Booker v. Commonwealth, 723 S.E.2d 621

Booker was convicted in Amelia County Circuit Court in 2003 of three counts of cocaine distribution, each 12 years, total 36 years; sentences vacated on appeal and remanded for resentencing before a new jury.
At resentencing, Booker moved to limit evidence; argued Code §19.2-295.1 allows only prior criminal history and victim impact statements in the case-in-chief, not a guilt-phase summary.
Circuit court directed the Commonwealth to submit a statement of facts and prohibited live witnesses in the Commonwealth’s case-in-chief at resentencing; court stated the jury cannot go blind.
Commonwealth’s statement of facts described three drug transactions (April 13, April 26, May 3, 2003) and referenced a fourth uncharged incident based on a videotape from trial; the April 26 conversation was included.
Booker objected to including the April 26 conversation and the fourth incident as unadjudicated acts not admissible at guilt; circuit court read the statement of facts to the resentencing jury.
Jury sentenced Booker to 5, 7, and 8 years on the three counts, totaling 20 years; on appeal, the issue was raised about the admissibility of the statement of facts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Code § 19.2-295.1 permits a new statement of facts at resentencing.	Booker argues no; Hills requires evidence used at resentencing come from the original trial.	Commonwealth argues the court may present circumstances so the jury is informed.	Abuse of discretion; not permitted without agreement; remand for resentencing.
Whether Hills allows a non-admitted, judge-created statement of facts to be read to a resentencing jury.	Hills controls; such a statement was not admitted at trial.	Hills permits consideration of necessary circumstances; may include evidence from trial.	Not permitted; Hills requires same evidence as presented at original trial absent agreement; reverse and remand.

Hills v. Commonwealth, 262 Va. 807 (2001) (permit evidence at resentencing for showing nature of offense; not to create new record)
Shifflett v. Commonwealth, 257 Va. 34 (1999) (evidence surrounding offense may be considered in noncapital sentencing under §19.2-295.1)
Fishback v. Commonwealth, 260 Va. 104 (2000) (relevant information context in sentencing, particular to parole issue; informs information scope)
Porter v. Commonwealth, 276 Va. 203 (2008) (abuse of discretion when court errs on law in sentencing)
Kozmina v. Commonwealth, 281 Va. 347 (2011) (statutory interpretation; plain language governs)