Brown v. Com.

• Decision Date: 02 May 1989
• Docket Number: No. 0957-87-4,0957-87-4
• Citation: 8 Va.App. 126,380 S.E.2d 8
• Parties: Wayne T. BROWN v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 8

380 S.E.2d 8

8 Va.App. 126

Wayne T. BROWN v. COMMONWEALTH of Virginia.

Record No. 0957-87-4.

Court of Appeals of Virginia.

May 2, 1989.

Patricia A. Smith (Sanders, O'Donnell & Smith, Alexandria, on brief), for appellant.

Katherine B. Toone, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, COLEMAN and KEENAN, JJ.

COLEMAN, Judge.

This appeal addresses the limitation upon the Court of Appeals to consider a trial court error for which no contemporaneous objection was made. The alleged error occurred in sentencing. Rule 5A:18 directs that no ruling of a trial court will be considered as a basis for reversal unless the objection and grounds were stated at the time, except for good cause shown or to enable the court to attain the ends of justice. The appellant does not contend that good cause existed for failing timely to object to the alleged error. In fact, he contends his trial counsel was ineffective by failing to object. ¹ We consider whether the ends of justice require that we disregard the Rule 5A:18 procedural deficiency and redress the error.

The crux of the sentencing error is that Wayne T. Brown was convicted for one burglary but was sentenced for another burglary without Brown or his attorney voicing any objection at the time of sentencing. In a bench trial the court convicted Brown of statutory burglary with the intent to commit larceny. Approximately two weeks later the trial judge sentenced Brown to seven years in the penitentiary. ² The record clearly establishes that at the sentencing hearing the trial judge sentenced Brown for the criminal offense described in the presentence report, which was a burglary other than the one for which Brown had been indicted and convicted. Neither the trial judge nor the prosecutor discovered the error, and, inexplicably, if either the appellant or his trial counsel was aware of it, neither made the error known or objected to it. The appellant now urges that we consider the error for the first time on appeal in order to attain the ends of justice. The Commonwealth, acknowledging at oral argument that the crime described in the offense section of the presentence report was erroneous, argues that since appellant was sentenced with the permissible range of punishment for statutory burglary, the crime for which he was convicted, no prejudice resulted. Therefore, according to the Commonwealth, we should apply Rule 5A:18 and decline to consider the alleged error. The Attorney General contends that no clear miscarriage of justice can be demonstrated because Brown was sentenced for the same type of felony with very similar facts to the burglary for which he was convicted.

The burglary for which Brown was convicted occurred on February 22, 1987. Brown kicked in the front door of Mrs. Elizabeth C. Hayes' townhouse in Fairfax. No one was at home at the time. Brown entered the Hayes' residence and, after looking through a desk on the ground floor and finding nothing "worth taking," he left the home. In leaving, Brown broke an iron gate as he left Hayes' yard.

Approximately one month after the Hayes' breaking and entering, Brown was arrested for another burglary in Fairfax. After signing a "Miranda rights waiver" form, Brown confessed to the burglary for which he had been arrested and to the Hayes' burglary.

After pleading not guilty, Brown was convicted in a bench trial on June 10, 1987, of statutory burglary for breaking and entering the Hayes' townhouse. Since a presentence investigation and report were being prepared for another sentencing hearing scheduled June 19, 1987, the court indicated that the Hayes' conviction could be added to the report and the same presentence report which was being prepared could be used for sentencing.

At the sentencing hearing on June 26, 1987, the presentence report which was introduced contained a narrative that described a burglary other than that of the Hayes' residence. Although the report identified the case by the docket number assigned the indictment for the Hayes' burglary, the account was for another burglary which Brown committed in Alexandria on February 22, the same day of the Hayes' breaking and entering. According to the report, an investigating officer responded to a neighbor's call and discovered that the front door of Mrs. Sampson's townhouse had been forced open. The door frame had been torn away from the house foundation. A bottom floor window had been broken. A VCR purchased for $350 was stolen. The report indicated that Brown had admitted to an investigating officer burglarizing the townhouse "after he was given immunity by the Commonwealth's Attorney." However, the report indicated that Brown reported to the officer preparing the presentence report that he did not "fully recall what happen in this burglary. This was part of a plee agree [sic]."

At sentencing the trial judge stated:

I heard this case in a bench trial, and I was struck by the fact that you busted into this door, smashed the door frame as I recall, and took things and then came out in this presentence report that we don't even remember what you did. Help is fine, but you've got to help yourself. Help yourself after you serve these sentences.

I sentence you to seven years in the state penitentiary.

In imposing sentence the trial judge clearly considered that Brown had taken property in the burglary and had reported to the probation officer that he did not "even remember what [he] did." Unquestionably the trial court mistakenly sentenced Brown for a burglary other than the one for which he was convicted.

Under Rule 5A:18 we do not notice the trial errors for which no timely objection was made except in extraordinary situations when necessary to enable us to attain the ends of justice. The laudatory purpose behind Rule 5A:18, and its equivalent Supreme Court Rule 5:25, frequently referred to as the contemporaneous objection rules, is to require that objections be promptly brought to the attention of the trial court with sufficient specificity that the alleged error can be dealt with and timely addressed and corrected when necessary. The rules promote orderly and efficient justice and are to be strictly enforced except where the error has resulted in manifest injustice. Errors usually can be corrected in the trial court, particularly in a bench trial, without the necessity of appeal. Because our function is to review the rulings of the trial court, rather than superintend the proceedings, we will notice error for which there has been no timely objection only when necessary to satisfy the ends of justice. White v. Commonwealth, 3 Va.App. 231, 234, 348 S.E.2d 866, 868 (1986).

Whether we apply the bar of Rule 5A:18 or invoke the ends of justice exception, we must evaluate the nature and effect of the error to determine whether a clear miscarriage of justice occurred. We must determine whether the error clearly had an effect upon the outcome of the case. The error must involve substantial rights. The guilt determination phase is not the only aspect of the trial to be reviewed. For a convicted criminal the length of sentence becomes the most important aspect of the case. Due process protections apply to sentencing. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948).

The Commonwealth relies upon Mounce v. Commonwealth, 4 Va.App. 433, 357 S.E.2d 742 (1987) to argue that no miscarriage of justice has occurred because the defendant cannot show that had the offense description been correct a different (presumably lesser) sentence would have given. The Attorney General argues that Mounce held it is not sufficient to show "that a miscarriage [of justice] might have occurred;" rather, in order to prevail when the appellant has not timely objected to the error at trial "the record [must] affirmatively [show] that a miscarriage of justice has occurred." Id. at 436, 357 S.E.2d at 744.

Although the ends of justice exception is narrow and is to be used sparingly, the Commonwealth places too restrictive an interpretation upon Mounce. The language in Mounce that to avail himself of the rule the defendant had to affirmatively show that "a miscarriage of justice [has] occurred, not ... that a miscarriage might have occurred" requires that the error be clear, substantial and material. Mounce dealt with the sufficiency of the evidence to prove the value of a vehicle that was the subject of a felonious unauthorized use conviction. We held that, although there was no direct evidence that the vehicle's value exceeded...