COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
KEVIN DARNELL WILLIAMS
MEMORANDUM OPINION * BY
v. Record No. 1114-00-2 JUDGE ROBERT P. FRANK
JUNE 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on brief), for
appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Kevin Darnell Williams (appellant) was convicted by a jury of
robbery, use of a firearm, and possession of a firearm by a felon.
On appeal, he contends the trial court erred in sentencing him to
a sentence greater than that fixed by the jury on the robbery
count. We agree. We, therefore, vacate the sentence for robbery
and remand for resentencing.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I. BACKGROUND 1
A jury, in a bifurcated trial, found appellant guilty of
robbery, use of a firearm in the commission of a felony, and
possession of a firearm by a felon. At the conclusion of the
sentencing phase, the jury fixed appellant's punishment for the
robbery conviction at five years.
After considering a pre-sentence report, the trial court
sentenced appellant on the robbery conviction to eight years in
prison with three years suspended for a period of fifteen years
conditioned on good behavior and supervised probation. The
sentences on the remaining felonies were in accordance with the
jury's verdict. At trial, appellant did not object to the
sentence.
II. ANALYSIS
Appellant contends the trial court did not have authority to
increase the penalty fixed by the jury. While this issue was not
raised at the trial court, the Commonwealth, in its brief,
conceded that this issue should not be procedurally defaulted
under Rule 5A:18. We agree.
"The Court of Appeals will not consider
an argument on appeal which was not
presented to the trial court." Ohree v.
Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998) (citing Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405
S.E.2d 630, 631 (1991)). However, Rule
1
We do not recite the facts of the offense because such
recitation is not necessary for our analysis.
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5A:18 provides for consideration of a ruling
by the trial court that was not objected to
at trial "to enable the Court of Appeals to
attain the ends of justice." "'The ends of
justice exception is narrow and is to be
used sparingly'" when an error at trial is
"'clear, substantial and material.'" Redman
v. Commonwealth, 25 Va. App. 215, 220-21,
487 S.E.2d 269, 272 (1997) (quoting Brown v.
Commonwealth, 8 Va. App. 126, 132, 380
S.E.2d 8, 10-11 (1989)). "In order to avail
oneself of the exception, a defendant must
affirmatively show that a miscarriage of
justice has occurred, not that a miscarriage
might have occurred." Id. at 221, 487
S.E.2d at 272 (citing Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357
S.E.2d 742, 744 (1987)).
Legette v. Commonwealth, 33 Va. App. 221, 224, 532 S.E.2d 353,
354 (2000).
In the present case, we find manifest injustice because
appellant was sentenced to a term in excess of that fixed by the
jury. We, therefore, apply the "ends of justice" exception to
Rule 5A:18 and address the merits of the appeal.
In Batts v. Commonwealth, 30 Va. App. 1, 515 S.E.2d 307
(1999), we wrote:
We recognize that Virginia law has
historically maintained a clear distinction
between the roles played by judge and jury in
criminal sentencing. See Duncan v.
Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d
392, 394 (1986). "Under the statutory
scheme, the jury determines the guilt or
innocence of the accused. If the jury finds
that he is guilty, it then 'ascertains' or
'fixes' the maximum punishment in accordance
with contemporary community values and within
the limits established by law." Id.
(emphasis added). "After
conviction, . . . the court may suspend
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imposition of sentence or suspend the
sentence in whole or part . . . ." Code
§ 19.2-303.
"'[T]he punishment as fixed by the jury
is not final or absolute, since its finding
on the proper punishment is subject to
suspension by the trial judge, in whole or in
part, on the basis of any mitigating facts
that the convicted defendant can marshal.
The verdict of the jury is the fixing of
maximum punishment which may be
served. . . .'" Duncan, 2 Va. App. at 345,
343 S.E.2d at 394 (quoting Vines v. Muncy,
553 F.2d 342, 349 (4th Cir. 1977)) (emphasis
added).
Clearly, the trial judge may reduce a
sentence but may not exceed the "maximum
punishment" fixed by the jury.
Id. at 15-16, 515 S.E.2d at 314-15.
On brief, the Commonwealth agrees the trial court can only
increase the penalty fixed by the jury under the provisions of
Code §§ 18.2-10 and 19.2-295.2. However, the Commonwealth
contends the trial court added the post-release supervision under
these two provisions. Essentially, the Commonwealth argues the
trial court sentenced appellant to the five years fixed by the
jury and then imposed a three-year post-release supervision
period. Neither the sentencing order nor the transcript of the
sentencing proceeding reflects that the trial court referred to
post-release supervision or to Code §§ 18.2-10 and 19.2-295.2.
Further, under Code § 19.2-295.2 "[t]he period of
[post-release] supervision shall be established by the court;
however, such period shall not be less than six months nor more
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than three years." Code § 19.2-295.2. The trial court suspended
three of the eight-year sentence for a period of fifteen years.
The fifteen years far exceeded the three-year maximum period of
post-release supervision established in Code §§ 18.2-10 and
19.2-295.2.
The jury fixed appellant's penalty at five years. The trial
court then added three years to the jury's sentence and then
suspended three of those years. While the trial court may have
intended to impose an additional three-year post-release
supervision, the record does not reflect that disposition.
Finding that the trial court erred in imposing a sentence in
excess of the time fixed by the jury, we vacate the sentencing
order as it applies to the robbery conviction and remand for a
sentencing hearing consistent with this opinion. The trial court,
on remand, may or may not impose post-release supervision. 2
For these reasons, we, therefore, vacate the sentencing
order for the robbery conviction and remand for a new sentencing
hearing.
Vacated and remanded.
2
The Commonwealth concedes this case should be remanded
"for the entry of a corrected order explicitly invoking the
provisions of Code §§ 18.2-10(g) and 19.2-295.2." We cannot
remand on such a narrow basis since the trial court must
determine if post-release supervision is appropriate. For
offenses committed between January 1, 1995 and June 30, 2000,
post-release supervision was discretionary.
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