Shifflett v. Com., 2258-95-2

Docket NºNo. 2258-95-2
Citation26 Va.App. 254, 494 S.E.2d 163
Case DateDecember 30, 1997
CourtCourt of Appeals of Virginia

Page 163

494 S.E.2d 163
26 Va.App. 254
Vernon Leroy SHIFFLETT
Record No. 2258-95-2.
Court of Appeals of Virginia,
Dec. 30, 1997.

Page 164

Scott Goodman, Charlottesville, for appellant.

Richard B. Smith, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.


BENTON, Judge.

Vernon Leroy Shifflett was convicted by a jury of driving after having been adjudicated an habitual offender and after having been twice convicted of the same offense. The jury sentenced him to three years imprisonment. Shifflett contends that the trial judge erred in excluding from the jury's consideration mitigating evidence relevant to sentencing. A panel of this Court, with one judge dissenting, affirmed the trial judge's decision. See Shifflett v. Commonwealth, 24 Va.App. 538, 484 S.E.2d 134 (1997). For the reasons that follow, upon rehearing en banc, we reverse and remand for a new sentencing proceeding in accordance with the provisions of Code § 19.2-295.1.


During the guilt phase of Shifflett's trial, State Police Trooper Bob Davis testified for the Commonwealth that he passed a service station and saw Shifflett pumping gas into Norma Roach's truck. Trooper Davis recognized Shifflett as an habitual offender whom he had arrested a year earlier. Trooper Davis waited at a place that he knew Shifflett would have to pass to get home. When Shifflett drove by with Roach in the passenger seat, Trooper Davis signalled for Shifflett to stop.

In Shifflett's defense, a friend and co-worker testified that he drove Shifflett to work on the date of the offense and was to drive Shifflett home that evening. However, when the friend learned in the middle of the day that he had to work late, he told Shifflett to find another ride home.

[26 Va.App. 257] Shifflett testified that he contacted Norma Kim Roach, the woman with whom he lives and who is the mother of his children, and asked her to come for him. However, Roach said that she did not feel well. Shifflett told Roach that if she was not at his place of employment at the end of his work shift he would attempt to find a ride with someone or walk if necessary. He worked in Charlottesville but lived in Earleysville.

When Shifflett left work, Roach was waiting in her truck and told Shifflett that she still was not feeling well. While driving home, Roach became dizzy and began to lean forward. Shifflett testified that he grabbed the steering wheel and told Roach to stop. After Roach drove into a restaurant's parking lot, Shifflett obtained food and a drink for her. Shifflett testified that after Roach told him that she still did not feel better, he drove the truck because their children, ages eleven and four, were alone at home.

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Shifflett testified that he stopped on the way home to buy gas for the truck. While Shifflett was pumping the gas, Roach went inside the store to pay for the gas. When Shifflett drove away from the store, the officer signalled for Shifflett to stop.

After the jury found Shifflett guilty of driving after having been declared an habitual offender, Shifflett's counsel informed the trial judge that he intended to offer mitigating testimony about Shifflett's employment, family responsibilities, and his motive for committing the offense. The trial judge ruled that testimony from Roach about Shifflett's family responsibilities was inadmissible. Over Shifflett's objection, the trial judge ruled that evidence at the penalty phase would be limited to the "range of punishment established by [the] legislature, injury to the victim, use of [a] weapon, extent of [the] offender's participation, the offense, [the] offender's motive in committing the offense, prior record and rehabilitative efforts, drug and alcohol use, age, health and education."

During the penalty phase, Roach was permitted to testify that she was not feeling well when Shifflett called and told her [26 Va.App. 258] that he needed a ride home. She went for him because he had no means of getting home, except by walking. She testified that as they were leaving Charlottesville, she became dizzy from vertigo. She further testified that she has had episodes of vertigo for twelve years, that she has had three ear surgeries, and that she continues to receive treatment. When she did not feel better after eating, she asked Shifflett to drive because she was concerned about their children being at home alone.

Roach's doctor testified that Roach suffers from vertigo. He testified that her "vertigo ... is a ... dizzy condition ... that's transient, that comes and goes."

When Shifflett's counsel sought to question Shifflett's employer about Shifflett's employment, the trial judge sustained the Commonwealth's objection based on the prior ruling limiting the evidence. However, after the jury rendered its verdict on the sentence, the trial judge discharged the jury and heard the testimony of Shifflett's employer, William Amos Breeden, before he imposed the jury's sentence. Breeden testified that Shifflett did an "excellent job" as his employee and that Shifflett was paid nine dollars per hour. Breeden also testified as follows about efforts Shifflett made to get to work:

Well, for a couple months or three months, I was going to pick [Shifflett] up at his house and taking him home and his dad also paints, so, I hired his dad a month ago and he brings him to my house and we leave from my house every morning at 5:30.

