Ronald D. McCray v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Lemons ∗
Argued at Richmond, Virginia
RONALD D. McCRAY
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1276-99-2 JUDGE JAMES W. BENTON, JR.
MARCH 21, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
William R. Shelton, Judge
William B. Bray for appellant.
(Mark L. Earley, Attorney General; Richard B.
Smith, Assistant Attorney General, on brief),
for appellee. Appellee submitting on brief.
This appeal arises from orders revoking suspended prison
sentences previously given to Ronald Donnell McCray. McCray
contends that his sentences for two felony larceny convictions
were void, rendering the trial judge's revocation of the suspended
sentences given pursuant to those convictions a nullity. He also
contends that the trial judge erred in revoking the suspended
sentence given to him for a possession of cocaine conviction
because that revocation occurred during the same proceeding in
∗
Justice Lemons participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
which the trial judge revoked the suspensions involving the
larceny sentences. For the reasons that follow, we reverse the
orders revoking the suspended sentences related to the larceny
convictions and dismiss those cases, and we affirm the revocation
of the suspended sentence in the case of possession of cocaine.
I.
On May 10, 1988, the trial judge entered judgment orders
convicting Ronald Donnell McCray of three felonies. The judge
convicted McCray for possession of cocaine and sentenced him to
ten years in prison with five years suspended. He also convicted
McCray for felony larceny, issuing a bad check in violation of
Code § 18.2-181, and sentenced him to twenty years in prison with
fifteen years suspended. On another felony larceny conviction for
issuing a bad check, the trial judge sentenced McCray to twenty
years in prison with all twenty years suspended. The larceny
sentences were to be served consecutive to the cocaine sentence.
Following a hearing on August 22, 1995, and a finding that
McCray violated the conditions of the suspended sentences, the
trial judge "revoke[d] the previously suspended sentence[s] [on
all three convictions] but resuspend[ed]" the sentences on
specified conditions. At a hearing on November 21, 1995, the
trial judge made a finding that McCray violated the conditions of
the 1995 "resuspen[sion]." The trial judge then "revoke[d] five
years of [the] previously suspended sentence on the charge of
possession of cocaine, but re-suspend[ed] two years under the same
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terms and conditions as previously set out." The judge ordered
McCray placed on supervised probation upon his release from
prison.
On March 30, 1999, at a hearing to determine whether McCray
had failed to comply with the conditions of his suspended
sentences, McCray's counsel stipulated that McCray committed the
charged infractions. He also informed the trial judge that the
1988 convictions for issuing bad checks "are Class 6 felonies" and
that the maximum sentence that should have been imposed was five
years for each charge. Nonetheless, the trial judge ruled as
follows:
It's the judgement of the Court . . .
[that] you have about 37 years remaining
here [and] that we're suspending 2 [years]
on your cocaine and 15 [years] on your
worthless checks, and 37 years in all. It's
the judgment of the Court that the suspended
time be revoked and that you be sentenced to
the penitentiary to serve all the suspended
time that you have remaining here. I will
again suspend all of that time that you have
here with the exception of three years.
Consistent with that ruling, the trial judge entered an order on
May 2, 1999, containing the following:
The Court SENTENCES the defendant to:
Incarceration . . . for the term of: 2 years
for Possession of Cocaine, 15 years for
Felony Worthless Check, CR88B-615-02 and, 20
years for Felony Worthless Check,
CR88B-615-03. The total sentence imposed is
37 years.
The sentence shall run consecutively with
all other sentences.
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The Court SUSPENDS 14 years of the Felony
worthless Check, CR88-615-02 sentence, and
20 years of the Felony Worthless Check,
CR88B-615-03 sentence, for a total
suspension of 34 years . . . .
McCray appeals from this order.
II.
The Commonwealth concedes that, when McCray was convicted
in 1988 on two felony bad check charges, Code § 18.2-181
provided that such a violation was a Class 6 felony and that the
maximum sentence the trial judge could have imposed for such a
conviction was five years in prison. See Code § 18.2-10(F).
Accordingly, the Commonwealth agrees that after the trial judge
sentenced McCray in 1988 to serve five years in prison on one
bad check conviction, the trial judge could not have later
revoked any portion of that sentence.
The Commonwealth also agrees that the trial judge did not
specify either a period of probation or suspension when
suspending all of the sentence on the second bad check charge.
Thus, for any sufficient cause occurring within five years from
1988, the trial judge had a maximum of one year after that five
year period within which he could have revoked McCray's
suspended sentence on that charge. See Code § 19.2-306. The
trial judge did not do so.
The Supreme Court has ruled that "a sentence in excess of
one proscribed by law is not void ab initio because of the
excess, but is good insofar as the power of the court extends,
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and is invalid only as to the excess." Deagle v. Commonwealth,
214 Va. 304, 305, 199 S.E.2d 509, 511 (1973). Applying this
principle, we hold that the trial judge erred in 1988 by
imposing a prison sentence in excess of five years on each of
the bad check convictions and that, therefore, the trial judge
had no authority on May 2, 1999 to revoke suspended sentences
with respect to the bad check convictions and incarcerate McCray
on those revocations.
III.
At the hearing on March 30, 1999, McCray stipulated that he
had violated the terms of the suspended sentence. Moreover, the
record establishes that the suspended sentence for the
possession of cocaine conviction was then still in effect.
Although McCray did not raise any objection at trial
concerning the revocation of the sentence for possession of
cocaine, he contends on appeal that the trial judge also erred
in revoking that sentence because it was done during "a unitary
revocation procedure based upon a Show Cause for violating both
void and valid sentences." Absent an objection at trial, we are
precluded by Rule 5A:18 from considering this issue.
Furthermore, the record does not affirmatively show that a
miscarriage of justice has occurred. See Mounce v.
Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987).
McCray stipulated that he violated the conditions upon which the
suspended sentence for possession of cocaine was imposed.
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Furthermore, the record clearly established that at each
proceeding since 1988, the trial judge separated and tailored
each revocation to each conviction. Indeed, the order appealed
from specifies the precise portion of the revoked suspended
sentence attributable to the possession of cocaine conviction.
Accordingly, we affirm this portion of the order.
Affirmed, in part and
reversed and dismissed,
in part.
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