Robinson v. Com., 0877-90-1

• Decision Date: 21 January 1992
• Docket Number: No. 0877-90-1,0877-90-1
• Citation: 413 S.E.2d 661,13 Va.App. 540
• Parties: James Curtis ROBINSON, s/k/a James C. Robinson, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 661

413 S.E.2d 661

13 Va.App. 540

James Curtis ROBINSON, s/k/a James C. Robinson, Jr. v. COMMONWEALTH of Virginia.

Record No. 0877-90-1.

Court of Appeals of Virginia.

Jan. 21, 1992.

Anthony L. Montagna, Jr., for appellant.

Richard B. Smith, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, COLEMAN and WILLIS, JJ.

WILLIS, Judge.

The appellant, James Curtis Robinson, was convicted of two counts of possession of cocaine with intent to distribute in violation of Code § 18.2-248. The punishment provided by the statute is confinement in the penitentiary for not less than five nor more than forty years and a fine not exceeding $100,000. For the first offense, which occurred April 13, 1988, the appellant was sentenced to fifteen years in the state penitentiary, with ten years to serve and five years suspended, and to pay a fine of $1,000. For the second offense, which occurred December 1, 1988, he was sentenced to twenty-five years in the penitentiary, with twenty years to serve and five years suspended, and to pay a fine of $1,000. On appeal, he does not contest his convictions, but contends that his sentences were erroneous because they departed from the Voluntary Sentencing Guidelines then being used on a discretionary basis in the trial court. We find no error and affirm the judgment of the trial court.

Upon the appellant's conviction and preparatory to sentencing, the trial court ordered a presentence report pursuant to Code § 19.2-299. As part of that report, the probation officer calculated the range of punishment provided by the Voluntary Sentencing Guidelines for the two charges embraced by this appeal and other charges to which the appellant pleaded guilty and was sentenced pursuant to a plea agreement. The guidelines indicated confinement for not less than seven years, eleven months, nor more than fifteen years, seven months, with a midpoint of eleven years, eleven months. The trial judge noted under the heading of Departure Information, "Substantial amount of cocaine. Evidence of many years activity in selling drugs. Evidence of millions of dollars involved."

The appellant contends that the trial court erred in departing from the range of sentence provided by the guidelines. However, that is not the argument that he presented to the trial court. His attorney argued:

I think we are in agreement as to what the guidelines are as to the charges for which I represent Mr. Robinson, and I would submit to the court that guideline sentencing might be appropriate in other cases, but I don't really think with his physical condition that the court should follow the guidelines, certainly not to go up to the high end.... But I would ask the court that certainly the guidelines, in my judgment, the midpoint certainly would be an optional punishment, if the court were predisposed not to take into consideration Mr. Robinson's physical condition ... I would ask the court to place Mr. Robinson on probation.... I don't believe that society will...