COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Bumgardner
Argued at Salem, Virginia
ANTONAUS MAURICE WEBB
OPINION BY
v. Record No. 2179-98-3 JUDGE RICHARD S. BRAY
FEBRUARY 8, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Thomas S. Leebrick for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Antonaus Maurice Webb (defendant) was convicted by a jury in
a bifurcated trial of malicious wounding, use of a firearm in the
commission of a felony, discharging a firearm in a motor vehicle,
and shooting at an occupied motor vehicle. On appeal, he
complains that the trial court erroneously permitted the
Commonwealth to prove during the sentencing phase that defendant
had previously been found guilty, though not sentenced, for three
unrelated criminal offenses, and, additionally, had violated the
terms of a probationary sentence. We agree that the jury was
improperly permitted to consider the three offenses and,
therefore, reverse and remand for resentencing.
I.
The relevant procedural history is uncontroverted.
Immediately preceding the sentencing phase of trial, defendant
objected to the introduction into evidence of an order previously
entered in an unrelated prosecution finding him guilty for
possessing cocaine with intent to distribute, possessing
marijuana, and impeding a law enforcement officer. Although these
offenses were included as "convictions" in a notification letter
provided defendant by the Commonwealth pursuant to Code
§ 19.2-295.1, the court had not imposed attendant sentences.
Defendant, therefore, argued that no final order of conviction had
been entered on such prosecutions.
Defendant also objected to the introduction of a second
unrelated order which memorialized a prior violation of probation.
Although the Commonwealth had properly advised defendant of its
intention to introduce evidence of the underlying conviction, the
notice made no mention of the subsequent violation order.
Defendant contends that such violation was tantamount to a "felony
conviction" and, therefore, likewise subject to notice from the
Commonwealth pursuant to Code § 19.2-295.1.
In addition to the prior orders in issue, the Commonwealth
presented uncontroverted evidence at sentencing of nine criminal
convictions, including two each for grand larceny and possession
of cocaine, and one each for possession of a firearm while in
possession of cocaine, burglary, breaking and entering, assault
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and battery and failure to appear. These convictions dated from
December, 1987, to the most recent, the failure to appear in
March, 1998.
II.
Code § 19.2-295.1 provides, inter alia, that "the
Commonwealth shall present the defendant's criminal convictions by
. . . copies of the record of conviction" during the sentencing
phase of a bifurcated trial. "The Commonwealth shall provide to
the defendant fourteen days prior to trial notice of its intention
to introduce evidence of [such] prior criminal convictions,"
including "(i) the date of each conviction, (ii) the name and
jurisdiction of the court where each prior conviction was had, and
(iii) each offense of which he was convicted." Code § 19.2-295.1.
"The language of the statute is clear and its intent plain. As
adopted by the legislature, the statute limits the introduction of
evidence by the Commonwealth to charges for which a defendant has
been convicted." Byrd v. Commonwealth, 30 Va. App. 371, 374, 517
S.E.2d 243, 244 (1999).
In Smith v. Commonwealth, 134 Va. 589, 113 S.E. 707 (1922),
the Supreme Court of Virginia acknowledged that "conviction" has
been "differently defined" through the years and instructed that
"where the reference is to the ascertainment
of guilt in another proceeding, in its
bearings upon the status or rights of the
individual in a subsequent case, . . . a
broader meaning attaches to the expressions
[conviction or convicted], and a
'conviction' is not established, or a person
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deemed to have been 'convicted' unless it is
shown that a judgment has been pronounced
upon the verdict."
Id. at 598, 113 S.E. at 709 (citation omitted). Recently, in
Ramdass v. Commonwealth, 248 Va. 518, 480 S.E.2d 360 (1994), the
Court revisited the term and, citing Smith with approval,
concluded that a jury verdict "cannot be considered as a
conviction," absent "[j]udgment . . . entered on [the] verdict."
Id. at 520, 480 S.E.2d at 361 (guilty verdict was not a
conviction rendering defendant ineligible for parole). Guided
by Ramdass, we concluded in Batts v. Commonwealth, 30 Va. App.
1, 515 S.E.2d 307 (1999), that a "jury's verdict . . . was not a
final conviction without the entry of the sentencing order[.]"
Id. at 12, 515 S.E.2d at 313.
It is, therefore, now well established in our jurisprudence
that a "conviction" ordinarily embraces both an adjudication of
guilt and a related sentence, thus concluding a prosecution by
final order. Such interpretation is especially compelling in
the context of jury sentencing pursuant to Code § 19.2-295.1,
which expressly requires the Commonwealth to provide the jury
with a defendant's "record of convictions" for consideration in
determining an appropriate punishment. "[T]he legislature
incorporated the term 'record of conviction' into Code
§ 19.2-295.1 aware that its meaning includes both conviction and
punishment, thereby intending to assist the jury in fashioning a
sentence suitable both to [the] defendant and the offense."
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Gilliam v. Commonwealth, 21 Va. App. 519, 524, 465 S.E.2d 592,
595 (1996); see also Brooks v. Commonwealth, 24 Va. App. 523,
532-33, 484 S.E.2d 127, 131 (1997).
Thus, the trial court in the instant proceeding erroneously
permitted the jury to consider, as convictions for purposes of
fixing punishment, three offenses for which defendant had
previously been found guilty, but not sentenced, incomplete
"records of conviction" not contemplated by Code § 19.2-295.1.
Contrary to the Commonwealth's argument, such error was not
harmless.
It is well established that, absent a curative instruction,
non-constitutional error is presumed prejudicial, unless "'it
plainly appears from the record and the evidence given at the
trial that the parties have had a fair trial on the merits and
substantial justice has been reached.'" Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc) (emphasis omitted) (quoting Code § 8.01-678). "An
error does not affect a verdict if a reviewing court can
conclude, without usurping the jury's fact finding function,
that, had the error not occurred, the verdict would have been
the same." Id. "The effect of an error on a verdict varies
widely 'depending upon the circumstances of the case.' Each
. . . must . . . be analyzed individually to determine if an
error has affected the verdict." Id. at 1009, 407 S.E.2d at 913
(citation omitted).
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Upon review of subject record, we are unable to conclude
that it "plainly appears" that the sentences in dispute were
unaffected by consideration of the three offenses by the jury.
"[T]he bifurcated procedure established in Code § 19.2-295.1
clearly manifests a legislative intent to provide juries with
information specific only to sentencing[.]" Gilliam, 21 Va.
App. at 525, 465 S.E.2d at 595. "[T]he prior criminal
convictions of a felon, including previous efforts to
rehabilitate, '"bear upon a tendency to commit offenses, the
probabilities of rehabilitation, and similar factors"'
indispensable to the determination of an appropriate sentence."
Id. at 524, 465 S.E.2d at 595 (citations omitted). We cannot at
once reason that such considerations promote enlightened
sentencing and dismiss as harmless the prejudicial effects of
inadmissible, although facially relevant, evidence pertaining to
sentencing issues.
Accordingly, we reverse the sentencing order and remand the
proceedings to the trial court for resentencing pursuant to Code
§ 19.2-295.1 and this opinion. 1
Reversed and remanded.
1
We expressly decline to address the Commonwealth's failure
to provide defendant notice of the probation violation because
such issue will not arise upon resentencing.
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