Edward Lee Cherry v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Senior Judge Hodges
Argued at Chesapeake, Virginia
EDWARD LEE CHERRY
MEMORANDUM OPINION * BY
v. Record No. 0468-00-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on brief), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial court convicted Edward Lee Cherry of robbery and
use of a firearm during the commission of a felony. It
sentenced him to twenty-five years for robbery but suspended
eighteen years of the sentence for an indefinite period
conditioned on good behavior. 1 The trial court placed the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
The sentencing order provides:
The Court SUSPENDS EIGHTEEN (18) YEARS of
the Twenty-Five (25) years sentence, for an
indefinite period, upon the following
conditions: that the defendant attend
mental health counseling.
defendant on supervised probation for an indefinite period. 2 He
contends the trial court erred in suspending his sentence and
placing him on probation for "an indefinite period." Finding no
error, we affirm.
The defendant did not raise his objection in the trial
court; Rule 5A:18 bars consideration of it on appeal unless the
sentence is void. Nesbit v. Commonwealth, 15 Va. App. 391, 394,
424 S.E.2d 239, 240 (1992). The defendant concedes in argument
that he made no objection to the sentence imposed at trial and
that he can prevail on this appeal only if the sentencing order
is void. If the sentence exceeds the statutory limits, the
excessive portion is invalid, and objection can be raised at any
time. Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509,
510-11 (1973).
Good Behavior: The defendant shall be of
good behavior for an indefinite period from
the defendant's release from confinement.
Supervised Probation: The defendant is
placed on probation on his release from
incarceration, under the supervision of a
Probation Officer for an indefinite period,
or unless sooner released by the court or by
the probation officer. The defendant shall
comply with all the rules and requirements
set by the probation officer. Probation
shall include substance abuse counseling
and/or testing as deemed necessary by the
Probation Officer.
(Emphasis in original).
2
The trial court sentenced the defendant to three years on
the firearm offense and suspended none of that sentence.
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A trial court may suspend a sentence and place the
defendant on probation. If no period of suspension or probation
is fixed, the maximum sentence authorized for the crime defines
the maximum period of suspension or of probation. If a period
is specified, the limitation on the trial court's discretion in
fixing the maximum period is that it be reasonable. Dyke v.
Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952).
The trial court "may fix the period of suspension for a
reasonable time, having due regard to the gravity of the
offense, without regard to the maximum period for which the
defendant might have been sentenced." Code § 19.2-303.1. "The
court may, for any cause deemed by it sufficient which occurred
at any time within the probation period, or if none within the
period of suspension fixed by the court, or if neither, within
the maximum period for which the defendant might originally have
been sentenced to be imprisoned, revoke the suspension of
sentence and any probation . . . ." Code § 19.2-306.
The trial court convicted the defendant of robbery for
which the maximum sentence permitted is life in prison.
Indefinite suspension or indefinite probation could not exceed a
sentence for life. The trial court did not impose a period of
suspension or probation that exceeded the maximum sentence
authorized. An indefinite period was reasonable given the
gravity of the offense, robbery. The sentencing order is not
void. Accordingly, we do not consider an objection the
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defendant raises on appeal but which he never addressed to the
sentencing judge.
Affirmed.
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