COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Humphreys, Decker and Russell
Argued at Virginia Beach, Virginia
RAMON MONTRELL WILLIAMS
MEMORANDUM OPINION* BY
v. Record No. 1978-16-1 JUDGE WESLEY G. RUSSELL, JR.
SEPTEMBER 5, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Junius P. Fulton, III, Judge
J. Barry McCracken, Assistant Public Defender, for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Pursuant to separate plea agreements, Ramon Montrell Williams, appellant, pled guilty to
possession of ammunition by a convicted felon, forgery of a public record, malicious wounding,
assault and battery, use of a firearm in the commission of a felony, and two counts of possession of
a firearm by a convicted felon. On appeal, he claims the trial court abused its discretion in
sentencing him to three years of active incarceration on the malicious wounding charge. We
disagree and affirm.
BACKGROUND
There is no dispute that Williams committed the offenses for which he was convicted. He
pled guilty in the trial court and, to his credit, explicitly accepted responsibility for his actions.
Accordingly, we need not recite all of the facts regarding his various offenses. Rather, because he
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
challenges only his sentence on appeal, we recite only those facts germane to his appellate
argument.
I. September 2, 2015 Indictment
On September 2, 2015, the grand jury of the City of Norfolk returned an indictment
charging Williams with the possession of ammunition after previously having been convicted of a
felony in violation of Code § 18.2-308.2. The Commonwealth and Williams engaged in plea
negotiations regarding the charge and, ultimately, reached an agreed resolution. Williams agreed to
plead guilty, and, in return, the Commonwealth agreed to jointly request a presentence report. In the
written plea agreement, which was signed by Williams, his attorney, and counsel for the
Commonwealth, each party “reserve[d] the right to argue the appropriate disposition of th[is] case[]
at sentencing.”
Consistent with the practice in the Norfolk Circuit Court, Williams was presented with a
form entitled “Advice to Defendants Pleading Guilty.” The form confirms the charge or charges
that an accused faces, the charges to which he has agreed to plead guilty, that he has had an
opportunity to fully discuss the potential plea with counsel, that he understands the plea agreement,
and that he is “freely and voluntarily” pleading guilty to the listed offense(s).
Among other things, the form also informs a defendant of the maximum sentence for the
crimes charged. In Williams’ case regarding his possession of ammunition after having been
previously been convicted of a felony, the form indicated that the maximum amount of
incarceration he faced was five years.
The form also advises a defendant that, by pleading guilty, he is waiving certain rights.
Specifically, the form notes that a guilty plea waives a defendant’s “right to a jury trial,” “right to
refuse to testify,” “right to have the witnesses against [him] testify in open court,” “right to defend
[himself],” and “right to appeal the decision of the court.” The form makes clear that, by pleading
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guilty, a defendant “waive[s] all preceding non-jurisdictional defects, including constitutional
claims.”
Williams initialed each page of the form, and signed it, indicating that he had “read every
item in this document, line by line, or if [he was unable] to read, [his] attorney had read it to [him],
line by line.” Williams also acknowledged that he fully understood the contents of the form. The
form was admitted as Defense Exhibit 1 at the September 24, 2015 guilty plea hearing.
In addition to being presented with the written plea agreement and the advice form at the
guilty plea hearing, the trial court was presented with a summary of the evidence. It then conducted
a guilty plea colloquy with Williams. Among other things, the trial court confirmed that Williams
had read and understood the advice form, that he had reviewed it with his attorney, and that
Williams was pleading guilty to the charge because he was, in fact, guilty of the charge. Based on
the evidence presented, including the colloquy, the trial court accepted the guilty plea, ordered a
presentence report, and set a date for the sentencing hearing.
II. March 16, 2016 Indictments
A. November 20, 2015 Offenses
On March 16, 2016, the grand jury of the City of Norfolk returned indictments charging
that, on November 20, 2015, Williams maliciously wounded Raymond Watkins with the intent to
maim, disfigure, disable or kill him in violation of Code § 18.2-51.2 and that Williams’ actions
caused Watkins to be severely injured and to suffer permanent and significant physical impairment,
used a firearm in the commission of a felony in violation of Code § 18.2-53.1,1 committed two
counts of possessing a firearm after having been previously convicted of a violent felony in
1
Williams previously had been convicted of use of a firearm in the commission of a
felony, and thus, was subject to the enhanced penalty provisions of Code § 18.2-53.1 if convicted
of this offense.
