Kevin M. Lydon v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA Record No. 1730-24-4 KEVIN M. LYDON v. COMMONWEALTH OF VIRGINIA Present: Judges O’Brien, Causey and Bernhard Argued at Fairfax, Virginia Opinion Issued November 4, 2026* FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY Petula C. Metzler, Judge (Kevin M. Lydon, on briefs), pro se. Appellant submitting on briefs. Katherine Quinlan Adelfio, Senior Assistant Attorney General (Jason S. Miyares,1 Attorney General, on brief), for appellee. MEMORANDUM OPINION BY JUDGE DORIS HENDERSON CAUSEY In 2018, a jury convicted Kevin M. Lydon of one count of rape, one count of abduction with the intent to defile, four counts of aggravated sexual battery, two counts of object sexual penetration, two counts of indecent exposure, and two counts of obscene display. In 2021, the circuit court entered a nunc pro tunc order purporting to correct clerical errors in its sentencing order under Code § 8.01-428(B). Specifically, the nunc pro tunc order added to the sentencing order by providing that in addition to the 20-year term of active incarceration, Lydon also had to pay a $20,000 fine and submit to supervised probation “for life” after his release. * This opinion is not designated for publication. See Code § 17.1-413(A). 1 Jay C. Jones succeeded Jason S. Miyares as Attorney General on January 17, 2026.  In 2024, Lydon, pro se, moved the circuit court to vacate its nunc pro tunc order as void ab initio under Rule 1:1. The circuit court denied the motion, finding that it only had the jurisdiction and authority to correct the omissions in the sentencing order under Code § 8.01-428(B). Lydon now appeals to this Court, arguing that the circuit court exceeded its authority under Code § 8.01-428(B) and that the nunc pro tunc order is void ab initio. The Commonwealth, first, agrees with Lydon that the circuit court erred by purporting to add a $20,000 fine under the auspices of correcting a clerical error. Second, however, the Commonwealth argues that the circuit court’s imposition of lifetime probation was a permissible exercise of the nunc pro tunc power to correct clerical errors. Third, the Commonwealth asks this Court to remand the case to correct what it argues is an additional clerical error: the sentencing order’s failure to impose any period of post-release suspended incarceration alongside “life” probation. For the reasons discussed below, we agree with both parties that the circuit court erred in amending the sentencing order to impose a $20,000 fine, as the record contained insufficient support to permit that action under the auspices of correcting a clerical error. Therefore, we hold that the circuit court erred in imposing a $20,000 fine. We also agree with the Commonwealth that the inclusion of a period of lifetime probation was a permissible exercise of the nunc pro tunc power to correct clerical errors. However, we reject the Commonwealth’s argument that the court’s failure to impose a period of post-release suspended incarceration was merely a clerical error that may be corrected nunc pro tunc.2 Instead, we hold that the circuit court erred. 2 The Commonwealth additionally asks this Court to reconsider our denial of its motion to transfer the case to the Supreme Court under Code § 8.01-677.1. The motion to reconsider is denied. -2-  BACKGROUND After a six-day trial, a jury convicted Lydon of the above offenses and sentenced him to a total of 58 years and 48 months’ incarceration and a total of $20,000 in fines. Specifically, for the abduction and rape convictions, the jury imposed 20 years’ incarceration each. For each of the two counts of object sexual penetration, the jury imposed five years’ incarceration. For each of the indecent exposure and obscene display convictions, the jury imposed six months. And for each of the four aggravated sexual battery convictions, the jury sentenced him to two years and six months’ incarceration and a $5,000 fine. At the August 2018 sentencing hearing, the parties’ arguments centered on whether the jury’s recommended sentences should run consecutively (adding up to over 60 active years) or concurrently (for a total of 20 active years). Lydon’s counsel argued for a sentence that would not amount to “a death sentence in prison.” He acknowledged that “life-long” probation and registration with the sex-offender registry were statutorily mandated regardless of the length of any active sentence. Lydon explicitly did not argue “against those” requirements. Following argument, the circuit court pronounced Lydon’s sentences. The court stated that it was “going to run this time concurrent,” which resulted in a total of 20 years’ active incarceration. The court noted that 20 years was “a long time” and the