Woodard v. Commonwealth ( 2014 )

PRESENT: All the Justices
TIMOTHY WOODARD
OPINION BY
v. Record No. 130854 JUSTICE LEROY F. MILLETTE, JR.
February 27, 2014
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we consider whether the Court of Appeals of
Virginia erred when, after reversing a felony murder conviction
as not being supported by sufficient evidence, it refused to
remand to the circuit court for resentencing two felony drug
convictions, one of which supplied the underlying basis for the
felony murder conviction.
I. Facts and Proceedings
Timothy Woodard was separately indicted and charged with
(1) felony possession of 3,4-Methylenedioxymethamphetamine
("MDMA") with the intent to distribute in violation of Code
§ 18.2-248, (2) felony sale of MDMA in violation of Code § 18.2-
248, and (3) felony murder in violation of Code § 18.2-33.
Woodard pled not guilty to the indictments and waived a jury
trial. After hearing the evidence and the arguments of counsel,
the circuit court found Woodard guilty of all three felony
offenses in the indictments. The felony murder conviction was
based upon the victim's death caused by ingesting the MDMA
Woodard sold to the victim.
During the sentencing hearing, the Commonwealth and Woodard
disputed the appropriate sentencing guidelines. Woodard's
contention was that the circuit court should consider sentencing
guidelines based upon the felony sale of MDMA conviction as the
primary offense. This would result in a lower set of guidelines
than the Commonwealth's proposed guidelines that utilized the
felony murder conviction as the primary offense.
Although the circuit court accepted the sentencing
guidelines submitted by the Commonwealth, the court acknowledged
Woodard's proposed sentencing guidelines while making its
sentencing determinations. The court stated that the sentences
it imposed deviated in a downward direction from the guidelines
submitted by the Commonwealth, and deviated in an upward
direction from the guidelines submitted by Woodard. The court
noted that the particular facts of the case warranted deviating
from both sets of sentencing guidelines.
The circuit court sentenced Woodard to (1) twenty years
with twelve years suspended for the felony conviction for
possession of MDMA with the intent to distribute, (2) five years
with three years suspended for the felony conviction for sale of
MDMA, and (3) ten years with six years suspended for the felony
murder conviction.
Woodard timely appealed to the Court of Appeals. Woodard
assigned error only to the circuit court's determination that
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the evidence was sufficient to support the felony murder
conviction. 1 A single judge of the Court of Appeals, by a per
curiam order, denied Woodard's appeal. Woodard v. Commonwealth,
Record No. 2048-11-3 (May 9, 2012). Upon Woodard's demand for
panel review pursuant to Rule 5A:15A(a), a three judge panel of
the Court of Appeals granted Woodard's appeal. Woodard v.
Commonwealth, Record No. 2048-11-3 (Sept. 25, 2012).
In both Woodard's Petition for Appeal and Brief of
Appellant submitted to the Court of Appeals, a section titled
"Conclusion and Relief Sought" was included. As part of that
section in each pleading, Woodard requested as additional relief
that the Court of Appeals remand the case to the circuit court
for resentencing of Woodard's felony drug convictions.
The Court of Appeals reversed Woodard's felony murder
conviction. Woodard v. Commonwealth, 61 Va. App. 567, 576, 739
S.E.2d 220, 224 (2013). However, the Court of Appeals refused
to remand the case to the circuit court for resentencing of
Woodard's two felony drug convictions on the basis that such
relief was outside of the scope of Woodard's assignment of
error. Id. at 576 n.5, 739 S.E.2d at 224 n.5.
1
Woodard did not assign error to the circuit court's
rejection of his proposed sentencing guidelines that utilized
the felony sale of MDMA conviction, rather than the felony
murder conviction, as the primary offense.
3
Woodard timely filed a petition for appeal with this Court.
This appeal presents one assignment of error:
1. The Court of Appeals erred by not remanding the two
remaining convictions . . . for a new sentencing
proceeding, after having reversed and dismissed the felony
murder conviction.
II. Discussion
A. Standard of Review
"[O]nce a court has entered a judgment of conviction of a
crime, the question of the penalty to be imposed is entirely
within the province of the [General Assembly], and the court has
no inherent authority to depart from the range of punishment
legislatively prescribed." Starrs v. Commonwealth, 287 Va. 1,
9, 752 S.E.2d 812, ___ (2013). However, within that range of
punishment, a sentencing court has inherent discretion to impose
the punishment it deems appropriate because "[u]nder our system,
the assessment of punishment is a function of the judicial
branch of government." Hinton v. Commonwealth, 219 Va. 492,
496, 247 S.E.2d 704, 706 (1978). A court's assessment of
punishment, when the sentence "does not exceed the maximum
sentence allowed by statute," is reviewed for an abuse of
discretion. Rawls v. Commonwealth, 272 Va. 334, 351, 634 S.E.2d
697, 706 (2006).
To the extent we interpret a statute or the Rules of the
Supreme Court, these are questions of law that we review de
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novo. Findlay v. Commonwealth, 287 Va. 111, 114, 752 S.E.2d
868, ___ (2013); Jay v. Commonwealth, 275 Va. 510, 517, 659
S.E.2d 311, 315 (2008).
B. Woodard's Assignments of Error
The parties dispute whether Woodard's single assignment of
error to this Court is sufficient under Rule 5:17(c)(1). We
hold that Woodard's assignment of error to this Court is
sufficient. See Findlay, 287 Va. at 116, 752 S.E.2d at ___.