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violation of Code § 18.2-308.2, assaulted and battered Perry Sellers in violation of Code § 18.2-57,
and brandished a firearm in violation of Code § 18.2-282.
B. January 5, 2016 Offenses
On March 16, 2016, the grand jury of the City of Norfolk also returned indictments charging
that, on January 5, 2016, Williams forged a public record in violation of Code § 18.2-168 and
unlawfully used the identifying information of another person to avoid summons, arrest or
prosecution or to impede a criminal investigation in violation of Code § 18.2-186.3(B1).
The Commonwealth and Williams engaged in plea negotiations regarding the March 16,
2016 indictments and, ultimately, reached an agreed resolution. Williams agreed to plead guilty to
one count of assault and battery in violation of Code § 18.2-57, a reduced charge of malicious
wounding in violation of Code § 18.2-51, one count of use of a firearm in the commission of a
felony in violation of Code § 18.2-53.1 that would be considered a first offense, two counts of
possession of a firearm after previously having been convicted of a violent felony in violation of
Code § 18.2-308.2, and forgery of a public record in violation of Code § 18.2-168. In addition to
reducing the aggravated malicious wounding charge and the use of a firearm charge, the
Commonwealth agreed to move to nolle prosequi the brandishing and providing false information
charges. As a condition of the plea agreement, the trial court was required to request a presentence
report. In addition to these terms, the written plea agreement, which was signed by Williams, his
attorney, and counsel for the Commonwealth, provided that “[t]here is no agreement on the
defendant’s sentence.”
Consistent with the practice in the Norfolk Circuit Court, Williams again was presented with
a form entitled “Advice to Defendants Pleading Guilty.” As before, the form confirmed the charges
against Williams, the potential sentences he faced, his understanding of the situation, his
consultation with counsel, his waiver of certain rights, and that he was guilty of the charges to
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which he was pleading guilty. Williams initialed each page of the form, and signed it, indicating
that he had “read every item in this document, line by line, or if [he was unable] to read, [his]
attorney had read it to [him], line by line.” The form was admitted as Defense Exhibit 1 at the
July 27, 2016 guilty plea hearing.
In addition to being presented with the written plea agreement and the advice form at the
guilty plea hearing, the trial court was presented with a summary of the evidence. It then conducted
a guilty plea colloquy with Williams. Among other things, the trial court confirmed that Williams
had read and understood the advice form, that he had reviewed it with his attorney, and that
Williams was pleading guilty to the charges because he was, in fact, guilty of the charges.
Based on the evidence presented, including the colloquy, the trial court accepted the guilty
pleas, ordered a presentence report, and set a date for the sentencing hearing. Although the trial
court noted that the sentencing proceedings were to be considered separate proceedings, it set the
sentencing hearing for the six convictions stemming from the March 16, 2016 indictments for the
same day and time as the sentencing hearing for the conviction stemming from the September 2,
2015 indictment.
III. Sentencing Hearing
At the sentencing hearing, the trial court received the relevant sentencing guidelines
worksheet for the offenses. As calculated, the guidelines worksheet reflected that Williams was
guilty of use of a firearm in the commission of a felony as a second offense as opposed to the
reduced charge to which he had pled, namely, use of a firearm in the commission of a felony as a
first offense. Based on the worksheets, the guidelines recommendation for the offenses, which were
affected by the mandatory minimum sentences for the use of a firearm in the commission of a
felony and the two convictions for possession of a firearm by a person who has previously been
convicted of a violent felony, resulted in a sentencing range of fifteen years to fifteen years, ten
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months, with a midpoint of fifteen years. The Commonwealth acknowledged that, if the guidelines
had been calculated using the crime to which Williams actually had pled– use of a firearm in the
commission of a felony as a first offense– the midpoint of the guidelines range would change to
thirteen years, three months, but the high end of the range would remain fifteen years, ten months.
The trial court received a victim impact statement, a written statement from Williams, and
heard the testimony of Williams’ sister. She testified that Williams had long had problems with
alcohol and bipolar disorder. Williams also made a statement on his own behalf.
