Rawls v. Com.

Present: All the Justices

JEROME K. RAWLS
OPINION BY
CHIEF JUSTICE LEROY R. HASSELL, SR.

v. Record Nos. 081672 and 082369 September 18, 2009

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Horace A. Revercomb, III, Judge

I.

In this appeal, we consider whether a criminal defendant

who was convicted of a felony and sentenced to a punishment in

excess of a statutorily prescribed maximum range of punishment

is entitled to a new sentencing hearing for that conviction.

II.

In 1996, a jury in the Circuit Court of Caroline County

convicted Jerome K. Rawls of the following crimes that he

committed in April 1992: second degree murder, use of a firearm

in the commission of murder, conspiracy to commit armed robbery,

and attempted armed robbery.

At the time Rawls committed his criminal offenses, Code

§ 18.2-32 prescribed that “[a]ll murder other than capital

murder and murder in the first degree is murder of the second

degree and is punishable as a Class 3 felony.” This felony

classification permitted a jury to fix a term of imprisonment of

not less than five years imprisonment nor more than 20 years
imprisonment and a fine of not more than $100,000. Effective

July 1, 1993, the General Assembly amended Code § 18.2-32 and

increased the range of punishment for second degree murder to

not less than five years imprisonment nor more than 40 years

imprisonment in a state correctional facility. During Rawls’

criminal trial, the Commonwealth and Rawls were under the

mistaken impression that the amendments to Code § 18.2-32 were

applicable and consequently the jury was incorrectly instructed

that it could impose a specific term of imprisonment of not more

than 40 years for the murder conviction.

The jury fixed Rawls’ punishment as follows: 25 years

imprisonment for the second degree murder conviction, two years

imprisonment for use of a firearm in the commission of murder,

five years imprisonment and a fine of $20,000 for attempted

armed robbery, and five years imprisonment for conspiracy to

commit armed robbery. The circuit court entered a judgment that

confirmed the jury’s verdict.

Rawls appealed the judgment of the circuit court to the

Court of Appeals, which refused his appeal. Rawls v.

Commonwealth, Record No. 1804-96-2 (Mar. 21, 1997). This Court

denied Rawls’ appeal from the Court of Appeals. Rawls v.

Commonwealth, Record No. 970775 (Aug. 4, 1997). Rawls did not

challenge the length of his sentence in the Court of Appeals or

this Court.

2
 In May 2008, Rawls filed a pro se motion to vacate his

conviction for murder because his 25 year sentence exceeded the

statutorily prescribed maximum range of punishment set forth in

Code § 18.2-32 as the statute existed in 1992, when Rawls

committed his crimes. The Commonwealth did not respond to

Rawls’ motion. The circuit court entered a judgment denying

Rawls’ motion to vacate. Rawls appealed the circuit court’s

judgment to this Court, and we appointed counsel for Rawls and

granted his appeal.

After Rawls had filed a petition for appeal in this Court,

the Commonwealth filed its own motion to vacate in the circuit

court styled, Commonwealth v. Rawls. The Commonwealth conceded

in its motion that the jury had been improperly instructed

regarding the range of punishment for second degree murder. The

Commonwealth also acknowledged that at the time that Rawls

committed the murder, the crime was punishable for a term of

imprisonment not less than five years nor more than 20 years.

The Commonwealth requested that the circuit court “vacate its

Sentencing Order of July 10, 1996, and enter a new Order

sentencing the defendant to a term of imprisonment of twenty

years on his conviction of second degree murder.”

The circuit court entered an order that stated in part:

“This Court finds that the defendant was sentenced to serve
25 years in prison for second-degree murder on July 10,
1996, and that the sentence exceeded the range of

3
 punishment prescribed by statute by five years. The Court
hereby vacates its Sentencing Order of July 10, 1996, in
this case and enters a new Order sentencing the defendant
to a term of imprisonment of twenty years on his conviction
of second-degree murder.”

Rawls objected to this order and asserted, among other things,

that he was entitled to a new sentencing hearing for the murder

conviction. We granted Rawls an appeal from this judgment and

we consolidated both appeals.

III.

Rawls contends that the portion of his sentence that

exceeds the statutorily prescribed maximum punishment is invalid

and void. Continuing, Rawls argues that at a minimum he is

entitled to a new sentencing hearing on the second degree murder

conviction because the circuit court’s judgment that merely

deleted the excess punishment resulted in the imposition of a

sentence that contained “a speculative element.”

Responding, the Commonwealth claims that Rawls has

procedurally defaulted his claims. The Commonwealth also

asserts that Rawls is not entitled to a new sentencing hearing

and that the circuit court’s order that reduced the excessive

portion of Rawls’ sentence is appropriate and consistent with

this Court’s jurisprudence. Additionally, the Commonwealth

argues that the circuit court’s decision to reduce the excessive

portion of Rawls’ sentence and enter a judgment for the maximum

sentence permitted when Rawls committed the murder did not

4
involve speculation. We disagree with the Commonwealth’s

contentions.

