Boris James Alston v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Kelsey, Petty and Beales
Argued at Chesapeake, Virginia
BORIS JAMES ALSTON
MEMORANDUM OPINION* BY
v. 	Record No. 1733-10-1 	JUDGE RANDOLPH A. BEALES
JUNE 7, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
H. Vincent Conway, Jr., Judge
Charles E. Haden for appellant.
John W. Blanton, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Pursuant to a plea agreement, Boris James Alston (appellant) was convicted of rape and
sentenced to fifty years in the penitentiary, with thirty years of that sentence suspended upon various
conditions. After the final order in his case was entered, appellant filed a motion for reconsideration
with the Circuit Court for the City of Newport News. The circuit court denied his motion. On
appeal, appellant argues that the Newport News Circuit Court abused its discretion when it denied
this motion. We disagree with appellant’s argument, and, therefore, we affirm his conviction.
BACKGROUND
The Newport News Circuit Court entered a final order in appellant’s rape case on July 19,
2010. On August 5, 2010, appellant, acting pro se, filed with the Newport News Circuit Court a
“Motion for Reconsideration to Run Time Concurrent.” In his written motion, appellant informed
the Newport News Circuit Court that the Circuit Court for the City of Williamsburg and James City
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.

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County had convicted him of failing to register as a sex offender and had sentenced him in October
2009 to five years to serve. He then specifically requested the following relief:
I ask you with all honesty that you please consider adding the
remainder of the 3 years and 9 months of the Williamsburg
sentence to run concurrent with the 20 year sentence that I received
from my plea deal in Newport News VA.
The Newport News Circuit Court denied appellant’s motion. In its August 26, 2010
order,1 the Newport News Circuit Court explained, “It appears to this court that he is specifically
requesting that the sentence [in] Williamsburg run concurrently with his sentence in Newport
News. This court would have no jurisdiction concerning the Williamsburg matter.”
ANALYSIS2
In his assignment of error, appellant contends that “[t]he trial court abused its discretion
in denying [his] motion to run his Newport News sentence concurrently with the sentence
imposed by the Williamsburg/James City County Circuit Court.” However, the Newport News
Circuit Court did not rule on this question. Instead, the Newport News Circuit Court ruled that,
as a matter of law, it could not order that the Williamsburg sentence run concurrently with the
Newport News sentence because the Newport News Circuit Court had no jurisdiction over a
Williamsburg case. Because the Newport News Circuit Court did not address the issue that
1 This order was entered more than twenty-one days after the Newport News Circuit
Court entered the final sentencing order in this case. See Rule 1:1 (limiting a court’s jurisdiction
to twenty-one days after entry of a final order). Code § 19.2-303 creates an exception to Rule
1:1 in criminal cases when the defendant has not yet been transferred to the Department of
Corrections. See Code § 19.2-303; Russnak v. Commonwealth, 10 Va. App. 317, 324, 392
S.E.2d 491, 495 (1990). The Newport News Circuit Court ruled that it did not have jurisdiction
over the Williamsburg conviction – not that it lacked jurisdiction under Code § 19.2-303.
2 Because we affirm on other grounds, we need not address here whether the Newport
News Circuit Court had authority to amend a sentencing order that was entered pursuant to and
in compliance with a stipulated and accepted plea agreement, such as the order that was entered
here by the Circuit Court for the City of Newport News. See Rule 3A:8(c); Wright v.
Commonwealth, 275 Va. 77, 655 S.E.2d 7 (2008).

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appellant now raises on appeal, this Court has no ruling to review for “abuse of discretion,” as
appellant requests. As a result, this Court cannot consider his assignment of error. See Rule
5A:18; Williams v. Commonwealth, 57 Va. App. 341, 347, 702 S.E.2d 260, 263 (2010); see also
Duva v. Duva, 55 Va. App. 286, 299, 685 S.E.2d 842, 849 (2009) (“Because the record does not
show that the trial court ruled on appellant’s argument, there is no ruling of the trial court for this
Court to review on appeal.”).
In addition, in making the ruling that it did on appellant’s motion, the Newport News
Circuit Court correctly found that it had “no jurisdiction concerning the Williamsburg matter.”
See Code § 19.2-239. Here, the Williamsburg/James City County Circuit Court had already
exercised its authority over the charge that appellant had failed to register as a sex offender.
Appellant presents no authority to this Court that suggests the Newport News Circuit Court had
any jurisdiction to change the sentence imposed by the Williamsburg/James City County Circuit
Court. Thus, we find that the Newport News Circuit Court did not abuse its discretion in
denying appellant’s motion.
CONCLUSION
We find that the Circuit Court for the City of Newport News did not err in this case, and
we affirm appellant’s conviction.
Affirmed.