Batts v. Com.

• Decision Date: 08 June 1999
• Docket Number: Record No. 0592-98-4.
• Citation: 30 Va. App. 1,515 S.E.2d 307
• Parties: Javier Jerome BATTS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

515 S.E.2d 307

30 Va. App. 1

Javier Jerome BATTS v. COMMONWEALTH of Virginia.

Record No. 0592-98-4.

Court of Appeals of Virginia, Alexandria.

June 8, 1999.

Michael F. Devine, for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., LEMONS, J., and DUFF, Senior Judge. FITZPATRICK, Chief Judge.

Javier Jerome Batts (appellant) was convicted in a jury trial of the use of a firearm in the commission of a robbery, in violation of Code § 18.2-53.1.¹ On appeal, he contends the trial court erred in instructing the jury to impose an enhanced punishment of five years for a second offense firearm conviction. For the following reasons, we vacate the five-year sentence reflecting the enhanced punishment and remand with instructions to enter an order imposing a three-year sentence on appellant's firearm conviction.

I. BACKGROUND

On April 21, 1997, appellant was indicted for the robbery of Andrea A. Thomas and the use of a firearm in the commission of robbery.² A jury trial was set for August 6, 1997. Appellant filed a pretrial motion in limine seeking to prevent the Commonwealth from using an earlier firearm conviction as the predicate for imposing an enhanced penalty. In the earlier case, the jury returned a guilty verdict and although sentencing was set prior to the August 6 trial date in the instant case, Judge Stevens continued the sentencing hearing in that case at the request of appellant's trial counsel.³

Appellant argued that because no final sentencing order had been entered on the earlier firearm conviction, the jury should have been instructed only as to the first offender sentence of three years. At that time, the trial court indicated it would resolve the dispute after the presentation of evidence. The Commonwealth then moved for a continuance, arguing that appellant should not be allowed to "manipulate the court system" by requesting ex parte a continuance of the first firearm sentencing hearing in order to avoid the enhanced punishment in the instant case. Noting that trial counsel's actions "put the Commonwealth in a bind," the trial judge initially granted the motion to continue.

In an extended colloquy between the trial judge and appellant's counsel, counsel objected both to the continuance and the proposed jury instruction on the enhanced five-year punishment for the firearm charge.⁴ Appellant ultimately "conceded the point" and "agreed" to the five-year jury instruction rather than have the matter continued. At the conclusion of the evidence, the trial court reviewed the Commonwealth's proposed Instruction G, which contained the mandatory five-year sentence on the firearm charge. When the trial judge asked counsel if he had any objection to the proposed instruction, counsel stated, "That's acceptable." The jury subsequently convicted appellant of the firearm offense and recommended the "five years mandatory fixed" sentence.

Judge Alden continued the case to November 21, 1997, for the imposition of sentence. Prior to that time, Judge Stevens set aside the jury verdict on the firearm conviction in the first, unrelated case. Accordingly, appellant filed a motion to set aside the verdict in the instant case, alleging that the jury instruction was improper because it contained the enhanced punishment of five years.

On October 31, 1997, after the trial in the instant case but before the scheduled sentencing hearing, appellant was convicted of two additional firearm offenses resulting from another unrelated crime. In that case, the trial judge sentenced him to three years on the first offense and five years on the second offense.

At the sentencing hearing in the present case, Judge Alden denied appellant's motions to set aside the verdict and imposed the mandatory five-year sentence. The trial judge found as follows:

All right, well, I've considered the pre-sentence report in this case, the sentencing guidelines, the jury recommendation, counsel's arguments. Mr. Batts, I've considered your letter and the other facts and circumstances regarding the case.

And I conclude that the instruction, when given, was correct. Now, after the correct instruction was given, circumstances changed, which might have allowed me at a sentencing proceeding to exercise my discretion or may have required me to — I don't know — to impose a lesser sentence than that the jury had imposed at the time it was instructed.

