.’" Neff v. Commonwealth, 39 Va. App. 13, 18,
569 S.E.2d 72, 74 (2002) (citation
The record does not contain any indication that the plea
agreement established a factual
finding that Minas Urbina’s brother had sole and exclusive
possession of the firearm.
"Possession need not be exclusive and, in fact, may be
joint possession with others." Hamilton
v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Thus, an item "found on
the seat of [a vehicle] between the defendant and [another, may
be said to be] . . . found in what
clearly appeared to be an exclusive joint possession of both
occupants." Quivers v.
Commonwealth, 135 Va. 671, 676, 115 S.E. 564, 565 (1923). See
also Carter v.
Commonwealth, 209 Va. 317, 323, 163 S.E.2d 589, 594 (1968)
(holding that "exclusive
possession includes joint possession by two or more
persons"). Moreover, because there has
been no finding that Minas Urbina did not jointly possess the
gun with his brother, res judicata
did not bar the trial judge’s finding in this proceeding.
Accordingly, we hold that the trial judge
did not err.
Requesting that we apply the ends of justice exception to Rule
5A:18, Minas Urbina
contends the Commonwealth failed to commence the trial within
nine months in violation of
Code ? 19.2-243 and Article I, Section 8 of the Virginia
"[T]he ends of justice exception is narrow and is to be
used sparingly." Brown v.
Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989).
"In order to avail oneself of the
[ends of justice] exception, a defendant must affirmatively show
that a miscarriage of justice has
occurred, not that a miscarriage might have occurred."
Redman v. Commonwealth, 25 Va. App.
215, 221, 487 S.E.2d 269, 272 (1997).
"The protection granted an accused under [Virginia's speedy
trial statute] is not selfoperative.
‘It may be claimed, or it may be waived.’ Failure to invoke the
provisions of the
statute until after final judgment is a waiver of the protection
afforded thereunder." Brooks v.
Peyton, 210 Va. 318, 321, 171 S.E.2d 243, 246 (1969) (citations
omitted). Minas Urbina failed
to invoke his statutory right to a speedy trial in the trial
court. In addition, he specifically
requested the trial judge to provide the relief he now seeks to
overturn. When the trial judge
vacated the August 2000 conviction and continued the proceeding
until October 16, 2003, Minas
Urbina did not object and agreed to the procedure and,
necessarily, the delay. Thus, he has failed
to affirmatively show that a miscarriage of justice occurred and
has provided an insufficient basis
to invoke the ends of justice exception to Rule 5A:18.
For these reasons, we affirm the conviction.
Code ? 17.1-413, this opinion is not designated for publication.