COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Frank
Argued at Richmond, Virginia
AARON MARDIE LEGETTE
OPINION BY
v. Record No. 1893-99-2 JUDGE ROBERT P. FRANK
AUGUST 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Gregory W. Franklin, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
John H. McLees, Jr., Senior Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.
Aaron Mardie Legette (appellant) appeals his conviction of
malicious wounding. On appeal, he contends the trial court
erred in convicting him and sentencing him for malicious
wounding because he was indicted for unlawful wounding. We
agree and remand for re-sentencing.
I. PROCEDURAL HISTORY
Appellant was indicted on May 13, 1999, for unlawful
wounding. 1 At trial, appellant was arraigned on the unlawful
1
"The grand jury charges that on or about February 28,
1999, in the City of Richmond, Aaron Mardie Legette did
feloniously and unlawfully shoot, stab, cut or wound, or cause
bodily injury to Vincent Hunter, with intent to maim, disfigure,
disable or kill." The indictment made no mention of "malice,"
wounding charge. The trial court recited the language of the
indictment but did not use the phrase "unlawful wounding." The
trial court did not advise appellant of the penalty for the
offense. 2
Appellant pled not guilty to unlawful wounding, and, at the
conclusion of the case, the trial court found appellant guilty
of malicious wounding. The conviction order, however, found
appellant guilty as charged in the indictment, which was
unlawful wounding. Subsequently, appellant was sentenced to six
years in the penitentiary with four years suspended. At no time
did appellant's counsel object to the finding of guilt for
malicious wounding or to the sentencing for malicious wounding.
In fact, appellant's counsel acknowledged at the sentencing
hearing that appellant had been convicted of malicious wounding.
Additionally, at a pretrial motion for a bond reduction,
appellant stated that he had been indicted for malicious
wounding.
which is required for conviction of malicious wounding under
Code § 18.2-51.
2
Malicious wounding is a Class 3 felony with a penalty
range of five to twenty years incarceration, while unlawful
wounding is a Class 6 felony with a penalty range of one year to
five years or up to twelve months incarceration.
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II. PROCEDURAL DEFAULT
Appellant made no contemporaneous objection to the
conviction, the trial court's orders, or the sentence.
Appellant never complained to the trial court that the
indictment was insufficient to sustain a conviction or sentence
for malicious wounding. The Commonwealth maintains that
appellant's argument is barred by Rule 5A:18 and that the "ends
of justice" exception does not apply because there has been no
miscarriage of justice. The Commonwealth argues, and
appellant's counsel conceded at oral argument, that appellant,
his counsel, the Commonwealth, and the trial court all
understood appellant was on trial for malicious wounding, not
unlawful wounding.
In appellant's motion to strike the evidence at the
conclusion of the Commonwealth's case and in his closing
argument to the trial court, he only raised the issue of whether
he was the perpetrator of the offense. He did not raise the
issues of whether malice was involved or whether he was
reasonably provoked. Further, appellant does not contend that
he was unprepared to defend the charge of malicious wounding or
that he was unaware of the prosecution for malicious wounding.
Appellant concedes he did not object to the trial court's
rulings at trial but maintains the "ends of justice" and "good
cause shown" exceptions in Rule 5A:18 apply. We will focus on
the "ends of justice" exception.
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"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 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)).
In Brown, 8 Va. App. at 129, 380 S.E.2d at 9, the trial
court convicted appellant of burglary of a Fairfax dwelling, yet
the trial court mistakenly sentenced appellant for a burglary
other than the one for which he was convicted.
In our judgment, prejudice or manifest
injustice results when a person is sentenced
for a crime other than that for which he was
convicted. The error in this case is so
contrary to fundamental notions of justice
that to permit it to pass uncorrected would
seriously undermine the integrity of our
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judicial system. The ends of justice
exception permits redress in those limited
instances of obvious injustice.
Id. at 132-33, 380 S.E.2d at 11.
In this case, we find manifest injustice because appellant
was sentenced for a Class 3 felony, rather than a Class 6
felony. As earlier indicated, appellant had been arraigned on a
charge of unlawful wounding, pled to a charge of unlawful
wounding, and was found guilty of unlawful wounding. While the
trial court used the words "malicious wounding" in the
pronouncement of guilt, the conviction order convicted appellant
of unlawful wounding. A court speaks through its orders. See
Wagner v. Shird, 257 Va. 584, 588, 514 S.E.2d 613, 615 (1999)
(citing Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94
(1996)). We find that the trial court's error was "clear,
substantial and material." We, therefore, apply the "ends of
justice" exception.
III. ANALYSIS
Appellant asserts that the trial court erred in convicting
him and sentencing him for malicious wounding when he was
indicted and arraigned for unlawful wounding.
The Commonwealth relies on Cunningham v. Hayes, 204 Va.
