Pope v. Com.
Decision Date | 05 February 2002 |
Docket Number | Record No. 0656-01-1. |
Citation | 37 Va. App. 451,559 S.E.2d 388 |
Court | Virginia Court of Appeals |
Parties | Travis Lamont POPE v. COMMONWEALTH of Virginia. |
Keith Loren Kimball, Virginia Beach; Colgan, Kimball & Carnes, on brief, for appellant. Appellant submitting on brief.
Randolph A. Beales, Attorney General; Michael T. Judge, Assistant Attorney General, on brief, for appellee. Appellee submitting on brief.
Present: BRAY, BUMGARDNER and FRANK, JJ.
Travis Lamont Pope (appellant) was convicted in a bench trial of carjacking, in violation of Code § 18.2-58.1, and use of a firearm while committing carjacking, in violation of Code § 18.2-53.1. On appeal, he contends the trial court erred in considering sentencing guidelines that used his juvenile robbery conviction.1 He argues the juvenile conviction is void and, therefore, the court should not have considered it. For the reasons stated, we affirm both convictions.
The facts are not in dispute.
On October 30, 2001, appellant pled guilty to carjacking and use of a firearm in the commission of carjacking. There was no plea agreement. During the plea colloquy, appellant acknowledged he understood the maximum possible sentence for these offenses was life in prison plus three years. At the conclusion of the plea proceeding, the circuit court accepted the pleas and continued the matter for the preparation of a presentencing report.2
On January 31, 2001, appellant filed a motion in limine, asserting the sentencing range recommended by the Commonwealth was improper because the range was calculated using sentencing guidelines that considered a 1996 adjudication of delinquency for a robbery offense, entered by the Juvenile and Domestic Relations District Court of the City of Norfolk. In his motion, appellant argued that since his father was not notified of the juvenile proceeding, the judgment was void under Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999).3 The circuit court heard and denied the motion in limine on February 7, 2000.
At sentencing, the court considered sentencing guidelines prepared by defense counsel, which did not include the juvenile robbery adjudication. These guidelines gave a range of seven years and seven months to eleven years and ten months, with a midpoint of ten years and three months. The Commonwealth's guidelines gave a range of seventeen years and eight months to twenty-seven years and nine months, with a midpoint of twenty-three years and eleven months.
At the sentencing hearing, the victim testified that the carjacking took place in front of his home, requiring that he re-live the incident daily. He stated, "I'm not sure you can live there every day and be the same."
Before announcing the sentence, the trial court stated:
I've looked at the guidelines that have been prepared both by the Commonwealth and the probation department, and I've also reviewed the guidelines prepared by [the defense] attorney. I considered all of them. The trial court feels that, based on the totality of the evidence and your record and what actually occurred, this is not a guidelines case. I've reviewed them and considered both of them.
The court sentenced appellant to fifty years in prison, with twenty-five years suspended, for the carjacking conviction and three years in prison for the firearm conviction. In setting this sentence, the court took into account appellant's "senseless" and "extreme criminal behavior" and the trauma to the victim.
Appellant argues the juvenile robbery conviction is void and, therefore, any sentencing that considered that conviction is tainted. However, his underlying premise is wrong, given the Supreme Court's recent decision in Nelson v. Warden of the Keen Mountain Corr. Ctr., 262 Va. 276, 552 S.E.2d 73 (2001). Prior to Nelson, the Supreme Court had provided support for appellant's argument in Moore v. Commonwealth, 259 Va. 431, 437-40, 527 S.E.2d 406, 409-11 (2000). Moore held that a juvenile court did not have authority to exercise subject matter jurisdiction over a child faced with criminal charges if that court failed to notify the parents of the juvenile's charges, thus making any judgment of that court void. Id.
Moore, like appellant here, had not preserved this argument for direct appeal of the challenged conviction. Id. at 436, 527 S.E.2d at 408. The Supreme Court, however, found Moore's conviction was void, explaining:
Id. at 437-39, 527 S.E.2d at 409-10.
Nelson effectively overruled this analysis in Moore. The Supreme Court stated in Nelson, "We are of [the] opinion David Moore is flawed by our failure to recognize that, in the legal and factual framework in which the decision was made, a different outcome should have resulted from the distinction we drew between subject matter jurisdiction and the authority to exercise that jurisdiction." 262 Va. at 282, 552 S.E.2d at 76. The Court explained that the parental notification requirement is not jurisdictional, but procedural, and "a failure to notify parents [can] be waived by a failure to object," meaning Id. at 285, 552 S.E.2d at 77.
As in Nelson, appellant herein did not preserve his argument that the juvenile court failed to give his father notice of the robbery charge. Instead, he raised this issue collaterally by filing a motion in limine to exclude consideration of that juvenile conviction, after he pled guilty to the two separate offenses appealed...
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