We reject the Commonwealth’s argument that Rawls has

defaulted his claims procedurally. Rawls filed a motion to

vacate his sentence on the basis that the sentence for the

murder conviction was void because it exceeded the statutory

range provided by law. This Court has recognized that a motion

to vacate is an appropriate procedural device to challenge a

void conviction. See Williams v. Commonwealth, 263 Va. 189,

189, 557 S.E.2d 233, 233 (2002); Commonwealth v. Southerly, 262

Va. 294, 299, 551 S.E.2d 650, 653 (2001). Additionally, we

stated in Virginia Dept. Corr. v. Crowley, 227 Va. 254, 261, 316

S.E.2d 439, 443 (1984) that “[w]ant of subject-matter

jurisdiction may be raised by motion.” Accord Nolde Bros. v.

Chalkey, 184 Va. 553, 561, 35 S.E.2d 827, 830 (1945), aff’d on

other grounds sub nom. Feitig v. Chalkey, 185 Va. 96, 107, 38

S.E.2d 73, 78 (1946); Thacker v. Hubard, 122 Va. 379, 386, 94

S.E. 929, 930 (1918). A circuit court may correct a void or

unlawful sentence at any time. Powell v. Commonwealth, 182 Va.

327, 340, 28 S.E.2d 687, 692 (1944).

We note that the Commonwealth’s remaining procedural

arguments are without merit. Thus, we will consider the

litigants’ substantive arguments.

5
 As Rawls and the Commonwealth recognize, this Court has

held that “[a] sentence in excess of that prescribed by law is

not void ab initio because of the excess, but is good in so far

as the power of the court extends, and is invalid only as to the

excess.” Royster v. Smith, 195 Va. 228, 236, 77 S.E.2d 855, 859

(1953); accord Charles v. Commonwealth, 270 Va. 14, 20, 613

S.E.2d 432, 435 (2005); Crutchfield v. Commonwealth, 187 Va.

291, 297-98, 46 S.E.2d 340, 343 (1948). Additionally, we stated

in Powell, 182 Va. at 340, 28 S.E. at 692: “The authorities are

unanimous in the view that a court may impose a valid sentence

in substitution for one that is void, even though the execution

of the void sentence has commenced. . . . The invalidity of the

judgment does not affect the validity of the verdict.”

Our determinations, whether a defendant who has been

sentenced in excess of the statutorily prescribed range of

punishment is entitled to a new sentencing hearing, have not

been uniform. In many instances, our jurisprudence requires a

court to speculate regarding how a jury would have fixed a

defendant’s punishment had the jury been properly instructed or

had the jury properly applied a correct instruction.

In Hodges v. Commonwealth, 213 Va. 316, 191 S.E.2d 794

(1972), we considered the appropriate punishment to be imposed

upon a defendant who had been sentenced to death but the

judgment of death was invalidated by the Supreme Court’s

6
decision in Furman v. Georgia, 408 U.S. 238 (1972). The Supreme

Court held in Furman that state statutes which authorized

discretionary imposition of the death penalty offend the Eighth

and Fourteenth Amendments to the Federal Constitution.

Rejecting the Commonwealth’s suggestion in Hodges that this

Court fix the defendant’s punishment, we stated:

“Under the Constitution of Virginia the right to trial
by jury in criminal cases is guaranteed. Va. Const. Art.
I, § 8. Moreover, [when] a criminal case is tried by a
jury the punishment shall be ascertained by it. Code
§ 19.1-291, -292. Here the jury fixed [the defendant’s]
punishment for the . . . murder at the maximum permitted at
the time of trial. Nevertheless, it would be sheer
speculation for us to conclude that, if death had not then
been a permissible punishment, the jury would have fixed
the punishment at life imprisonment. The jury might well
have agreed upon 99 years, as it did for [another] murder
[that the defendant had committed].”

Hodges, 213 Va. at 320-21, 191 S.E.2d at 797. This Court

remanded the case to the circuit court for a new trial on the

issue of punishment only for the capital murder conviction. Id.

at 321, 191 S.E.2d at 798.

In Huggins v. Commonwealth, 213 Va. 327, 191 S.E.2d 734

(1972), this Court again considered the appropriate punishment

for a defendant whose punishment had been fixed at death by a

jury and the punishment was invalidated by Furman v. Georgia,

supra. This Court remanded the case to the circuit court for a

new trial on the issue of punishment. We stated that in

7
Virginia, a defendant’s right of trial by jury includes a jury’s

determination of guilt and the corresponding penalty.

In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509

(1973), we considered whether a defendant who had been sentenced

in excess of the statutorily prescribed range of punishment was

entitled to a new sentencing hearing. In Deagle, a jury had

four statutorily prescribed sentencing alternatives available to

it when the jury considered a defendant’s punishment and the

jury fixed two punishments that were incompatible. The jury

imposed a punishment of ten years in the penitentiary and a fine

of $1,000. Under the relevant statutes, however, the jury could

have imposed a ten year penitentiary sentence upon the

defendant, or the jury could have fixed the punishment at a fine

of $1,000, but the jury could not impose both punishments. When

the circuit court realized that the jury had improperly fixed

the defendant’s punishment beyond the statutory range of

punishment, the circuit court deleted the fine, thereby

rendering the sentence consistent with the prescribed range of

punishment.