The parties also dispute whether resentencing relief fell
within the scope of Woodard's single assignment of error to the
Court of Appeals. We assume without deciding that resentencing
relief fell within the scope of Woodard's single assignment of
error to the Court of Appeals. See Rule 5A:12(c)(1); see, e.g.,
Commonwealth v. Fairbrook Bus. Park Assocs., 244 Va. 99, 105,
418 S.E.2d 874, 878 (1992) (addressing issues within the scope
of an assignment of error, and not reaching issues beyond the
scope of the assignments of error).
C. Whether the Circuit Court Abused Its Discretion in Imposing
Woodard's Sentences
The circuit court did not abuse its discretion when
imposing Woodard's sentences for his three convictions. Each
conviction for a separate felony offense received a separate
sentence. The circuit court's soliloquy at the sentencing
hearing showed that the court considered each felony offense
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separately when deciding the appropriate sentence. And each
sentence fell within the range of permissible punishment
prescribed by the General Assembly. See Code §§ 18.2-33; 18.2-
248. Woodard does not otherwise challenge the validity of his
sentences in and of themselves, and we will not further assess
the correctness of those sentences.
D. Whether the Discretionary Sentencing Guidelines Present a
Basis for Remanding the Case for Resentencing
Woodard argues that the case should be remanded to the
circuit court for resentencing because, during such a
resentencing proceeding, the sentencing guidelines will be
different than during the first sentencing hearing. This
argument misapprehends the discretionary nature of the
sentencing guidelines.
The General Assembly created within the judicial branch the
Virginia Criminal Sentencing Commission. Code § 17.1-800. The
Commission "develop[s] discretionary sentencing guidelines" to
help achieve the General Assembly's policy goals in punishing
and deterring convicted criminals. Code § 17.1-801. The
Commission's sentencing guidelines are presented to a trial
court in all felony cases not involving a Class 1 felony. Code
§ 19.2-298.01(A).
The Commission's sentencing guidelines "are discretionary,
rather than mandatory." West v. Director, Dep't of Corr., 273
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Va. 56, 65, 639 S.E.2d 190, 196 (2007). We underscored this
point in the context of a Strickland ineffective assistance of
counsel claim at issue in West. We held that a counsel's
deficient performance, resulting in a defendant being convicted
of two felonies rather than one, did not prejudice the defendant
to the extent that the two convictions resulted in "an increased
range of punishment under the sentencing guidelines." Id. at
63-65, 639 S.E.2d at 195-96. Prejudice did not exist because
the sentencing guidelines are purely discretionary. Id. at 65,
639 S.E.2d at 196. We further concluded that, under Code
§ 19.2-298.01(F), 2 "the fact that the sentencing guidelines in
West's case may have been different had he been convicted only
of one, instead of two felonies," could not provide West "any
basis for post-conviction relief." Id.
Applying those principles, we hold that Woodard is not
entitled to seek relief through a new sentencing proceeding
because of the fact that the sentencing guidelines with a felony
murder conviction would be different than the sentencing
guidelines without a felony murder conviction. See Code § 19.2-
298.01(F); West, 273 Va. at 65, 639 S.E.2d at 196. Those
guidelines are discretionary and are not binding on the circuit
2
"The failure to follow any or all of the provisions of
this section or the failure to follow any or all of the
provisions of this section in the prescribed manner shall not be
reviewable on appeal or the basis of any other post-conviction
relief." Code § 19.2-298.01(F).
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court's determination of the appropriate sentence. Indeed, the
circuit court expressly noted that it was deviating from the
sentencing guidelines—both the higher range of punishment from
the Commonwealth's accepted guidelines and the lower range of
punishment from Woodard's rejected guidelines—in light of the
particular facts of the case before it.
III. Conclusion
The circuit court did not abuse its discretion. Woodard
suffered no reviewable injury from the fact that the sentencing
guidelines would have been different had Woodard not been
convicted of felony murder at the time the circuit court
sentenced Woodard for his felony drug convictions. Therefore,
the Court of Appeals did not err, after reversing Woodard's
felony murder conviction, in refusing to remand Woodard's two
felony drug convictions to the circuit court for resentencing.
Accordingly, we will affirm the judgment of the Court of
Appeals.
Affirmed.
JUSTICE McCLANAHAN, concurring.
I agree with the majority that the Court of Appeals did not
err in refusing to remand Woodard’s case for resentencing of his
two remaining drug convictions. However, I believe the Court of
Appeals correctly determined that the remand and resentencing
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issue was not properly before it, and I would affirm the
decision rendered by the Court of Appeals without reaching the
merits of Woodard’s claim.
In his petition to the Court of Appeals, Woodard included
only one assignment of error challenging the sufficiency of the
evidence supporting his felony murder conviction. He did not
assign error to the circuit court’s use of the felony murder
sentencing guidelines.
Under Rule 5A:12(c)(1)(i), “[o]nly assignments of error
assigned in the petition for appeal will be noticed by [the
Court of Appeals].” In Amin v. County of Henrico, 286 Va. 231,
235, 749 S.E.2d 169, 170 (2013) (emphasis added), we interpreted
this requirement and stated that “[o]rdinarily when a party
fails to comply with Rule 5A:12, the Court of Appeals may refuse
to consider any assignment of error that is . . . not properly
included in the petition for appeal.” * Because Woodard failed to
assign error to the circuit court’s use of the felony murder
sentencing guidelines, the Court of Appeals did not err in
declining to consider that issue.
*
The only exception to this rule that we have recognized
applies to judgments that are void ab initio. See Singh v.
Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001). Woodard
does not argue here that the circuit court’s judgment is void ab
initio.
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