Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and Agee,
JJ., and Carrico, S.J.
JAMES HOWARD WILLIAMS
OPINION BY
v. Record No. 042647 SENIOR JUSTICE HARRY L. CARRICO
November 4, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal involves the application of Code § 19.2-295.2,
which provides in pertinent part as follows:
A. At the time the court imposes sentence upon a conviction
for any felony offense . . . the court . . . shall, in
addition to any other punishment imposed if such other
punishment includes an active term of incarceration in a
state or local correctional facility, . . . impose a term
of postrelease supervision of not less than six months nor
more than three years, as the court may determine. Such
additional term shall be suspended and the defendant placed
under postrelease supervision upon release from the active
term of incarceration.
B. The period of postrelease supervision shall be under the
supervision and review of the Virginia Parole Board.[1]
The defendant, James Howard Williams, was indicted for the
possession or transportation of a firearm after having been
convicted of a felony in violation of Code § 18.2-308.2. The
defendant was also indicted for knowingly buying, receiving, or
1
Code § 18.2-10(g) parallels Code § 19.2-295.2. Section
18.2-10(g) provides in pertinent part that for any felony
offense where the sentence includes an active term of
incarceration in a correctional facility, the trial court “shall
. . . impose an additional term of not less than six months nor
more than three years, which shall be suspended conditioned upon
aiding in concealing a stolen firearm in violation of Code
§ 18.2-108.l. A jury convicted the defendant of both offenses
and fixed his punishment at five years’ imprisonment on the
first charge and two and one-half years on the second charge.
The trial court imposed the sentences fixed by the jury and
in addition imposed upon him a three-year term of postrelease
supervision. The court suspended the three-year sentence of
postrelease supervision upon condition that the defendant “shall
be of good behavior for ten (10) years commencing upon his
release from confinement.” The trial court placed the defendant
on probation “under the supervision of a Probation Officer” for
three years upon his release from confinement.2
The defendant appealed his convictions to the Court of
Appeals. He argued there that the total sentence imposed,
including the term of postrelease supervision, exceeded the
maximum punishment the law permitted for two Class 6 felonies
and that the trial court abused its discretion by imposing such
a sentence.
successful completion of a period of post–release supervision
pursuant to § 19.2-295.2.”
2
The defendant argues on brief that the suspension of the
three-year term “was conditioned upon the [defendant] being
placed under the supervision of a District 9 probation officer,
not under the supervision of the Virginia Parole Board which is
what is contemplated and directed by Virginia Code § 19.2-
295.2.” However, this argument was not made at trial and,
therefore, it will not be considered by this Court. Rule 5:25.
2
The Court of Appeals rejected this argument, finding that
the sentences imposed by the trial court, including the three-
year term of postrelease supervision, “were within the ranges
set by the legislature” and, accordingly, that “the [trial]
court did not abuse its discretion in sentencing [the
defendant].” The Court of Appeals denied the defendant’s
petition for appeal by an unpublished per curiam opinion, and we
awarded him this appeal. In the sole assignment of error before
this Court, the defendant contends that the Court of Appeals
committed reversible error in finding that his sentences were
valid.
The Court of Appeals also noted the defendant made two
other claims, viz., that “Code § 19.2-295.2 is ambiguously
worded and that his sentence violated his constitutional
rights.” The Court of Appeals held that the defendant “did not
raise these claims in the trial court” and, accordingly, that
Rule 5A:18 barred “consideration of these questions on appeal.”
The defendant makes these same two claims in this Court.
However, he has not assigned error to the Court of Appeals’
holding that consideration of the two claims was barred by Rule
5A:18. In the absence of such an assignment of error,
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consideration of these two claims is also barred here. Rule
5:17(c).3
Accordingly, we will consider only the defendant’s
contention that his sentences, including the term of postrelease
supervision, exceeded the maximum punishment permitted for two
Class 6 felonies and constituted an abuse of discretion by the
trial court. The defendant points out that each of the two
felonies with which he was charged carried a maximum sentence of
five years, for a total of ten years. The defendant then argues
that when the three-year term of postrelease supervision imposed
by the trial court is added to the seven-and-one-half-year terms
fixed by the jury, his sentences total ten and one-half years,
exceeding by six months the maximum ten-year term the defendant
3
With respect to his constitutional claim, the defendant
argued in the Court of Appeals that “[t]he trial court exceeded
its authority to impose a sentence greater than the jury
recommendation based on facts that were found by the trial court
and not by the jury in violation of [the defendant’s] due
process right to a fair sentencing hearing.” In support of his
argument, the defendant cited Blakely v. Washington, 542 U.S.
296,___, 124 S.Ct. 2531 (2004). He also cites Blakely in his
brief filed in this Court and adds Apprendi v. New Jersey, 530
U.S. 466 (2000). In both cases, it is stated that “ ‘[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.’ ”
Blakely, 542 U.S. at ___, 124 S.Ct. at 2536; Apprendi, 530 U.S.
at 490. In view of the defendant’s failure to assign error to
the Court of Appeals’ holding on this claim, we express no
opinion on the applicability of Blakely and Apprendi to the case
before us.
4
says is allowed for two Class 6 felonies, resulting in an
illegal sentence.
We disagree with the defendant. He would have us ignore
the three-year term of postrelease supervision when computing
the length of the term permitted for two Class 6 felonies,
resulting in a permitted term of only ten years, but count the
three-year term when calculating the total length of punishment
imposed, resulting in a term of ten and one-half years, six
months in excess of the permitted sentences.
This would be a misapplication of Code § 19.2-295.2. Under
a proper application of the Code section, in determining the
length of a permitted sentence, the three-year term of
postrelease supervision is added to the ten-year term that could
have been imposed for the two offenses of which the defendant
was convicted. This produces a permitted term of thirteen
years, greater by thirty months than the ten and one-half years
of punishment actually imposed upon the defendant. Thus, the
sentences imposed by the trial court, including the three-year
term of postrelease supervision, were within the ranges set by
the General Assembly and, therefore, were not illegal.
Nor did the trial court abuse its discretion by imposing
the sentences. “[W]hen a statute prescribes a maximum
imprisonment penalty and the sentence does not exceed that
maximum, the sentence will not be overturned as being an abuse
5
of discretion.” Abdo v. Commonwealth, 218 Va. 473, 479, 237
S.E.2d 900, 903 (1977).
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
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