This Court rejected the defendant’s request for a new

sentencing hearing, stating:

“From the verdicts we know that the jury intended that
[the defendant] be sentenced to serve ten years in the
penitentiary on each indictment. We also know that the
jury wanted [the defendant] to pay a fine of $1,000 on each
indictment.

8
 “Common sense and reason dictate that the jury, if it
had been required to choose between the two punishments it
fixed, would have imposed the greater, the penitentiary
sentence, and not the lesser, the fine.

“For this reason we find no error by the trial court
in deleting the fines and imposing the penitentiary
sentences for we perceive no possible prejudice to the
defendant from this action.”

Deagle, 214 Va. at 306, 199 S.E.2d at 511.

In Waller v. Commonwealth, 192 Va. 83, 89, 63 S.E.2d 713,

717 (1951), we considered an appeal filed by a defendant who had

been convicted and subsequently sentenced by a jury in excess of

the statutory range of punishment. In contrast to Deagle, in

Waller we granted the defendant a new trial. Additionally, in

Jones v. Commonwealth, 61 Va. (20 Gratt.) 848, 858-59 (1871), we

awarded a defendant a new trial when the jury fixed the

defendant’s punishment below the statutorily prescribed

mandatory minimum punishment.

As our jurisprudence demonstrates, we have not acted

uniformly when determining whether a defendant, who received an

improper sentence, was entitled to a new sentencing hearing.

For example, if as in Huggins and Hodges, this Court believed

that upon retrial a jury may impose a punishment less than the

maximum allowable, this Court concluded that a circuit court

could only speculate regarding the punishment that a jury might

fix and thus the defendants received a new sentencing hearing.

9
However, if as in Deagle, a jury imposed two punishments that

are not both statutorily authorized, one punishment which is a

fine and the other punishment a lengthy penitentiary term, this

Court concluded that the jury intended to impose the harsher

punishment and the elimination by a circuit court of the excess

punishment did not involve speculation. We also observe that

the Court of Appeals has held that if a jury imposes a

punishment that it thinks is the maximum allowable by statute

but the actual statutorily prescribed maximum punishment is

less, the elimination of the excess punishment and the

imposition of the legally permissible lesser maximum punishment

would not involve speculation because presumably the jury

intended to fix the greater punishment. Dargan v. Commonwealth,

27 Va. App. 495, 497-99, 500 S.E.2d 228, 229-30 (1998).

Thus, our jurisprudence permits a court to improperly

instruct a jury regarding the statutorily permissible range of

punishment and subsequently correct a defendant’s sentence,

thereby depriving that defendant of his right to be sentenced by

a jury. This practice diminishes a criminal defendant’s right

to a jury trial.

As illustrated by the facts in Rawls’ case, even though the

jury was improperly instructed that it could fix Rawls’

punishment at a maximum of 40 years imprisonment, the jury fixed

his punishment at 25 years imprisonment which is five-eighths of

10
what the jury thought was the maximum punishment. Can we infer

with any confidence that had the jury been properly instructed

that the maximum punishment it could impose upon Rawls for the

second degree murder conviction was 20 years imprisonment the

jury would have fixed his punishment at 13 years imprisonment,

which is approximately five-eighths of 20 years? Absolutely

not. Such inference would require that this Court engage in

sheer speculation.

Today we adopt the following rule that is designed to

ensure that all criminal defendants whose punishments have been

fixed in violation of the statutorily prescribed ranges are

treated uniformly without any speculation. We hold that a

sentence imposed in violation of a prescribed statutory range of

punishment is void ab initio because “the character of the

judgment was not such as the [C]ourt had the power to render.”

Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887);

accord Evans v. Smyth-Wythe Airport Common, 255 Va. 69, 73, 495

S.E.2d 825, 828 (1998). Thus, a criminal defendant in that

situation is entitled to a new sentencing hearing. This common

law rule of jurisprudence will eliminate the need for courts to

resort to speculation when determining how a jury would have

sentenced a criminal defendant had the jury been properly

instructed or had the jury properly followed correct

instructions. Applying this rule to Rawls, we hold that he is

11
entitled to a new sentencing hearing on his second degree murder

conviction and that the circuit court erred by reducing his

second degree murder conviction to a sentence of 20 years

imprisonment.

We will decline Rawls’ request for a new sentencing hearing

on his remaining convictions. Rawls did not raise this issue in

the circuit court and we decline to invoke the ends of justice

exception contained in Rule 5:25. The jury was properly

instructed on Rawls’ other convictions and the jury sentenced

him within the statutorily prescribed ranges of punishment for

those convictions.

Accordingly, we will deny Rawls’ request to vacate his

convictions with the exception of his second degree murder

conviction. Rawls’ second degree murder conviction will remain

intact; we will vacate the sentence of 20 years imprisonment;

and we will remand this conviction to the circuit court for a

new sentencing hearing.

Affirmed in part,
reversed in part,
and remanded.

12