William A. Derrick v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued by teleconference
WILLIAM A. DERRICK
MEMORANDUM OPINION * BY
v. Record No. 2295-00-1 JUDGE ROBERT P. FRANK
JUNE 26, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Edward W. Hanson, Jr., Judge
Ben Pavek, Assistant Public Defender (Office
of the Public Defender, on brief), for
appellant.
Phillip C. Hollowell, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
William A. Derrick (appellant) was convicted by a jury of
driving while intoxicated, third or subsequent offense, a felony
in violation of Code § 18.2-266. 1 The jury recommended a sentence
of fifteen months. Upon receiving a pre-sentence report and
hearing argument, the trial court sentenced appellant to fifteen
months in jail with four months suspended, conditioned upon good
behavior for two years, supervised probation and successful
completion of the Diversion Center Program. On appeal, appellant
contends the trial court abused its discretion in not suspending
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant does not appeal the conviction.
the entire period of incarceration. For the reasons stated
herein, we find no abuse of discretion and affirm the sentence.
In this Court's order granting appellant's petition for
appeal, a judge of this Court directed the parties to address
whether the trial court had the authority to sentence appellant to
fifteen months in jail and whether Rule 5A:18 bars review of the
issue.
In his brief addressing those issues, appellant conceded the
trial court had the authority to sentence a felon to jail.
Appellant further stated that appellant would "prefer a local jail
sentence from being incarcerated in a state penitentiary." 2
Furthermore, at trial, appellant did not object to the
fifteen-month jail sentence. Indeed, he does not object to it on
appeal.
"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
2
Code § 18.2-15 states:
Imprisonment for conviction of a felony
shall be by confinement in a state
correctional facility, unless in Class 5 and
Class 6 felonies the jury or court trying
the case without a jury fixes the punishment
at confinement in jail. Imprisonment for
conviction of a misdemeanor shall be by
confinement in jail.
In this case, appellant was convicted of a Class 6 felony.
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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)).
Legette v. Commonwealth, 33 Va. App. 221, 224, 532 S.E.2d 353, 354
(2000). We see no reason to invoke the "ends of justice"
exception and, therefore, do not address this issue on the merits.
We next address appellant's contention that the trial court
abused its discretion in not suspending his entire sentence. At
sentencing, appellant argued his entire sentence should be
suspended because he was accepted into the Diversion Program of
the Department of Corrections. After the trial court sentenced
appellant to fifteen months with four months suspended, the trial
court stated, "This is your last chance. Maybe you've learned
something." Appellant's counsel replied, "I certainly hope so
judge; and I appreciate the court's discretion."
We find that the trial court did not abuse its discretion in
not suspending the entire sentence.
"[W]hen a statute prescribes a maximum imprisonment penalty
and the sentence does not exceed that maximum, the sentence will
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not be overturned as being an abuse of discretion." Abdo v.
Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977) (citing
Perry v. Commonwealth, 208 Va. 283, 156 S.E.2d 566 (1967)).
The first clause of Code § 19.2-303 gives broad power to the
trial court to determine the conditions of a suspended sentence.
Code § 19.2-303. Sentencing statutes "confer upon trial courts
'wide latitude' and much 'discretion in matters of suspension and
probation . . . to provide a remedial tool . . . in the
rehabilitation of criminals' and, to that end, 'should be
liberally construed.'" Deal v. Commonwealth, 15 Va. App. 157,
160, 421 S.E.2d 897, 899 (1992) (citations omitted). "Sentencing
statutes are to be liberally construed to give the trial court
broad discretion." Bazemore v. Commonwealth, 25 Va. App. 466,
468, 489 S.E.2d 254, 255 (1997) (citing Deal, 15 Va. App. at 160,
421 S.E.2d at 899).
The trial court ultimately suspended four months of the
fifteen-month sentence fixed by the jury. The evidence before the
trial court was that appellant had been convicted of driving while
intoxicated on five prior occasions. The evidence also revealed
that when appellant got out of his vehicle, he was stumbling and
had to hold onto the door for support. His speech was slurred,
and his eyes were red and glassy.
At sentencing, appellant testified he was regularly going to
Alcoholics Anonymous meetings and attends counseling. Appellant
admitted he had been convicted of driving under the influence in
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New York and, as a result, was sentenced to one year in jail and
attended alcohol rehabilitation programs in New York. Appellant
further admitted he had relapsed.
Based on appellant's six driving while intoxicated
convictions, the trial court would not have abused its discretion
in suspending none of the fifteen-month sentence. Therefore, we
hold that requiring appellant to serve eleven months is not an
abuse of discretion. Appellant's sentence is, therefore,
affirmed.
Affirmed.
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Benton, J., concurring and dissenting.
I would affirm the conviction. I would remand for
resentencing, however.
The jury convicted William A. Derrick of the Class 6 felony
of driving a motor vehicle while under the influence of alcohol
after having previously been convicted of the same offense on
two or more occasions. See Code §§ 18.2-266 and 18.2-270. "The
authorized punishments for . . . Class 6 felonies [are] a term
of imprisonment of not less than one year nor more than five
years, or in the discretion of the jury or the court trying the
case without a jury, confinement in jail for not more than
twelve months and a fine of not more than $2,500, either or
both." Code § 18.2-10. Consistent with the provisions of this
statute, Code § 18.2-15 provides, in pertinent part, that
"[i]mprisonment for conviction of a felony shall be by
confinement in a state correctional facility, unless in Class 5
and Class 6 felonies the jury or court trying the case without a
jury fixes the punishment at confinement in jail."
The jury fixed Derrick's punishment at "a specific term of
imprisonment of fifteen months." At the sentencing hearing, the
trial judge said he would "sentence [Derrick] -- as recommended
by the jury on [the] conviction of driving under the influence
third or subsequent offense, . . . to fifteen months of
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incarceration" and suspend four months on various prescribed
conditions. The final conviction order recites, however, that
the sentence is "[i]ncarceration in the Jail of this City for
the term of . . . 15 months."
Although Derrick acknowledges on brief that he "does prefer
a local jail sentence" and the Commonwealth asserts "[t]he trial
court did not exceed its authority by sentencing [Derrick] to
fifteen months confinement in the city jail," I believe the
final order is facially at odds with the trial judge's oral
pronouncement of imposing the sentence "as recommended by the
jury" and with Code §§ 18.2-10 and 18.2-15. Obviously, if the
trial judge wished to sentence Derrick to a term in the city
jail, he had the authority to modify the sentence the jury
fixed, see Batts v. Commonwealth, 30 Va. App. 15-16, 515 S.E.2d
314-15 (1999), and impose a confinement in the jail for a term
not to exceed twelve months. Code § 18.2-10.
Although in other cases we have construed sentencing orders
to comply with the law, see Wilson v. Commonwealth, 23 Va. App.
318, 326, 477 S.E.2d 7, 10 (1996), in this case an ambiguity
exists. As drafted, the final order represents either a
clerical error or "[a] sentence in excess of one proscribed by
law . . . [, which] is good insofar as the power of the court
extends, and is invalid . . . as to the excess." Deagle v.
Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 511 (1973). In
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either event, the conviction order violates the statutory
limitation on the amount of time of confinement in jail.
For these reasons, I would remand for resentencing.
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