Commonwealth v. Greer

• Decision Date: 22 July 2014
• Docket Number: Record No. 1898–13–1.
• Citation: 760 S.E.2d 132,63 Va.App. 561
• Court: Virginia Court of Appeals
• Parties: COMMONWEALTH of Virginia v. Rayshawn Torrell GREER.

63 Va.App. 561
760 S.E.2d 132

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 133]

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

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 Code § 18.2–308.2. As permitted by Code § 19.2–398(C), the Commonwealth appeals the defendant's sentence for that offense.¹ It contends that the trial court erred by sentencing the defendant to a term of imprisonment of two years rather than the five-year mandatory minimum sentence. The trial court imposed that sentence after the jury returned a sentencing verdict of two years, despite written and oral instructions properly advising the jury that the only statutorily available sentence for the crime was a mandatory term of imprisonment of five years. The Commonwealth further argues that the trial court was required to set aside the jury's erroneous sentencing verdict and impanel a new jury to sentence the defendant in accordance with the law. We hold that the trial court's imposition of a jury sentence below the mandatory minimum sentence of five years was void ab initio. Additionally, we hold that the trial court erred in refusing to impanel a new jury for sentencing after the original jury refused to perform its duties as instructed. Therefore, we reverse in part, vacate the defendant's sentence, and remand to the trial court for sentencing before a new jury.

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

[760 S.E.2d 134]

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.

During deliberations, the jury submitted the following handwritten question: “Is the 5 years the only option?” The trial court consulted with counsel and provided the following written response: “The answer is yes.” The jury then further inquired in writing, “What if we do not all agree to the fix [sic] punishment of 5 years?” In response, the court brought the jury back and reminded them that their verdict had to be unanimous and if they could “possibly reach a verdict, it [was] [their] duty to do so.”

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. The trial court imposed the two-year punishment set by the jury.

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, Code § 19.2–295.1 required the trial court to impanel a new sentencing jury.

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.

[760 S.E.2d 135]

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. Commonwealth (J.M. Rawls), 272 Va. 334, 351, 634 S.E.2d 697, 706 (2006). A trial court “ ‘by definition abuses its discretion when it makes an error of law.... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.’ ” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047–48, 135 L.Ed.2d 392 (1996)). To the extent that determinations regarding sentencing involve the interpretation of a statute or the common law, such an interpretation is a question of law reviewed de novo on appeal. See Woodard v. Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014); Country Vintner, Inc. v. Louis Latour, Inc., 272 Va. 402, 410, 634 S.E.2d 745, 750 (2006).

Code § 18.2–308.2(A) provides that one who possesses a firearm after having been convicted of a felony “shall be guilty of a Class 6 felony.” A Class 6 felony is punishable by imprisonment for a minimum of one year and up to five years. SeeCode § 18.2–10(f). Code § 18.2–308.2(A) provides further, “[h]owever, [that] any person who violates this statute by knowingly and intentionally possessing ... any firearm and who was previously convicted of a violent felony as defined in § 17.1–805 shall be sentenced to a mandatory minimum term of imprisonment of five years.” (Emphasis added). “Since a violation of Code § 18.2–308.2(A) is a Class 6 felony punishable under Code § 18.2–10 by a term of imprisonment between one and five years, the mandatory minimum sentence for a defendant convicted of possession of a firearm after a previous violent felony conviction equals the statutory maximum sentence [of five years].” J.M. Rawls, 272 Va. at 347–48, 634 S.E.2d at 703 (emphasis added); see Johnson v. Commonwealth, 56 Va.App. 244, 248–53, 692 S.E.2d 651, 653–55 (2010) (rejecting a separation-of-powers challenge to the five-year mandatory minimum sentence in Code § 18.2–308.2).

Here, the parties agree that because the defendant had a prior conviction for robbery, an offense enumerated in Code § 17.1–805(C) by reference to Code § 18.2–58, the “violent felony” provision of Code § 18.2–308.2(A) applies and the mandatory minimum as well as the maximum sentence for the offense is five years. The parties also agree that the trial court properly instructed the jury that the appropriate sentence is five years in prison. Despite receiving proper instructions, however, the jury unanimously fixed the defendant's punishment at two years in contravention of the law as set out in those instructions. The trial court sentenced the defendant in accord with the jury's sentencing verdict.

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...