COMMONWEALTH of Virginia v. Rayshawn Torrell GREER
Record No. 1898-13-1
Court of Appeals of Virginia, Chesapeake
July 22, 2014
760 S.E.2d 132 | 561
Jeffrey C. Rountree for appellee.
Present: KELSEY, BEALES and DECKER, JJ.
DECKER, Judge.
Rayshawn Torrell Greer (the defendant) was convicted in a jury trial of possessing a firearm after having been convicted of a violent felony pursuant to
I. BACKGROUND
The defendant requested a jury trial after being charged with the offense of possession of a firearm by a convicted felon. At trial, the Commonwealth‘s evidence established that police came into contact with the defendant when he voluntarily agreed to speak with them during the course of a murder investigation. The defendant admitted to detectives that he possessed a firearm during the time period in which he shot and killed Frank Griffin. The defendant cooperated with law enforcement and turned the gun over to them. He admitted that he had previously been convicted of a felony and knew that he was not supposed to have a gun.2 Ultimately, the prosecutor concluded that the defendant acted in self-defense when Griffin brandished his own firearm. As a result, the defendant was not charged with murder.
At the defendant‘s trial on the firearm offense, the jury found him guilty of possession of a firearm by a convicted violent felon.3
In the sentencing phase of trial that immediately followed the determination of guilt, the court instructed the jury as follows:
You have found the defendant guilty of the crime of possessing or transporting a firearm after having been convicted of a violent felony.
Upon consideration of all the evidence you have heard, you shall fix the defendant‘s punishment at a specific term of imprisonment of five (5) years.
After additional deliberations, the jury submitted the following questions:
We can not [sic] all agree on 5 years but we agree on 2 years.
Do we have any other options or do we sit here till we agree on 5 years[?]
Is this the minimal sentance [sic] for this crime[?]
The court discussed the questions with counsel and observed, “[I]f the verdict is not unanimous, then the [c]ourt impanels another jury for sentencing. If the verdicts are unanimous, then it‘s over.” The court referenced prior decisions approving inconsistent jury verdicts in the guilt phase and implied that the jury could act similarly during the sentencing phase by refusing to impose the mandatory minimum of five years. The court noted, in contrast, that a judge lacks such authority.
The court did not answer the jury‘s questions but inquired whether the jury had reached a unanimous verdict, and the jury indicated that it had done so. The jury returned that verdict on the finding instruction provided but altered the language, “We ... fix [the defendant‘s] punishment at 5 years,” to reflect a two-year sentence. The foreperson crossed through the “5 years,” inserted “2 years” in its place, and initialed the change.
After the jury had been discharged, the prosecutor objected to the jury‘s verdict of a two-year sentence in light of the mandatory minimum of five years required by the statute.
Following sentencing, the prosecutor moved the trial court to set aside the jury‘s sentence and impanel a new jury to ascertain punishment. She argued that the jury did not agree on a punishment authorized by the legislature and averred that unless the defendant and the court agreed to imposition of the mandatory sentence of five years,
The trial court suggested that the mandatory minimum sentence conflicted with the legal principle that prevented the court from increasing a jury‘s sentencing verdict. The judge concluded that he “[did not] have a hung jury because they agreed on the punishment.” Further, the judge posited that he “[did not] know if [he] had the authority to impanel a different jury.” The court considered several existing appellate decisions on the issue but determined that none controlled. The judge ultimately concluded: “In my conscience I don‘t think I can say [that the jury was] wrong. They didn‘t give him enough time, but as a trial judge I [cannot] raise the sentence.”
This Commonwealth‘s appeal followed.
II. ANALYSIS
The Commonwealth argues that the trial court erred in imposing the two-year sentence instead of a five-year sentence required by the statute. The defendant responds that the jury, in essence, engaged in jury nullification during the sentencing phase by rejecting the mandatory minimum despite receiving proper instructions. He contends further that the trial court lacked authority to set aside the jury‘s sentencing verdict because applicable legal principles permitted the court only to shorten, not lengthen, the sentence fixed by the jury.
A trial court‘s assessment of punishment is reviewed under an abuse of discretion standard. Rawls v. Common-
Here, the parties agree that because the defendant had a prior conviction for robbery, an offense enumerated in
We hold that the jury‘s sentence of two years was erroneous and the trial court‘s imposition of that sentence was void ab initio. The judge was obligated to reject the jury‘s verdict and to impanel a new jury to determine punishment within the prescribed limits established by the legislature for the crime for which the jury had found the defendant guilty.