However, as it's turned out in this case, I guess, it has gone full circle because even though the facts changed after the jury was properly instructed, by the time you get to the sentencing day, the facts have gone all the way around again and have come back to the beginning. So, I conclude, based on all of that, that the jury was properly instructed and that today the sentence of the jury is the proper sentence to impose.

Accordingly, the trial judge imposed the five-year sentence on the firearm charge.

II. JURY INSTRUCTION

Appellant contends that at the time the jury was instructed to impose the mandatory five-year sentence for a second firearm offense, there was no predicate conviction because a final order had not been entered on the earlier firearm offense. Because the jury was instructed to impose a sentence greater than that authorized by statute, the instruction was erroneous even though it was approved by appellant's counsel.

"[An appellate] court's responsibility in reviewing jury instructions is to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises. It is elementary that a jury must be informed as to the essential elements of the offense; a correct statement of the law is one of the essentials of a fair trial." Darnell v. Commonwealth, 6 Va.App. 485, 488, 370 S.E.2d 717, 719 (1988) (internal quotations and citations omitted). "[W]hen a principle of law is vital to a defendant in a criminal case, a trial court has an affirmative duty properly to instruct a jury about the matter." Jimenez v. Commonwealth, 241 Va. 244, 250, 402 S.E.2d 678, 681 (1991).

At the time of trial in the instant case, appellant had not been sentenced on the earlier firearm offense pending before Judge Stevens. Trial counsel admitted in the colloquy with Judge Alden that "[he] called Judge Stevens" to get a continuance in that case. Alleging that appellant sought that continuance for tactical reasons, the Commonwealth's attorney in the present case moved for a continuance, pending the outcome of the first case. While Judge Alden was "considering granting the motion for a continuance," trial counsel said he would "concede the point" and agreed to the instruction. Subsequently, when the trial judge asked counsel if he had any objection to the firearm instruction, Instruction G, counsel said, "That's acceptable." It is in this fast and loose climate that appellant contends the jury was improperly instructed.

A party may not invite error and subsequently raise that error as grounds for appeal. "[A] defendant, having agreed upon the action taken by the trial court, should not be allowed to assume an inconsistent position. No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate — to invite error ... and then to take advantage of the situation created by his own wrong." Manns v. Commonwealth, 13 Va.App. 677, 679-80, 414 S.E.2d 613, 615 (1992) (citations omitted). Trial counsel agreed to the proposed jury instruction and, thus, became a party to the error he now complains of on appeal. However, his agreement cannot confer the power to impose a sentence greater than that established by the legislature. The penalty exceeded that authorized by statute and, therefore, we hold that the jury was improperly instructed. Code § 18.2-53.1 makes it unlawful for any person to use or display a firearm while committing one of the enumerated felonies. That section provides:

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a term of imprisonment of three years for a first conviction, and for a term of five years for a second or subsequent conviction under the provisions of this section.

Code § 18.2-53.1 (emphasis added). The statute is recidivist in nature because it is "aimed at punishment of specific behavior, not reform." Stubblefield v. Commonwealth, 10 Va.App. 343, 347, 392 S.E.2d 197, 198 (1990).

Based on the evidence before the trial court, Instruction G provided an incorrect statement of law because it instructed the jury on the enhanced punishment provision for a "second or subsequent conviction" in the absence of proof of a first conviction. A final sentencing order was a necessary predicate to this action, and Judge Stevens had not entered one on the earlier firearm offense. The jury's verdict in that case was not a final conviction without the entry of the sentencing order and, therefore, could not be used to establish the predicate first offense. See Ramdass v. Commonwealth, 248 Va. 518, 520, 450 S.E.2d 360, 361 (1994), cert. denied, 514 U.S. 1085, 115 S.Ct. 1800, 131 L.Ed.2d 727 (1995). In Ramdass, our Supreme Court considered whether the defendant's prior conviction for armed robbery made him ineligible for parole. The Court concluded: "Judgment had not been entered on that...