James Burdine Scalf, Jr. v. Commonwealth of Virginia ( 2008 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Haley
Argued at Salem, Virginia
JAMES BURDINE SCALF, JR.
MEMORANDUM OPINION * BY
v. Record No. 0007-07-3 JUDGE JAMES W. HALEY, JR.
MAY 13, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LEE COUNTY
Birg E. Sergent, Judge
John H. Qualls for appellant.
Alice T. Armstrong, Assistant Attorney General II (Robert F.
McDonnell, Attorney General, on brief), for appellee.
James Burdine Scalf (“appellant”) appeals his sentences for robbery in violation of Code
§ 18.2-58, breaking and entering with the intent to commit larceny in violation of Code
§ 18.2-91, and grand larceny in violation of Code § 18.2-95. Appellant’s brief presents a single
question for resolution: whether the circuit court erred in not ordering that appellant’s sentences
run concurrently with his sentences for related federal crimes that were part of the same general
criminal incident for which he was sentenced by the circuit court in this case. Appellant
contends that the trial judge erroneously concluded that he did not have the discretion to run the
sentence in this case concurrently with the federal sentence.
At oral argument, appellant conceded that he did not preserve this question for appeal.
He asks us to apply the ends of justice exception to Rule 5A:18. Finding that the record on
appeal shows that the trial judge correctly understood his sentencing discretion, we hold that this
is not a suitable case for the application of the ends of justice exception to the general rule that an
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
objection will not be considered as a basis for reversal unless that objection was also made
contemporaneously with the trial court’s ruling. We therefore affirm appellant’s sentences.
FACTS
It is undisputed that appellant broke into a building owned by JAD Coal Company, his
father’s employer, on the morning of December 9, 2005. Once inside, he stole a shotgun and
some tools. Armed with the shotgun, appellant demanded money from Bobby Green, who gave
him forty dollars. He later entered guilty pleas in the Lee County Circuit Court to the charges of
robbery, breaking and entering, and grand larceny. He was also convicted in federal court of
stealing a firearm in interstate commerce, possession of a stolen firearm, and being a felon in
possession of a firearm. Appellant received a sentence of eighty-four months, or seven years,
imprisonment on the federal charges.
On December 4, 2006, appellant and his lawyer appeared in the Lee County Circuit Court
for sentencing. Defense counsel told the sentencing judge the length of appellant’s federal
sentence and argued that some of his Virginia sentence should run concurrently with the federal
sentence because both sets of charges were part of the same criminal incident. The probation
office submitted discretionary sentencing guidelines. The guidelines recommended an active
prison sentence of between nine years six months and fourteen years eleven months. The circuit
court sentenced appellant to ten years imprisonment on each of the three charges, all to run
concurrently with one another. The court suspended six months of each sentence and placed
appellant on six months of supervised probation following his release. The trial judge made the
following comments:
The federal people can do the probation part so I’m going to
sentence you to ten (10) years in the Virginia State Penitentiary,
and I’m going to suspend six (6) months of that. I’m going to
sentence you to the low end of the guidelines because the seven
-2-
years puts you above the maximum for the state guidelines. So
that will leave you with about sixteen years and that will put you
about fourteen, fifteen that you’ll have to pull.
When appellant’s attorney asked the sentencing judge whether the time would run
concurrently with his federal sentence, the judge said, “No, I don’t think I would run it
concurrently. Actually, it’s kind of hard to do. I would not run anything concurrently, I mean if
I go under the guidelines then I’m not following the guidelines that I intend to do. I’m not sure
you really can run it concurrently.” While declining to run the prison sentence concurrently with
appellant’s federal sentence, the circuit court ordered that appellant’s six months of supervised
probation would run concurrently with his federal probation.
Appellant filed a motion to reconsider his sentence, which the circuit court denied. After
listening to defense counsel’s motion, the sentencing judge explained that his refusal to change
the guideline sentence he had imposed was motivated by his desire to treat all defendants fairly:
Well, I never change a guideline sentence, I never have I don’t
think. The sentence was set at the minimum under the guidelines.
The guidelines are followed by this Court because everybody that
comes in here is treated exactly the same within a very few
months, depending on the times that we do things and the time that
the events happen. This young man was treated just like the
richest person and the poorest family in Lee County would have
been treated and I don’t see any need to change it.
ANALYSIS
Under Rule 5A:18 we do not notice the trial errors for
which no timely objection was made except in extraordinary
situations when necessary to enable us to attain the ends of justice.
The laudatory purpose behind Rule 5A:18, and its equivalent
Supreme Court Rule 5:25, frequently referred to as the
contemporaneous objection rules, is to require that objections be
promptly brought to the attention of the trial court with sufficient
specificity that the alleged error can be dealt with and timely
addressed and corrected when necessary. The rules promote
orderly and efficient justice and are to be strictly enforced except
where the error has resulted in manifest injustice.