Commonwealth no longer had “a parole system.” The court then stated, “I will run these sentences as given by the jury concurrent.” After a pause, during which the trial judge conferred with the court clerk, the court stated, “[t]here is by law, thereafter, probation, lifetime probation. There is a question often as to whether or not I should suspend a portion. I don’t think I need to in this charge [sic] because by law, probation upon release is for life, Mr. Lydon, as well as under the requirements for sexual offenders.” Lydon’s counsel replied, “[w]e understand that, Your Honor.” The Commonwealth later asked that the court impose a “no contact order between [Lydon] and the victim” as “part of probation.” The court granted that -3- request without objection. There was no discussion during sentencing of the fines recommended by the jury. The circuit court’s original sentencing order incorrectly stated that the jury had sentenced Lydon to 60 years’ incarceration, not 58 years and 48 months. The order also incorrectly stated the period of incarceration for one of Lydon’s aggravated sexual battery convictions. Further, the order did not reference the fine the jury imposed for Lydon’s aggravated sexual battery convictions. The order accurately provided that the sentences for the various offenses would be served concurrently, resulting in 20 years’ active incarceration, and it did not suspend any portion of those sentences. The order was silent on whether there would be any period of post-release probation or supervision. Lydon appealed his convictions. After denying Lydon’s petition for appeal in part in 2019, this Court affirming Lydon’s convictions by memorandum opinion issued in 2020. Lydon v. Commonwealth, No. 1436-18-4 (Va. Ct. App. July 21, 2020). This Court remanded the matter for correction of certain clerical errors in the order. Id., slip op. at 8 n.6. The identified clerical errors were the order’s misstatement of Lydon’s total number of years of incarceration and of the years of incarceration imposed for one of Lydon’s aggravated sexual battery convictions. Id. In April 2021, the circuit court entered a nunc pro tunc order correcting clerical errors in the sentencing order under Code § 8.01-428(B).3 The circuit court corrected the clerical errors identified by this Court and made additional amendments that it characterized as corrections to clerical errors. First, the nunc pro tunc order stated that the jury had imposed a $5,000 fine for each of the aggravated sexual battery convictions, for a total fine of $20,000, but that fine had been omitted from the original sentencing order. Second, the nunc pro tunc order noted that 3 In November 2018, the circuit court entered a previous nunc pro tunc order correcting clerical errors in the applicable case numbers. Even though Lydon’s assignment of error mentions more than one nunc pro tunc order, his argument addresses only the April 2021 nunc pro tunc order. Accordingly, the November 2018 order is not at issue in this appeal. -4- upon release, Lydon would be “under the supervision of a Probation Officer for life,” and this term was also omitted from the original sentencing order. Accordingly, the nunc pro tunc order added those fines and conditions to Lydon’s sentence. Relevant to this appeal, the sentencing order did not add any period of suspended incarceration to Lydon’s sentence. In May 2024, Lydon, pro se, moved the circuit court to vacate its nunc pro tunc order as void ab initio under Rule 1:1.4 Lydon argued that the addition of lifetime probation and a $20,000 fine were beyond the mandate in the 2020 opinion by this Court and thus improper uses of the nunc pro tunc power. Lydon acknowledged that the circuit court erred by failing to impose the lifetime probation period but argued that this error constituted an error in the judge’s reasoning, not a clerical error. Second, Lydon argued that the nunc pro tunc order’s amendment regarding fines was simply incorrect. This was because the $5,000 fines “were ordered to be served concurrently.” Lydon contended that the nunc pro tunc order was not correcting clerical errors but rather was amending and enhancing his sentence in violation of Rule 1:1.5 The circuit court denied Lydon’s motion without a hearing, finding that it had “discretion” under Code § 8.01-428(B) to enter the nunc pro tunc order because the sentencing order “failed to include the fines the jury imposed as well as probation for life upon release.” On appeal, Lydon argues that the circuit court erred by denying his motion to vacate the nunc pro tunc order as void under Rule 1:1. He maintains that the nunc pro tunc order did not demonstrate 4 Lydon states in his brief that he never saw a copy of the 2021 nunc pro tunc order until 