The Commonwealth argued for a significant sentence in excess of the guidelines. In
support, the Commonwealth noted a lengthy criminal history, dating back to when Williams was
committed to the Department of Juvenile Justice. The Commonwealth stressed that Williams’
criminal history included other crimes of violence and involving firearms. Finally, the
Commonwealth noted that both sets of the instant offenses occurred when Williams was on bond
for yet additional charges.
Williams, recognizing that the mandatory minimum sentences required an active sentence of
thirteen years incarceration, asked the trial court only to impose a sentence of thirteen years
incarceration. In support of this position, Williams stressed the evidence of his having mental
health issues, that, if Williams served thirteen years, he would be in his forties when released, that,
as related by his counsel, Williams “is clearly a different individual than the individual I met when I
first represented him on the” ammunition charge, and that there was reason to believe that, despite
his plea to malicious wounding, the shooting of the victim in this case was an accident. Although
he argued for the thirteen-year sentence, Williams never argued that the longer sentence sought
by the Commonwealth was outrageous or represented something beyond the bounds of the trial
court’s discretion.
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Consistent with the mandatory minimum sentences required by the relevant statutes, the trial
court sentenced Williams to three years active incarceration on the use of a firearm in the
commission of a felony charge and five years on each count of possession of a firearm after having
been previously convicted of a violent felony (ten years total on the two counts). The trial court
sentenced Williams to five years incarceration on the possession of ammunition charge, five years
incarceration on the forgery of a public document charge, and twelve months in jail on the assault
and battery charge, but suspended the entirety of those sentences on conditions not germane to this
appeal. Finally, the trial court sentenced Williams to twenty years incarceration on the malicious
wounding charge, but suspended seventeen years of that sentence on conditions not germane to this
appeal. Accordingly, the term of active incarceration imposed by the trial court was sixteen
years, which was two months more than the high end of the range recommended by the
guidelines.2
On appeal, Williams challenges “the three year active period of confinement imposed for
the offense of malicious wounding.” He argues that the “trial court abused its discretion by
imposing a sentence which exceeded the mandatory minimum sentence of thirteen years”
required by the various firearm convictions. Thus, Williams contends that it was an abuse of
discretion for the trial court to sentence him to any period of active incarceration, even one day,
for his malicious shooting of another human being.
2
The trial court noted on the guidelines worksheet that the upward departure from the
recommended sentencing range was that Williams was on bond at the time he committed the
malicious wounding.
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ANALYSIS3
“We review [a] trial court’s sentence for abuse of discretion.” Johnson v.
Commonwealth, 63 Va. App. 175, 181, 755 S.E.2d 468, 471 (2014) (quoting Valentine v.
Commonwealth, 18 Va. App. 334, 339, 443 S.E.2d 445, 448 (1994)). The Supreme Court, in an
uninterrupted line of decisions, repeatedly has held that a trial court does not abuse its sentencing
discretion when it sentences a defendant within the statutory range that the General Assembly
has established for the offense or offenses. See, e.g., Alston v. Commonwealth, 274 Va. 759,
771-72, 652 S.E.2d 456, 463 (2007); Rawls v. Commonwealth, 272 Va. 334, 351, 634 S.E.2d
697, 706 (2006); Williams v. Commonwealth, 270 Va. 580, 584, 621 S.E.2d 98, 100 (2005);
Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). In 2016, the Supreme
Court reaffirmed this principle, explaining that
[a] Virginia trial court clearly acts within the scope of its
sentencing authority when it chooses a point within the permitted
statutory range at which to fix punishment. In cases where the
argument on appeal is simply a challenge to the duration of
imprisonment, we have consistently held that the sentencing
statutes define the outer boundaries of the bell-shaped curve of
reasonableness. Consequently, when a statute prescribes a
maximum imprisonment penalty and the sentence does not exceed
that maximum, the sentence will not be overturned as being an
abuse of discretion. In this respect, our view adheres to the general
proposition that once it is determined that a sentence is within the
limitations set forth in the statute under which it is imposed,
appellate review is at an end.
3
In all cases, we seek “the best and narrowest ground available” for resolving a case.