A. The Jury‘s Role and Sentencing Authority
The Sixth Amendment to the United States Constitution, applicable to the states through the Due Process Clause of the Fourteenth Amendment, guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Apprendi v. New Jersey, 530 U.S. 466, 476-77, 120 S.Ct. 2348, 2355-56, 147 L.Ed.2d 435 (2000) (quoting
“[T]rial by jury has been understood to require that ‘the truth of every accusation, whether in the shape of indictment [or] information, ... should afterwards be confirmed by the unanimous suffrage of twelve of [the defendant‘s] equals and neighbours. . . . ‘” Apprendi, 530 U.S. at 477, 120 S.Ct. at 2356 (fifth and sixth alterations in original) (quoting 4 William
Although judge and jury may both serve as finders of fact at trial, their duties and powers are not identical. In some contexts, the jury may exercise greater discretion. For example, under settled principles, a trial court may not render inconsistent verdicts in the guilt phase of a bench trial. Akers v. Commonwealth, 31 Va.App. 521, 528-32, 525 S.E.2d 13, 16-19 (2000); see also Cleveland v. Commonwealth, 38 Va.App. 199, 203-05, 562 S.E.2d 696, 698-99 (2002) (upholding a conviction where the trial judge expressly stated that he exercised lenity in dismissing one of several charges, thereby establishing that his acquittal of the defendant for driving while intoxicated was not inconsistent with his conviction of the defendant for another crime that required proof of driving while intoxicated as an element of the offense). Similarly, a jury‘s rendering of inconsistent verdicts in the guilt phase of
In interpreting the law governing inconsistent verdicts in the Commonwealth, we have observed that juries may reach such verdicts in the guilt phase “through mistake, compromise, or lenity, but in such instances it is ‘unclear whose ox has been gored,’ the government‘s or the defendant‘s.” Wolfe, 6 Va.App. at 648, 371 S.E.2d at 318 (quoting Powell, 469 U.S. at 65, 105 S.Ct. at 477). We have reasoned further:
“The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant‘s guilt.” . . . For this reason and the fact that the government is precluded from appealing the acquittal verdict, ... inconsistent verdicts [in the guilt phase of a jury trial] should not provide the basis for an appeal by the defendant.
In contrast, we are not aware of, and the parties have not cited, any Virginia appellate decision approving jury nullification in the sentencing phase of a trial. Indeed, our statutes and case law dictate a contrary conclusion. Once guilt has been determined, both judge and jury are constrained by the sentencing limits set by the legislature. “[N]othing in the United States or Virginia Constitution gives a defendant the right to be sentenced by a jury or solely by a jury.” Boyd v. Commonwealth, 28 Va.App. 537, 540, 507 S.E.2d 107, 109 (1998) (citing Fogg, 215 Va. at 166-67, 207 S.E.2d at 849-50). Further, “[t]he choice of sentencing procedures is a matter for legislative determination.” Duncan v. Commonwealth, 2 Va.App. 342, 344, 343 S.E.2d 392, 393 (1986).
The General Assembly has enacted numerous statutes outlining these sentencing procedures. Id. at 344, 343 S.E.2d at 393-94.
American juries ... exercised little, if any, discretionary control over criminal sentences.... The historic norm for the jury was to determine only guilt or innocence, leaving the court alone to fix the punishment consistent with legislatively mandated sentences. Later statutory reforms produced ... sentencing ranges within which trial judges could exercise ... discretion. Some states, like Virginia, authorized juries to ascertain a specific felony sentence within the statutory range, subject to the trial court‘s power of suspension.
Id. at 187, 647 S.E.2d at 524 (emphasis added) (citation omitted); see Apprendi, 530 U.S. at 481, 120 S.Ct. at 2358 (noting that the Court‘s “periodic recognition of judges’ broad discretion in sentencing ... has been regularly accompanied by the qualification that [such] discretion was bound by the range of sentencing options prescribed by the legislature” (emphasis added)); see also Walker v. Commonwealth, 25 Va.App. 50, 61, 486 S.E.2d 126, 132 (1997) (recognizing that in the mid-1990s, seven states in addition to Virginia allowed jury sentencing in noncapital cases). It has long been established, subject to limited statutory exception, that neither a judge nor a jury may fix a sentence exceeding the statutory range and that such a penalty is void as to the excess. See, e.g., Rawls v. Commonwealth (J.K. Rawls), 278 Va. 213, 218, 221, 683 S.E.2d 544, 547, 549 (2009); Allard, 24 Va.App. at 67, 480 S.E.2d at 144.
Consistent with its role in determining sentencing procedures and setting statutory ranges for crimes, Virginia‘s General Assembly also established mandatory minimum sentences for certain crimes. Lilly, 50 Va.App. at 187, 647 S.E.2d at 524. We have expressly held that in doing so,
[the legislature has] produced a floor below which no judge or jury [can] go. A trial court‘s authority to depart downward below a mandatory minimum is “nonexistent,” Mouberry v. Commonwealth, 39 Va.App. 576, 585, 575 S.E.2d 567,
Id. at 187-88, 647 S.E.2d at 524 (emphases added); see also Woodard, 287 Va. at 280, 754 S.E.2d at 311 (holding that in the context of a bench trial, ” ‘[o]nce a court has entered a judgment of conviction ..., the question of the penalty ... is entirely within the province of the [General Assembly]’ ” (final alteration in original) (quoting Starrs v. Commonwealth, 287 Va. 1, 9, 752 S.E.2d 812, 817 (2014))); cf. Schmitt v. Commonwealth, 262 Va. 127, 139-41, 547 S.E.2d 186, 195-96 (2001) (implicitly rejecting jury nullification in the sentencing phase by upholding a trial court‘s removal of a prospective juror who would not consider voting for the death penalty even if applicable instructions required her to do so).
