Commonwealth of Virginia v. Tremon Antonio Wimbush ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Powell
Argued at Richmond, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0085-10-3 JUDGE ROBERT P. FRANK
NOVEMBER 30, 2010
TREMON ANTONIO WIMBUSH
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
David A. Melesco, Judge
Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
Cuccinelli, II, Attorney General, on briefs), for appellant.
(Andrea C. Long, on brief), for appellee.
The Commonwealth, pursuant to Code § 19.2-398(C), appeals an order in which the trial
court sentenced Tremon Antonio Wimbush (Wimbush), appellee, to twenty years incarceration for
malicious wounding, 100 years incarceration for first-degree murder, and three years incarceration
for each of two counts of use of a firearm in the commission of the two felonies. The
Commonwealth contends the trial court erred in not imposing the mandatory five-year sentence for
a second conviction of use of a firearm in the commission of a felony pursuant to Code § 18.2-53.1.
For the reasons stated, we agree with the Commonwealth and reverse the judgment of the trial court
as to the second conviction of use of a firearm and remand for re-sentencing on that count.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND
Appellee shot a pistol from his car at a group of people gathered on the front porch of a
residence, killing Lotoya Hubbard and wounding Eric Ferguson. The two counts of use of a firearm
under Code § 18.2-53.1 arose from the murder and the maiming charges.
Appellee was found guilty of all four indictments and was sentenced on December 21, 2009
to the terms stated above.
On December 28, 2009 and January 8, 2010, the Commonwealth’s attorney wrote the trial
court, indicating that Code § 18.2-53.1 mandates a five-year sentence because the court convicted
Wimbush of a second offense of use of a firearm in the commission of a felony. The
Commonwealth asked for re-sentencing. The trial court summarily denied the Commonwealth’s
request. This appeal follows.
ANALYSIS
The only issue before us is whether Code § 18.2-53.1 requires a mandatory five-year
sentence for appellee’s second conviction of use of a firearm.
Code § 18.2-53.1 states in part:
Violation of this section shall constitute a separate and distinct
felony and any person found guilty thereof shall be sentenced to a
mandatory minimum term of imprisonment of three years for a
first conviction, and to a mandatory minimum term of five years
for a second or subsequent conviction under the provisions of this
section.
This very issue has been addressed in a number of appellate decisions from this Court
and the Supreme Court of Virginia.
In Ansell v. Commonwealth, 219 Va. 759, 250 S.E.2d 760 (1979), the Supreme Court of
Virginia addressed whether the enhanced penalty provisions of Code § 18.2-53.1 applied to three
separate offenses committed on the same day and tried together. Ansell was convicted of two
counts of robbery, one count of attempted robbery, and three counts of use of a firearm in the
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commission of the primary offense. Id. at 761, 250 S.E.2d at 761. He was sentenced, in addition
to the primary felonies, to one year for the first indictment and three years each on the second
and third indictments under Code § 18.2-53.1, as was the law in effect at that time. Id. The
Supreme Court affirmed the enhanced penalties, concluding that Code § 18.2-53.1 is intended to
“deter violent criminal conduct” and rejected appellant’s argument that the prior conviction must
precede the commission of the primary offense. Id. at 763, 250 S.E.2d at 762.
The Supreme Court re-visited this issue in Flythe v. Commonwealth, 221 Va. 832, 275
S.E.2d 582 (1981). 1 Flythe was convicted of two counts of attempted murder and two counts of
use of a firearm in each of the attempts, each offense occurring at the same time. The Court
ruled:
The enhanced punishment provided by the statute is not
geared to whether an accused has committed one or more acts.
Instead, it is geared to the number of actual convictions suffered by
an accused. Where several convictions result from the same act,
each conviction is separate and distinct from the other. It is the
identity of the offense and not of the act which is dispositive. We
have held that if two or more persons are injured by a single
criminal act, this results in a corresponding number of distinct
offenses.
In Ansell we held that the purpose of Code § 18.2-53.1 is to
deter violent criminal conduct and that the application of the
increased penalty provision of the statute to a subsequent offense
without an intervening conviction was proper. We rejected
Ansell’s argument for the same reason that we now reject Flythe’s.
Both cases involved separate indictments for separate crimes
which were tried jointly with the defendant receiving successive
sentences. Any conviction that follows a first conviction is a
subsequent conviction within the purview of Code § 18.2-53.1.
Id. at 835, 275 S.E.2d at 584 (citations omitted).
1
The Supreme Court of Virginia, in Bennett v. Commonwealth, Record No. 092085, by
unpublished order decided October 8, 2010, reaffirmed its holding in Flythe. This case was held
in abeyance until the Bennett order was released.
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The Supreme Court again addressed the same issue in In re Commonwealth of Virginia,
229 Va. 159, 326 S.E.2d 695 (1985).
Because the statute’s purpose is “to deter violent criminal
conduct,” Ansell v. Commonwealth, 219 Va. 759, 763, 250 S.E.2d
760, 762 (1979), it provides an “inflexible” penalty. Holloman v.
Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980).
Clearly, therefore, by prescribing a mandatory sentence, the
General Assembly has divested trial judges of all discretion
respecting punishment. See Parrigen v. Long, 145 Va. 637,
640-41, 134 S.E. 562, 562-63 (1926).
Id. at 162-63, 326 S.E.2d at 697.
In Lilly v. Commonwealth, 50 Va. App. 173, 187-88, 647 S.E.2d 517, 524 (2007), this
Court observed:
The legislative development of the mandatory minimum
sentence . . . produced a floor below which no judge or jury could
go. A trial court’s authority to depart downward below a
mandatory minimum is “nonexistent,” Mouberry v.
Commonwealth, 39 Va. App. 576, 585, 575 S.E.2d 567, 571
(2003), because the legislative purpose was to divest trial judges
and juries of “all discretion” to sentence below the threshold
minimum, In re Commonwealth of Virginia, 229 Va. 159, 163, 326
S.E.2d 695, 697 (1985).
Because we conclude that the second conviction of use of a firearm was a second or
subsequent offense under Code § 18.2-53.1, the trial court was required to impose a five-year
sentence. In failing to do so, it erred. We therefore reverse the trial court’s sentence for the
second firearm conviction and remand for the imposition of the mandatory five-year term of
imprisonment.
Reversed and remanded.
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