Armstead v. Commonwealth, 56 Va. App. 569, 576, 695 S.E.2d 561, 564 (2010). Given that
even Williams recognizes that the merits of his appellate argument repeatedly have been
addressed and rejected in the prior decisions of this Court and the Supreme Court, we conclude
that reaching the merits is the best and narrowest ground. See Abdo v. Commonwealth, 64
Va. App. 468, 473 n.1, 769 S.E.2d 677, 679 n.1 (2015) (finding that, in the appropriate
circumstances, resolving a case on the merits can represent the best and narrowest ground).
Accordingly, we do not reach the question of whether doing nothing more than arguing for a
lesser sentence is adequate to preserve an argument that a sentence within the statutory range is
so far beyond the pale as to constitute an abuse of discretion.
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Minh Duy Du v. Commonwealth, 292 Va. 555, 564-65, 790 S.E.2d 493, 499 (2016) (internal
quotation marks and citations omitted).
Williams acknowledges that this has been the consistent position of the Supreme Court,
but argues that “it is long past time to reconsider and discard the dated doctrine that a trial court’s
sentence will be presumed reasonable so long as it does not exceed a statutorily imposed
maximum.” In support of this argument, Williams first states that the first Supreme Court cases
that applied the principle involved jury verdicts, and thus, the “rule sprang from reluctance on
the part of the Virginia Supreme Court to second-guess jury verdicts” and should not be applied
to bench trials. Williams supplements this argument by asserting that Virginia is only one of ten
states to apply the rule with the other forty states “permit[ting] appellate review of the
reasonableness of sentencing whether or not it exceeds the maximum established by statute.”4
Whatever the relative merits of these arguments, our recognition of the appropriate role
of an intermediate appellate court precludes us from doing what Williams asks. “‘[W]e are
bound by decisions of the Supreme Court of Virginia and are without authority to overrule’
them.” Vay v. Commonwealth, 67 Va. App. 236, 258 n.6, 795 S.E.2d 495, 505 n.6 (2017)
(quoting Roane v. Roane, 12 Va. App. 989, 993, 407 S.E.2d 698, 700 (1991)). Thus, even if we
thought Williams’ arguments for overturning binding precedent had merit and that sentencing a
repeat violent offender to a term of active incarceration for maliciously shooting another human
4
In his review of the processes employed by other states, Williams notes that several
states have statutes that expressly authorize appellate courts to consider whether a term-of-years
sentence within the range set by the legislature for the offense can constitute an abuse of
discretion in a specific case. Virginia has no such statute. Because we assume that the General
Assembly is aware of the prior decisions of this Court and the Supreme Court, Washington v.
Commonwealth, 46 Va. App. 276, 281-82, 616 S.E.2d 774, 777 (2005) (en banc), we conclude
that the absence of such a Virginia statute represents the General Assembly’s agreement with the
existing case law.
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being could constitute an abuse of discretion, we lack the authority to grant Williams the relief
he seeks.5
CONCLUSION
In our system, the General Assembly has the power to set punishments for criminal
offenses. Whether specifically set penalties, ranges of penalties, or ranges of penalties that
include mandatory minimum penalties, the setting of the appropriate potential punishments is
wholly a legislative function. The role of the judicial branch is to evaluate individual cases and
offenders in order to discern the appropriate sentence for each offense from the menu of choices
provided by the General Assembly. In Virginia, the discretion to make these evaluations is
vested where the judicial branch comes into the closest contact with the offender, his crimes, and
the victims–the trial court. Unless a trial court strays from the range set by the General
Assembly, Virginia’s appellate courts will not second-guess the trial court’s exercise of
judgment regarding the appropriate punishment. For these reasons, the judgment of the trial
court in this matter is affirmed.
Affirmed.
5
Even if the Supreme Court cases did not compel this result, the prior decisions of this
Court would. We have held repeatedly that “we will not interfere with the sentence so long as it
was within the range set by the legislature for the particular crime of which the defendant was
convicted.” Scott v. Commonwealth, 58 Va. App. 35, 46, 707 S.E.2d 17, 23 (2011) (internal
quotation marks and citations omitted). Because prior panels of this Court have rejected
Williams’ argument in published opinions, we are bound to follow those opinions under the
inter-panel accord doctrine. Vay, 67 Va. App. at 257, 795 S.E.2d at 505.
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