COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
JAMES B. TERRELL
MEMORANDUM OPINION * BY
v. Record No. 1669-99-2 JUDGE JERE M. H. WILLIS, JR.
APRIL 11, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
H. Selwyn Smith, Judge Designate
L. Willis Robertson, Jr. (Cosby and
Robertson, on brief), for appellant.
(Mark L. Earley, Attorney General; Shelly R.
James, Assistant Attorney General, on brief),
for appellee.
On appeal from his conviction of abduction with the intent
to defile, in violation of Code § 18.2-48, and "felony assault,"
in violation of Code § 18.2-51, James B. Terrell contends that
the trial court erred in sentencing him to thirty years
imprisonment for "felony assault." We find that Terrell was
convicted of unlawful wounding, in violation of Code § 18.2-51.
We reverse the sentence imposed on that conviction and remand
the case for resentencing.
The first issue in this case is whether Terrell was
convicted of unlawful or malicious wounding. See Code
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
§ 18.2-51. The indictment charged that he "did unlawfully and
feloniously stab, cut, or cause bodily injury to Doris Wickowski
with the intent to maim, disfigure, disable or kill." The
indictment contained no allegation that the act was committed
maliciously. Thus, the indictment charged Terrell with unlawful
wounding, rather than malicious wounding. See id.
Terrell pled guilty to the indictment and, thus, to
unlawful wounding, a Class 6 felony. The maximum prison
sentence provided for that offense is five years imprisonment,
rather than the maximum of twenty years imprisonment provided
for malicious wounding, a Class 3 felony. See Code § 18.2-10.
The sentencing order, entered June 14, 1999, states:
The Court SENTENCED the defendant to:
Incarceration with the Department of
Corrections for the term of: twenty (20)
years for Abduction, [Code §] 18.2-48, and
thirty (30) years for Felony Assault, [Code
§] 18.2-51. The total sentence imposed was
fifty (50) years.
The Court SUSPENDED twenty (20) years
of the Abduction sentence, upon [certain]
conditions . . . ."
This order, which was signed by the trial judge, became final.
The Commonwealth contends that the trial court actually
intended to sentence Terrell for thirty years for the abduction
and twenty years for the wounding and that the June 14, 1999
order reflected a correctable clerical error. Code § 8.01-428
provides:
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Clerical mistakes in all judgments or
other parts of the record and errors therein
arising from oversight or from an
inadvertent omission may be corrected by the
court at any time on its own initiative or
upon the motion of any party and after such
notice, as the court may order. During the
pendency of an appeal, such mistakes may be
corrected before the appeal is docketed in
the appellate court, and thereafter while
the appeal is pending such mistakes may be
corrected with leave of the appellate court.
Code § 8.01-428(B).
"[We] must dispose of the case upon the record and cannot
base [our] decision upon appellant's petition or brief, or
statements of counsel in open court. We may act only upon facts
contained in the record." Smith v. Commonwealth, 16 Va. App.
630, 635, 432 S.E.2d 2, 6 (1993). Nothing in the record of the
sentencing hearing supports the sentence suggested by the
Commonwealth; that is, that the trial court merely inverted and
misrecorded the imposed sentences.
At sentencing the trial court stated, in relevant part:
But I know one thing, it's just guidelines
and all I have to is to justify -- I don't
know whether I have to justify it; I have to
state why I sentenced to more. But in my
humble opinion, knowing that you will be
serving eighty-five percent, at least
eighty-five percent of the time I give you,
I've taken into consideration your age, the
sentence that I'm about to make, the age of
your victim, the condition the victim was
left in, where it took place, when it took
place, and the end result being the ultimate
that she will be suffering as far as the
future's concerned. . . .
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I hear what the Commonwealth has said,
but I'm sentencing him to thirty years in
the penitentiary. I'm not suspending any
portion of that because the way I figure it,
eighty-five percent of that, if he serves
that much time, you won't be able to get out
until you're about twenty-five and a half
years in the penitentiary. Add that to your
present age at forty-one, right? You're
forty-one years of age?
* * * * * * *
On the abduction, the twenty years, I
am going to suspend that -- all that time.
At no time did the trial court clarify the sentence in such a
way that the sentencing order can clearly be deemed a clerical
error. Rather, the sentencing judge reviewed and signed the
order. The Commonwealth lodged no objection. No further order
has been entered.
The twenty year sentence imposed for abduction with the
intent to defile is within the range provided by statute and is
lawful. See Code § 18.2-48. That sentence and its suspension
are not on appeal and are final.
The trial court erred in sentencing Terrell to thirty years
imprisonment for a Class 6 felony, unlawful wounding.
Accordingly, we reverse and vacate that sentence and remand that
conviction to the trial court for resentencing in accordance
with Code § 18.2-51.
Reversed and remanded.
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