Breeden testified that Shifflett displayed no "indication of any alcohol abuse."


The rule is long standing in Virginia that "[w]ithin the limits prescribed by law, the terms of confinement in the state correctional facility or in jail and the amount of fine, if any, of a person convicted of a criminal offense, shall be ascertained by the jury, or by the court in cases tried without a jury." Code § 19.2-295. Recently, the legislature established a procedure[26 Va.App. 259] bifurcating the trial and punishment proceedings. In pertinent part, the statute states as follows:

In cases of trial by jury, upon a finding that the defendant is guilty of a felony, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury.... After the Commonwealth has introduced ... evidence of prior convictions, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidence related to punishment.

Code § 19.2-295.1. This statute vests in juries wide discretion in recommending a sentence within the statutory framework.

The purpose of Code § 19.2-295.1 is to provide two separate phases of a trial. "The procedure assures the jury access to 'information specific only to sentencing, apart from the considerations of guilt or innocence,' thereby promoting a punishment appropriate to the circumstances without [prejudicing] the initial determination of guilt or innocence." Daye v. Commonwealth, 21 Va.App. 688, 689, 467 S.E.2d 287, 288 (1996) (citation

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omitted). " 'The sentencing decision ... is a quest for a sentence that best effectuates the criminal justice system's goals of deterrence (general and specific), incapacitation, retribution and rehabilitation.' " Gilliam v. Commonwealth, 21 Va.App. 519, 524, 465 S.E.2d 592, 594 (1996) (citation omitted) (footnote omitted).

The general principle is well established that in the exercise of its sentencing function, "[a] jury must be allowed to consider ... all relevant evidence." Jurek v. Texas, 428 U.S. 262, 271, 96 S.Ct. 2950, 2956, 49 L.Ed.2d 929 (1976); see Pierce v. Commonwealth, 21 Va.App. 581, 584-85, 466 S.E.2d 130, 132 (1996). "For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937).

[26 Va.App. 260] [W]here sentencing discretion is granted, it generally has been agreed that the sentencing [jury's] "possession of the fullest information possible concerning the defendant's life and characteristics" is "[h]ighly relevant--if not essential--[to the] selection of an appropriate sentence...."

Lockett v. Ohio, 438 U.S. 586, 602-03, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949)). Because the circumstances of the offense and the character and propensities of the offender vary in each case, "the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country." Id. at 602, 98 S.Ct. at 2963.

The employer's testimony regarding Shifflett's success at work and his efforts to maintain a commuting schedule that obviated his need to drive reflects on Shifflett's "character and propensities." Ashe, 302 U.S. at 55, 58 S.Ct. at 61. Moreover, relevant sentencing factors traditionally have included an accused's habits, lifestyle, mental resources, family, and occupation. See Bassett v. Commonwealth, 13 Va.App. 580, 581, 414 S.E.2d 419, 420 (1992); State v. Lemley, 552 N.W.2d 409, 412 (S.D.1996); State v. Morris, 750 S.W.2d 746, 750 (Tenn.Crim.App.1987). Cf. Burket v. Commonwealth, 248 Va. 596, 615, 450 S.E.2d 124, 135 (1994); Murphy v. Commonwealth, 246 Va. 136, 141, 431 S.E.2d 48, 51...

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3 cases
  • Caudill v. Com., 0587-97-3
    • United States
    • Virginia Court of Appeals of Virginia
    • April 7, 1998 sentencing as "relevant, admissible evidence related to punishment" is an unsettled issue in Virginia. See Shifflett v. Commonwealth, 26 Va.App. 254, 494 S.E.2d 163 (1997) (en banc) (currently on appeal to the Virginia Supreme However, in Coppola v. Commonwealth, 220 Va. 243, 257 S.E.2d ......
  • Smith v. Com., Record No. 1241-97-4.
    • United States
    • Virginia Court of Appeals of Virginia
    • May 12, 1998
    ...into account the circumstances of the offense together with the character and propensities of the offender.'" Shifflett v. Commonwealth, 26 Va.App. 254, 259, 494 S.E.2d 163, 166 (1997) (en banc) (quoting Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1......
  • Com. v. Shifflett, Record No. 980187
    • United States
    • Virginia Supreme Court of Virginia
    • January 8, 1999
    ...the Court of Appeals, in a 6-3 decision, reversed the case and remanded it for a new sentencing proceeding. Shifflett v. Commonwealth, 26 Va. App. 254, 261, 494 S.E.2d 163, 167 (1997). The court stated that the "employer's testimony regarding Shifflett's success at work and his efforts to m......

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