COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Clements
Argued at Alexandria, Virginia
DONALD LEON JETT
OPINION BY
v. Record No. 3073-99-4 JUDGE JERE M. H. WILLIS, JR.
JANUARY 30, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
Jerry O. Talton, Jr., for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Donald Leon Jett was convicted of one count of statutory
burglary, in violation of Code § 18.2-91, and one count of
robbery, in violation of Code § 18.2-58. On appeal, he contends
(1) that the trial court erred by misapplying the Virginia
Sentencing Guidelines, and (2) that Code § 19.2-298.01(F),
denying appellate review, denied him due process. For the
reasons that follow, we affirm the judgment of the trial court.
I. BACKGROUND
Jett was indicted for common law burglary, two counts of
robbery and one count of using a firearm in the commission of a
robbery. He entered into a plea agreement, which provided, in
part:
1. The Defendant agrees to plead guilty to
the felony charge of breaking and entering
the dwelling house of [the victim] with the
intent to commit robbery (but not while
armed with a deadly weapon) in violation of
18.2-91, and guilty to one felony charge of
robbing [the victim] in violation of
18.2-58. The Defendant further agrees to
testify truthfully [against his
codefendant].
2. The Commonwealth agrees to stand mute at
sentencing. It further agrees to dismiss
with prejudice Count Four; i.e. the felony
charge under 18.2-53.1 of using a firearm
while committing robbery, and Count Three;
i.e. the felony charge under 18.2-58 of
robbing [the victim]. The Commonwealth
further agrees to amend the felony charge of
breaking and entering while armed with a
deadly weapon in Count One to felonious
breaking and entering a dwelling house with
intent to commit robbery, but not while
armed with a deadly weapon, under Va. Code
§ 18.2-91.
The agreement provided no specific punishment for the statutory
burglary and robbery charges. Pursuant to the plea agreement,
Jett pleaded guilty and was convicted of those charges. The
trial court ordered a presentence report.
At the sentencing hearing, the probation officer presented
a discretionary sentencing guideline calculation, see Code
§ 19.2-298.01, prepared on the basis that no firearm was used in
the commission of the crimes. This calculation suggested a
sentencing range of six years, five months to nine years, nine
months, with a range midpoint of eight years, three months. The
trial court rejected this calculation, noting that although,
pursuant to the plea agreement, the charges against Jett had
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been reduced by eliminating the allegation that he used a
firearm, nonetheless, the reduced crimes were committed under
circumstances involving the presence and use of a firearm. The
trial court recalculated the sentence suggested by the
guidelines, producing a suggested sentencing range from ten
years, seven months to sixteen years, seven months. Stating its
review of the circumstances surrounding the crimes and of Jett's
social and criminal history, the trial court imposed on the
statutory burglary conviction a sentence of fifteen years
confinement in the state penitentiary, execution of which it
suspended on stated terms, and on the robbery conviction, a
sentence of nine years confinement in the state penitentiary.
Jett argued to the trial court that the dismissal of the
firearm charge and the amendment of the statutory burglary and
robbery charges were an adjudication that he was not guilty of
using a firearm and that any consideration of firearm use in
calculating his sentences exposed him to double jeopardy. The
trial court disagreed, stating:
The question is under the Sentencing
Guidelines, using robbery as the appropriate
worksheet, the question is: Was there a gun
used or not? And, there was a gun used.
[Jett] didn't wield it, but his co-defendant
did. And, the instructions clearly say that
all co-defendants are scored as if the gun
was used. That is not a double jeopardy
argument. I am not convicting him twice for
the same offense. It is just simply: How
do you compute the Guidelines, the voluntary
Sentencing Guidelines?
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The trial court offered to permit Jett to withdraw from the
plea agreement. Jett declined the offer.
II. SENTENCING GUIDELINES
Jett argues that the trial court misapplied the sentencing
guidelines when it included in its calculation the use of a
firearm, even though the firearm related charges against him had
been dismissed pursuant to the plea agreement. We disagree.
The sentencing guidelines are not binding on the trial
court. See Belcher v. Commonwealth, 17 Va. App. 44, 45, 435
S.E.2d 160, 161 (1993). They are merely a tool intended to
assist the court in fixing an appropriate sentence. See id.
"If the sentence was within the range set by the legislature
[for the crime of which the defendant was convicted], an
appellate court will not interfere with the judgment." Hudson
v. Commonwealth, 10 Va. App. 158, 160-61, 390 S.E.2d 509, 510
(1990).
Jett received the benefit of his plea agreement.
Elimination of the allegations that he committed his crimes
while armed with a deadly weapon reduced his statutory burglary
charge from an accusation carrying a potential sentence of
confinement in the penitentiary for life to one carrying a
maximum potential sentence of twenty years. The firearm charge
and one robbery charge were dismissed. The sentences imposed
were within the statutory limits provided for the crimes of
which he was convicted.
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III. DUE PROCESS
Code § 19.2-298.01(F) states:
The failure to follow any or all of the
provisions of [the sentencing guidelines] or
the failure to follow any or all of the
provisions of this section in the prescribed
manner shall not be reviewable on appeal or
the basis of any other post-conviction
relief.
Jett did not raise this question before the trial court.
Ordinarily, our review of a trial court's rulings is limited to
consideration of questions submitted to the trial court. See
Rule 5A:18. However, Jett argues that a legislatively imposed
limitation on the scope of appellate review is not a matter
properly submitted to a trial court, and, thus, Rule 5A:18
should not apply.
Accepting without deciding that this issue is outside the
proper scope of Rule 5A:18, we nonetheless perceive no due
process violation. The legislature acted within its authority
when it created the sentencing guidelines and provided that
those guidelines would be discretionary and not mandatory. It
confirmed the discretionary aspect of the guidelines by leaving
their implementation solely within the discretion of the trial
courts and by excluding decisions relating to the application of
the guidelines from appellate review. This structural
determination denied Jett no substantive or procedural right
that he was entitled under the law to enjoy.
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The judgment of the trial court is affirmed.
Affirmed.
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