-3-
Johnson v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10 (1989). “Whether we apply
the bar of Rule 5A:18 or invoke the ends of justice exception, we must evaluate the nature and
effect of the error to determine whether a clear miscarriage of justice occurred.” Id.Code § 19.2-308.1 allows courts to run the sentence of a person convicted of a criminal
offense concurrently with another sentence imposed by a United States court or the court of any
other state or territory. However, the language of the statute does not demand that the court do
so. “[T]he court may order the sentence to run concurrently with the sentence imposed by such
other court.” Code § 19.2-308.1 (emphasis added). Whether to run appellant’s sentence
concurrently with his federal sentence in this case was a decision the statute entrusts to the
discretion of the sentencing judge. Appellant concedes as much, but argues that his sentence
must be reversed because the sentencing judge erroneously concluded that he did not have the
authority to order a concurrent sentence. See Shooltz v. Shooltz, 27 Va. App. 264, 271, 498
S.E.2d 437, 441 (1998) (A trial court “by definition abuses its discretion when it makes an error
of law.”). According to appellant, it is clear that the sentencing judge mistakenly believed he
could not order a concurrent sentence from the comment: “I’m not sure you really can run it
concurrently.”
However, our precedents counsel against reversing a conviction because of a solitary,
ambiguous statement unless a clear error is apparent from the full context of the record.
Absent clear evidence to the contrary in the record, the judgment
of a trial court comes to us on appeal with a presumption that the
law was correctly applied to the facts. Furthermore, we will not fix
upon isolated statements of the trial judge taken out of the full
context in which they were made, and use them as a predicate for
holding the law has been misapplied.
-4-
Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Our review of
the record convinces us that to reverse appellant’s convictions would be to “fix upon isolated
statements of the trial judge taken out of the full context in which they were made . . . .”
The full record suggests that the trial judge correctly understood the extent of his
sentencing discretion and that appellant’s argument is therefore without merit. First, the trial
court ordered that the period of supervised probation following appellant’s release would run
concurrently with appellant’s federal supervised probation. These concurrent probation periods
are not the natural or likely consequences of a mistaken belief that the court lacked the power to
order any part of appellant’s Virginia sentence to run concurrently with his federal sentence.
Moreover, the sentencing judge explained his reasons for refusing to order a concurrent sentence
in the hearing on appellant’s motion to reconsider. At this hearing, the sentencing judge stated
that he was not ordering a concurrent sentence because of his policy of always imposing an
active sentence within the guidelines and that he relied on the guidelines to ensure that he was
treating all defendants fairly. There would have been no need to explain this aspect of his
discretionary sentencing philosophy if the trial judge believed he had no power to consider and
decide whether or not to order concurrent sentences. If the trial judge really made the error that
appellant claims he made, it is difficult to understand why he did not deny appellant’s motion to
reconsider by stating expressly that he had no authority to grant it.
Finally, the trial judge explained for the record his consideration of appellant’s related
federal sentence and the role the federal sentence played in his sentencing decision. Indeed, the
judge made clear that the seven years of federal imprisonment was the reason he imposed a
sentence at the low end of the applicable sentencing guidelines. “I’m going to sentence you to
the low end of the guidelines because the seven years puts you above the maximum for the state
-5-
guidelines. So that will leave you with about sixteen years and that will put you about fourteen,
fifteen that you’ll have to pull.”
Appellant’s sentences were below the statutory maximum that the circuit court had the
lawful power to impose. Code §§ 18.2-10; 18.2-58; 18.2-91; 18.2-95. Because the full record
indicates that the sentencing judge correctly understood his discretion and sentenced appellant
within the lawful scope of that discretion, we believe there was no miscarriage of justice in this
case. We, therefore, decline to apply the ends of justice exception to Rule 5A:18. Appellant’s
convictions and sentences are affirmed.
Affirmed.
-6-
Humphreys, J., concurring.
Although I agree with the majority that Rule 5A:18 bars our consideration of this appeal,
I cannot join the majority opinion because I would follow our own jurisprudence and not
consider the ends-of-justice exception in this case. “In order to avail oneself of the
[ends-of-justice] exception, a defendant must affirmatively show that a miscarriage of justice has
occurred . . . .” Redman v. Commonwealth, 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)
(emphasis added). Far from affirmatively showing that a miscarriage of justice has occurred,
Scalf’s brief does not even assert that the ends-of-justice exception should apply. We have
repeatedly held that we “will not consider, sua sponte, an ends-of-justice argument under Rule
5A:18.” Widdifield v. Commonwealth, 43 Va. App. 559, 564, 600 S.E.2d 159, 162 (2004) (en
banc); see also George v. Commonwealth, 51 Va. App. 137, 655 S.E.2d 43 (2008); Roadcap v.
Commonwealth, 50 Va. App. 732, 742 n.3, 653 S.E.2d 620, 625 n.3 (2007). The majority’s
decision to entertain the possibility that the ends-of-justice exception may apply is unnecessary,
and, frankly, improper. Moreover, in addition to ignoring decades of Rule 5A:18 jurisprudence,
the majority addresses the merits of Scalf’s claim and issues what is essentially an advisory
opinion – something we may not do and in which I do not join. See Yap v. Commonwealth, 49
Va. App. 622, 630, 643 S.E.2d 523, 526 (2007). Thus, I concur only in the judgment affirming
the ruling of the trial court.
-7-