851, 134 S.E.2d 271 (1964), a habeas corpus decision, to support
its position. In Hayes, the habeas corpus petitioner filed his
petition in the trial court to attack his conviction and
sentence for murder on the ground that his indictment had been
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sufficient to charge only manslaughter. See id. at 852, 134
S.E.2d at 272. The Supreme Court noted that the Constitution of
Virginia guarantees the right of a defendant to demand "'the
cause and nature of his accusation,'" but a defendant who does
not exercise the right is deemed to have waived it. Id. at 855,
134 S.E.2d at 274 (quoting Pine v. Commonwealth, 121 Va. 812,
834-35, 93 S.E. 652, 661 (1917)). "'[The Constitution of
Virginia] does not require that [the notice] shall be by
indictment or any other prescribed manner.'" Id.
The Court held the petitioner had notice because he
understood before and during the trial that he was on trial for
murder. See id. at 857, 134 S.E.2d at 276. Observing that the
statutory requirement for an indictment can be waived, the Court
held that the indictment was not a jurisdictional requirement
for a conviction or sentence. See id. at 855, 134 S.E.2d at 274
(citation omitted). Consequently, the Court found that habeas
corpus relief, which only is available for jurisdictional
defects, did not lie. See id. at 859, 134 S.E.2d at 277. The
Court held that non-jurisdictional defects, such as voidable
judgments like the one of which the petitioner complained, must
be raised on direct appeal. See id. Therefore, Hayes does not
stand for the proposition that a conviction of a higher offense
is proper.
The Commonwealth further relies on Henson v. Commonwealth,
208 Va. 120, 155 S.E.2d 346 (1967). There, a defendant was
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tried on an indictment, which was thought to charge robbery,
but, by oversight, only charged attempted robbery. See id. at
121, 155 S.E.2d at 346-47. The defendant was found guilty by
the trial court of robbery. See id. Prior to sentencing, the
trial court realized the error and invited defense counsel to
move to set aside the verdict because of the variance. See id.
at 123, 155 S.E.2d at 348. Counsel chose not to do so. See id.
Instead, defense counsel did not complain of the error until the
direct appeal, which requested that the case be remanded for
sentencing for attempted robbery or, in the alternative, for a
new trial on the indictment. See id. at 124, 155 S.E.2d at 349.
The Supreme Court affirmed the conviction and sentence for
robbery, holding that they were neither void nor
unconstitutional. See id. at 124, 155 S.E.2d at 349.
Expounding upon its holding in Hayes, the Court held that such a
claim must not only be raised on direct appeal, but, to be
properly cognizable on direct appeal, it must be raised by
objection in the trial court at the time of the ruling with the
grounds for the objection stated with reasonable certainty. See
id. at 125-26, 155 S.E.2d at 349-50. The defendant had not done
so. See id.
Significantly, the Court opined,
[w]hen we pointed out in Hayes that a
conviction could be attacked on a direct
appeal because of variance between
indictment and verdict, we had in mind an
appeal to correct an error made by the trial
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court. In this case the trial court
committed no error. The court invited
Henson's counsel to make a motion to set
aside the verdict because of various [sic]
from the indictment, but counsel refused to
make the motion. The court made no
erroneous ruling; it had no motion to rule
on.
Id. at 125, 155 S.E.2d at 349.
The Court then undertook a "good cause" analysis. It
refused to apply the "good cause" or "ends of justice"
exceptions because the defendant, having clearly understood he
was on trial for robbery, had received a fair trial and no
miscarriage of justice was shown. See id. at 126, 155 S.E.2d at
350. In essence, the Court refused to set aside the verdict on
appeal when the defendant, for trial tactics, refused the
invitation of the trial court to make that motion during trial.
Henson does not control here. Unlike Henson, the error in
this case was not revealed during the trial. Appellant did not
refuse an opportunity to correct the defect.
In Hummer v. Commonwealth, 122 Va. 826, 94 S.E. 157 (1917),
the Supreme Court recognized the error of a defendant being
convicted of a "higher offense." The defendant was indicted and
arraigned for unlawful wounding. See id. at 827, 94 S.E. at
157. When the clerk read the indictments to the jury, the trial
court permitted the clerk to read the section of the Code which
included the definition of malicious wounding. See id. at
827-28, 94 S.E. at 157-58. The trial court refused an
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instruction stating that the defendant could not be convicted of
malicious wounding. See id. at 828, 94 S.E. at 158. The
Supreme Court opined that the error was not harmless. See id.
at 829, 94 S.E. at 158. "Both prisoners were convicted by the
jury under instructions which permitted them to find the
prisoners guilty of a higher offense, and one carrying a higher
maximum and minimum punishment, than that with which they were
charged." Id.
In this case, appellant failed to timely object to the
conviction of malicious wounding and there was a common
misunderstanding of all involved as to the offense charged, but
we cannot escape the reality that appellant was sentenced for a
higher offense than that with which he was charged. He was
indicted for unlawful wounding, pled not guilty to unlawful
wounding, and was found guilty of unlawful wounding. However,
appellant was sentenced for malicious wounding. We cannot say
the written conviction order was a clerical error because the
indictment and arraignment belie the trial court's mention of
malicious wounding in its oral statement finding appellant
guilty. 3
3
The Attorney General filed a motion to correct a clerical
error in the court's conviction order, which found appellant
guilty of unlawful wounding. For the reasons stated in this
opinion, we deny the Commonwealth's motion.
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We, therefore, reverse appellant's sentencing for malicious
wounding and remand for sentencing for unlawful wounding.
Reversed and remanded.
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