2024. The Commonwealth states that it is not clear whether the circuit court sent the nunc pro tunc order to counsel. The Commonwealth does not argue that the timing of Lydon’s receipt of the nunc pro tunc order has any effect on his ability to challenge it. 5 Lydon also argued that the court improperly amended the order without providing him the “required notice.” “The judgment of the trial court is presumed correct and appellant bears the burden on appeal to prove trial court error.” Awkard v. Commonwealth, 19 Va. App. 605, 613 (1995) (Baker, J., dissenting). Here, assuming without deciding that a failure to provide required notice would require vacating the nunc pro tunc order, the record is insufficiently clear to permit a finding by this Court that Lydon lacked notice. -5- “what actually occurred” but rather “enhance[d]” the original sentencing order. He contends that the court ran all his aggravated sexual battery sentences, including the respective fines, “concurrently” and it could not later impose the $20,000 fine. Further, he argues that the original sentencing order made “no mention” of a probation period, and such a period is “meaningless” because it was not accompanied by any “coinciding suspended sentence.” Thus, he maintains that the nunc pro tunc order is void ab initio and should be vacated. The Commonwealth agrees that the circuit court erred by imposing a $20,000 fine nunc pro tunc. It asserts that the court did not mention the fines at the sentencing hearing but nevertheless ruled that Lydon’s sentences, including the fines, were to run concurrently. The Commonwealth acknowledges that “[t]here is no support in the record that the circuit court intended to impose an aggregate $20,000 fine; the record only supports the conclusion that the circuit court intended to impose a $5,000 fine.” The Commonwealth asserts the circuit court properly corrected a scrivener’s error by noting that Lydon was subject to probation for life following his release. It emphasizes the circuit court’s statements, made immediately following its imposition of a term of incarceration, that Lydon would be subject to lifelong probation. It also emphasizes that Lydon explicitly did not contest that point. Finally, the Commonwealth acknowledges that the nunc pro tunc order did not impose a period of suspended incarceration alongside the term of probation but categorizes that issue as another “clerical error.” The Commonwealth notes that Code § 18.2-48 required the court to impose “a suspended sentence of no less than 40 years” in this case, so it asks this Court to remand the matter for the circuit court “to correct the scrivener’s error such that the sentencing order reflects Lydon’s suspended sentence of forty years.” -6-  ANALYSIS “All final judgments, orders, and decrees, irrespective of terms of court, remain under the control of the trial court and may be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer.” Rule 1:1(a). “The running of the twenty-one-day period commences with the entry of the final order and ‘may be interrupted only by the entry, within the 21-day period after final judgment, of an order [modifying,] suspending or vacating the final order.’” Minor v. Commonwealth, 66 Va. App. 728, 739 (2016) (quoting James v. James, 263 Va. 474, 482 (2002)). Accordingly, “[u]nless a court [modifies,] vacates or suspends a final order during the twenty-one-day period or some other exception to the general rule applies, the court loses jurisdiction over the case and any action taken by the trial court after the twenty-one-day period has run is a nullity.” Id. at 739-40 (citing James, 263 Va. at 483). Code § 8.01-428(B) provides a limited exception to the finality imposed by Rule 1:1 by allowing “for the correction of ‘[c]lerical mistakes in all judgments . . . arising from oversight or from inadvertent omission.’” Jefferson v. Commonwealth, 298 Va. 473, 476-77 (2020) (alterations in original) (quoting Code § 8.01-428(B)). Such errors “may be corrected by the court at any time on its own initiative or upon the motion of any party and after such notice, as the court may order.” Code § 8.01-428(B). Thus, a trial court has the authority to enter an amended order or a nunc pro tunc order to correct a clerical mistake. Jefferson, 298 Va. at 476-77; Harris v. Commonwealth, 222 Va. 205, 210 (1981). The power to correct such mistakes under Code § 8.01-428(B), however, “should not be confounded with the power to create.” Jefferson, 298 Va. at 477 (quoting Council v. Commonwealth, 198 Va. 288, 292 (1956)). A trial court may not “show what the court should have done as distinguished from what actually occurred” under the auspices of correcting a clerical mistake. Id. (emphasis added). Instead, “this power of correction ‘extends no further -7- than the power to make the record entry speak the truth.’” Id. (quoting Council, 198 Va. at 292). In other words, the power of a court correcting a clerical error “is restricted to placing upon the record evidence of judicial action that actually has been taken.” Jefferson v. Commonwealth, 269 Va. 136, 140 (2005) (emphasis added); see also Council, 198 Va. at 292 (same); Harris, 222 Va. at 209 (same). In reviewing a court’s correction of a purported clerical error, we are mindful that a court acts “in the exercise of its discretion” in exercising its nunc pro tunc authority. Jefferson, 269 Va. at 140; see also Ziats v. Commonwealth, 42 Va. App. 133, 140 (2003) (applying abuse of discretion standard). However, it is also true that before a circuit court may classify an error as merely “clerical,” an exacting level of proof is required. “[I]t has been held that such entry should be made with great caution and on the most conclusive evidence[.]” Council, 198 Va. at 293 (quoting 21 C.J.S., Courts, § 227(d), pp. 426, 427). “[T]he evidence constituting the basis for the correction of the record [must] be clear and convincing and . . . the entry [must] be made only where the errors to be corrected are proved beyond all doubt.” Id. (emphasis added); see also Antisdel v. Ashby, 279 Va. 42, 51 (2010) (same); see also Watts v. Commonwealth, 82 Va. App. 428, 451 (2024) (“[A] circuit court only has the power to correct the record under Code § 8.01-428(B) ‘when the record clearly supports such corrections.’” (emphasis added) (quoting Sch. Bd. of Lynchburg v. Caudill Rowlett Scott, 237 Va. 550, 555 (1989))). Thus, this Court will afford deference to the circuit court in reviewing its exercise of its discretionary nunc pro tunc authority. See Jefferson, 269 Va. 140; Ziats, 42 Va. App. at 140. But we review nunc pro tunc orders while mindful that, as an exception to the typical 21-day rule of finality, this discretionary authority may only be wielded when supported by clear and convincing evidence. Council, 198 Va. at 293; Antisdel, 279 Va. at 51; Sch. Bd. of Lynchburg, 237 Va. at 555. -8-  I. Fines Lydon argues that the circuit court erred by amending his sentencing order, nunc pro tunc, to impose $20,000 in fines. He argues that contrary to the amendment in the nunc pro tunc order, the record indicates that the original circuit court only intended to impose the four $5,000 fines “concurrently,” along with the rest of Lydon’s sentence. The Commonwealth concedes that the circuit court erred in making the nunc pro tunc amendment. It acknowledges, “There is no support in the record that the circuit court intended to impose an aggregate $20,000 fine; the record only supports the conclusion that the circuit court intended to impose a $5,000 fine.”6 Moreover, the original sentencing order contained no mention of any fines. As a primary matter, we hold that the record did contain sufficient support to permit a nunc pro tunc correction showing that Lydon was fined at least $5,000. The transcript shows that in pronouncing Lydon’s sentence, the court did in fact impose the fines recommended by the jury, as the circuit court stated, “I will run these sentences as given by the jury concurrent.” (Emphasis added). “Sentence” is a term that includes a fine. See Lamb v. Commonwealth, 40 Va. App. 52, 57 (2003) (defining “sentence” as “the judgment that a court formally pronounces after finding a criminal defendant guilty; the punishment imposed on a criminal wrongdoer” (quoting Black’s Law Dictionary 1368 (7th ed. 1999))). The jury verdict forms indicate that the sentence imposed by the jury for each of the four counts of aggravated sexual battery included a period of incarceration, as well as a $5,000 fine. The jury’s imposition of these fines is also memorialized in the court’s conviction order. Collectively, these segments of the record provide sufficient support to permit the circuit court, in its discretion, to find the record proved by “clear and 6 While the Commonwealth’s concession of law is not binding on this Court, it is notably consistent with the Commonwealth’s duty of candor to the tribunal. See Merritt v. Commonwealth, 69 Va. App. 452, 458 n.5 (2018). -9- convincing” evidence and “beyond all doubt,” Council, 198 Va. at 293 (quoting 21 C.J.S., Courts, § 227(d), pp. 426, 427), that the court “actually” performed the “judicial action” of imposing the jury’s recommended $5,000 fines for Lydon’s aggravated sexual battery convictions. Jefferson, 269 Va. at 140. We agree with both parties that the record contained insufficient evidence to support a nunc pro tunc amendment stating that Lydon was obligated to pay $20,000 in fines, as opposed to $5,000. As the Commonwealth states, there is no