These same principles prevent a defendant from “present[ing] argument about [a] mandatory minimum sentence during the guilt phase [of trial].” Walls, 38 Va.App. at 282, 563 S.E.2d at 388.
[T]he only purpose served by allowing ... [such] argument ... during the guilt phase [would be] to encourage the jury to acquit the defendant even though the evidence might prove him guilty. Allowing closing argument which encourages an acquittal irrespective of the evidence would, in essence, permit the jury to do in the guilt phase that which it lacks the authority to do in the sentencing phase—impose a sentence less than the statutory minimum—by finding the defendant not guilty.
Id. (second emphasis added), quoted with approval in Ford v. Commonwealth, 48 Va.App. 262, 269-70, 630 S.E.2d 332, 336 (2006); see Lilly, 50 Va.App. at 185-88, 647 S.E.2d at 523-24 (rejecting the defendant‘s claim that due process entitled her to a jury instruction about the mandatory minimum sentence in the guilt phase of trial).
Virginia law and the principles surrounding mandatory minimum sentences compel the conclusion that the jury
B. The Trial Court‘s Role Following the Jury‘s Sentencing Verdict and on Remand
The trial court recognized the problem associated with the fact that the jury‘s sentencing verdict was lower than the punishment of five years mandated by statute. However, because the verdict was unanimous, the court determined that it lacked authority to impanel a new jury to consider the defendant‘s sentence. The court focused on the language of
In deciding J.K. Rawls, the Supreme Court stated broadly:
[W]e adopt the following rule that is designed to ensure that all criminal defendants whose punishments have been fixed in violation of the statutorily prescribed ranges are treated uniformly without any speculation. We hold that a sentence imposed in violation of a prescribed statutory range of punishment is void ab initio because “the character of the judgment was not such as the [C]ourt had the power to render.” Thus, a criminal defendant in that situation is entitled to a new sentencing hearing. This common law rule of jurisprudence will eliminate the need for courts to resort to speculation when determining how a jury would have sentenced a criminal defendant had the jury been properly instructed or had the jury properly followed correct instructions. Applying this rule to Rawls, we hold that he is entitled to a new sentencing hearing on his second degree murder conviction....
Id. at 221, 683 S.E.2d at 549 (second alteration in original) (first, second, fourth, and fifth emphases added) (citations omitted) (quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)).5
The defendant correctly argues that the facts in J.K. Rawls are distinguishable from those in his case. Rawls’ sentence was above, rather than below, the statutorily prescribed range, and the sentencing error in J.K. Rawls resulted from faulty jury instructions rather than the jury‘s disregard of proper instructions. Id. at 215-16, 683 S.E.2d at 546. Despite these differences, however, the “common law rule of jurisprudence” set out by the Supreme Court was not limited to the
Further, we hold that in this case, under these circumstances, the proper procedure for correcting the error is to remand the case for a new sentencing hearing. See
Ordinarily, “a criminal defendant ... is entitled to a new sentencing hearing” where “a sentence [is] imposed in violation of a prescribed statutory range of punishment.” [J.K.] Rawls, 278 Va. at 221, 683 S.E.2d at 549. However, because [on the facts of this case] a term of three years imprisonment is the only available sentence for the trial court to impose, a new sentencing hearing is unnecessary. Accordingly, we need not remand for a new sentencing hearing.
Hines, 59 Va.App. at 581 n. 7, 721 S.E.2d at 798 n. 7 (first, second, and fourth alterations in original) (citation omitted), quoted with approval in Gordon v. Commonwealth, 61 Va.App. 682, 689, 739 S.E.2d 276, 279 (2013). Principles of judicial economy supported this result under the facts in Hines.
We conclude, however, that regardless of judicial economy, Hines is distinguishable and does not apply here. Hines involved a sentence that exceeded the applicable mandatory fixed sentence, and the defendant in Hines favored the sentence reduction. 59 Va.App. at 570, 721 S.E.2d at 793. In this case, by contrast, the trial court imposed a sentence below the mandatory five years, and the defendant opposes the Commonwealth‘s request for an increase of his sentence to the mandatory five years. Additionally, at oral argument, the defendant asserted that if the Court remands the case, resentencing by a jury is the only appropriate remedy. Current Virginia law gives the defendant a statutory right to be sentenced by a jury, and unless the General Assembly provides otherwise, that right takes precedence over principles of
III. CONCLUSION
The jury‘s sentence of two years was unlawful and the trial court‘s imposition of that sentence was void ab initio. The court was obligated to reject the jury‘s verdict and to impanel a new jury to determine punishment within the limits established by the legislature for the crime for which the original jury found the defendant guilty. Therefore, we reverse the trial court‘s ruling in part, vacate the defendant‘s sentence, and remand the case to the trial court for a new sentencing proceeding before a different jury.
Reversed in part, vacated in part, and remanded with instructions.