Latasha Michelle Gordon v. Commonwealth of Virginia
61 Va. App. 682
| Va. Ct. App. | 2013Background
- Gordon lived with Harrison Veney in Richmond County; on Sept. 3, 2011, an argument led her to cut Harrison and his brother Columbus Veney with a knife.
- Law enforcement responders found Gordon had absconded with Harrison’s cellular phone.
- The trial court convicted Gordon on two counts of unlawful wounding and one count of petit larceny after a bench trial.
- At sentencing, the Commonwealth urged ten-year terms for each unlawful-wounding count, with varying suspensions; Gordon requested an active sentence at the guideline midpoint.
- The court sentenced ten years for each unlawful-wounding count, with partial suspensions, and ordered consecutive terms, resulting in a total active sentence of 1 year 6 months; the petit larceny sentence ran concurrently.
- The court later remanded the unlawful-wounding sentences for resentencing, holding the ten-year terms on each count exceeded the statutory maximum for a Class 6 felony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ten-year sentences for two unlawful-wounding convictions violate the statutory maximum. | Gordon contends each ten-year term exceeds the five-year maximum. | The Commonwealth argues the error can be corrected by adjusting the minutes/removing the excess. | Yes; sentences exceed the five-year maximum and are void ab initio; remand for resentencing. |
| What is the proper remedy for the invalid sentences? | Remand for retrial on both counts. | Remand not necessary; excess can be reduced without retrial. | Remand for resentencing only (no retrial) because the error affects the sentence, not the conviction. |
| Does the ends-of-justice exception to Rule 5A:18 allow consideration of an otherwise unpreserved sentencing error? | Rule 5A:18 should bar review unless ends-of-justice applies. | Ends-of-justice justification supports addressing the void sentences. | Yes; ends-of-justice exception applies to permit consideration of the improper sentences. |
Key Cases Cited
- Rawls v. Commonwealth, 278 Va. 213 (2008) (sentence in violation of statutory range is void ab initio; entitles defendant to new sentencing hearing)
- Dargan v. Commonwealth, 27 Va. App. 495 (1998) (en banc; excess portion may be struck, not remand for new trial; depends on context)
- Hines v. Commonwealth, 59 Va. App. 567 (2012) (remand not needed when only available sentence is specified by statute; but not controlling here)
- Woodward v. Commonwealth, 16 Va. App. 672 (1993) (remand permissible to correct sentencing errors without retrial)
- Anthony v. Kasey, 83 Va. 338 (1887) (early authority on void vs. voidable judgments)