explicit evidence in the record that the court intended the four $5,000 fines to be imposed consecutively; instead, the only evidence presented at the sentencing hearing indicate that all portions of the sentence were to be imposed “concurrently.” It should be acknowledged that the precise intent of the circuit court regarding fines is unclear in this case. Fines were not only omitted from the sentencing order but were also not discussed at all by the judge, or any party, during sentencing. Thus, it is possible that—without making this intention explicit—the trial judge subjectively intended for all four of the $5,000 fines to be imposed. Perhaps the circuit court could have subjectively regarded the term “concurrently” to refer only to the period of incarceration imposed, not the fines—despite using it to refer to both topics. This subjective intent or mere possibility, however, is a far cry from the level of evidence that is required to support a nunc pro tunc correction. That possibility cannot be said to “clearly” show that the judicial act of imposing $20,000, as opposed to $5,000 in fines, was in fact performed. Sch. Bd. of Lynchburg, 237 Va. at 555. This is particularly clear because in pronouncing the sentence, the circuit court explicitly used the term “concurrently” to refer not only to the period of incarceration imposed, but to the jury’s entire recommended “sentences”—a term that includes fines. See Lamb, 40 Va. App. at 57. Considering this statement, the absence - 10 - of any evidence that the court intended to treat different portions of the sentence differently in sentencing, and the entire record, the circuit court could not have found “clear and convincing” evidence that the court intended for Lydon to pay all $20,000 of those fines. See Council, 198 Va. at 293 (quoting 21 C.J.S., Courts, § 227(d), pp. 426, 427). Much less could the record be said to prove an imposition of $20,000 in fines “beyond all doubt.” Id. See also Antisdel, 279 Va. at 51. The original sentencing order reflected no imposition of fines. For the reasons stated, in assessing what amendments were permitted pursuant to the nunc pro tunc power, we are satisfied that the record clearly supports the amendment recognizing that the court imposed the jury’s recommended fines—and thus may be amended to reflect a $5,000 fine. We also hold, however, that there was insufficient evidence to clearly show that the court intended Lydon to pay all $20,000 in fines. Thus, even while providing due deference to the court’s discretionary act, we hold that the circuit court erred insofar as it amended the order, under Code § 8.01-428(B), to state that Lydon was obligated to pay $20,000 in fines. II. Probation Lydon also argues that the court exceeded its authority under Code § 8.01-428(B) by imposing lifelong probation following his release because the original sentencing order was silent on that issue. He notes that there was no coincidental period of suspended incarceration, which makes probation “meaningless.” He acknowledges that the circuit court’s comments about probation in his reply brief but argues that the comments demonstrate that the circuit court was “confus[ed]” about the issue, not that it actually imposed probation, which he contends was “highly contested” below. The record, however, demonstrates that the issue of probation was not highly contested— it was agreed. Lydon’s counsel explicitly did not argue “against” lifelong probation and - 11 - registration with the sex-offender registry regardless of the length of any active sentence. Further, the circuit court was not confused about whether probation was required. Rather, the circuit court affirmatively stated, immediately after imposing Lydon’s term of incarceration, that “lifetime probation” was required “by law.” And for that reason, the court concluded that it did not need to suspend any of the jury’s sentences, which it had ordered to run concurrently. Thus, by amending the sentencing order nunc pro tunc to order lifelong probation, the court properly made the record “speak the truth” of what it had actually ruled. Jefferson, 269 Va. at 140 (quoting Council, 198 Va. at 293). Notwithstanding the above, the parties offer differing interpretations of the circuit court’s failure to impose a coinciding period of suspended incarceration alongside the term of probation. Indeed, Code § 18.2-48 provides that whenever a person is convicted of abduction with the intent to defile, as Lydon was, and is sentenced to “a term of confinement less than life imprisonment, the judge shall impose, in addition to any active sentence, a suspended sentence of no less than 40 years.” (Emphasis added). That “suspended sentence shall be suspended for the remainder of the defendant’s life subject to revocation by the court.” Id. Lydon argues the lack of a suspended term of incarceration demonstrates that the circuit court never imposed post-release probation, whereas the Commonwealth contends that it is another clerical error that needs to be corrected. We disagree with both parties’ arguments. Manifestly, for post-release supervision to be “effective,” it must be “concurrent with a coordinate term of suspension of sentence.” Hartless v. Commonwealth, 29 Va. App. 172, 175 (1999) (applying the concepts in the context of probation). Indeed, the ability to revoke a suspended sentence is what permits a court to enforce post-release probation. See id. Thus, post-release supervision, like probation, is “meaningless if no sentence remain[s] for the court to - 12 - impose if the defendant violate[s its] terms.” Leitao v. Commonwealth, 39 Va. App. 435, 438 (2002). Consistent with the above principles, we have held that a court’s failure to impose a period of post-release suspended incarceration alongside a term of post-release supervision is error. Eggleston v. Commonwealth, No. 1347-16-2, slip op. at 11 (Va. Ct. App. Sep. 12, 2017).7 Nevertheless, provided that sentence was within the prescribed statutory range, and the court erred only “in the way that it structure[s] the post-release component,” the error is not jurisdictional, and the order is merely “voidable, not void ab initio.” Id. In so holding, we rejected an argument that is very similar to the one the Commonwealth raises in this case. Namely, “that [a] sentencing court’s express imposition of a term of post-release supervision created a term of post-release confinement by operation of law.” Id. Although we acknowledged that position’s “commonsense appeal,” we rejected it by noting that “the court had the power to err, and nothing in the statutory language suggests that the express pronouncement of a period of supervision also automatically creates a period of suspended post-release incarceration.” Id., slip op. at 11-12. The Commonwealth’s position that we can remand for the court to correct a clerical error by adding 40 years of suspended incarceration is unsupported by the record. Under Code § 18.2-48, the circuit court should have imposed “a suspended sentence of no less than 40 years.” (Emphasis added). But nothing in the record demonstrates that the court actually imposed 40-years of suspended incarceration, or that making such a change would make the record “speak the truth.” Jefferson, 298 Va. at 477 (quoting Council, 198 Va. at 292). Plainly, the court could have imposed more than 40 years of suspended incarceration to accompany Lydon’s probation. Yet, our review of the record demonstrates that the court did not contemplate 7 Unpublished opinions may be cited as “informative.” Rule 5A:1(f). - 13 - imposing any term of suspended incarceration, 40 years or otherwise. The circuit court certainly did not “actually” perform the “judicial action” of imposing a 40-year term of suspended incarceration. Jefferson, 269 Va. at 140. Consequently, any attempt to do so now, after the order is long final under Rule 1:1, would constitute “an impermissible lengthening of [Lydon’s] sentence after the order had become final.” Eggleston, slip op. at 12. In sum, the record plainly demonstrates that the circuit court actually imposed “lifelong” probation upon Lydon’s release from incarceration. Accordingly, the court did not err by entering the nunc pro tunc order so that Lydon’s sentencing order reflected the judicial action that was actually performed. At the same time, the record also plainly demonstrates that the court erred by not imposing any coinciding term of suspended incarceration to accompany Lydon’s probation. Nevertheless, that error was voidable only, not void ab initio, and the sentencing order is long final, so the error is not now correctable under the auspices of fixing a “clerical error” under Code § 8.01-428(B). Thus, we hold that Lydon’s lifetime probation has no post-release suspended incarceration requirement. CONCLUSION For the foregoing reasons, we reverse the circuit court’s ruling in part. The circuit court did possess the authority to amend its order to reflect the imposition of a period of lifetime probation and to reflect its imposition of fines. But the circuit court lacked sufficient evidence to amend the order to impose $20,000 in fines. Additionally, we reject the Commonwealth’s request to remand for the purpose of considering the addition of a period of suspended incarceration. Therefore, we remand the case to the circuit court solely for the purpose of entering an amended nunc pro tunc order that reflects Lydon’s obligation to pay $5,000 in fines. Affirmed in part, reversed in part, and remanded. - 14 -