Gregory Eugene Coleman v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
GREGORY EUGENE COLEMAN
v. Record No. 1331-94-2 MEMORANDUM OPINION *
BY JUDGE ROSEMARIE P. ANNUNZIATA
COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Robert J. Wagner (Wagner & Wagner, on brief), for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S.
Gilmore, III, on brief), for appellee.
Gregory Eugene Coleman (appellant) was convicted by a jury
of felony petit larceny in violation of Code §§ 18.2-96 and
19.2-297. 1 On appeal, appellant argues that the trial court
erred by (1) refusing to bifurcate his trial pursuant to Code
§ 19.2-295.1, and (2) allowing the Commonwealth to present
* Pursuant of Code § 17.116.010 this opinion is not
designated for publication.
1
Former Code § 19.2-297 provided:
When a person is convicted of petit larceny,
and it is alleged in the indictment on which
he is convicted, and admitted, or found by
the jury or judge before whom he is tried,
that he has been before sentenced in the
United States for any larceny or any offense
deemed to be larceny by the law of the
sentencing jurisdiction, he shall be confined
in jail not less than thirty days nor more
than twelve months; and for a third, or any
subsequent offense, he shall be guilty of a
Class 6 Felony.
Code § 19.2-297 was repealed in 1994. Felony petit larceny now
is included in Code § 18.2-104.
evidence of his prior larceny convictions. We disagree and
affirm the conviction.
I.
Appellant was arrested on March 16, 1994 and charged with
felony petit larceny for stealing two leather wallets from the
J.C. Penney department store, having been at least twice before
sentenced for larceny offenses.
The day of trial, July 7, 1994, the court asked the
prosecutor if he intended to proceed with a bifurcated trial. 2
The prosecutor stated that he did not. Both the trial court and
appellant's counsel believed that bifurcation was required in
felony cases. Appellant's counsel added, however, that he
"wouldn't have any objection" to a unitary trial. Counsel for
the Commonwealth and appellant advised the court that neither
would have evidence to present at a sentencing phase, beyond that
which would be presented during the guilt phase of the trial.
The court ruled that the guilt and sentencing phases of the trial
would be heard "at the same time," to which appellant's counsel
responded, "[f]air enough."
Appellant's counsel also argued pretrial that because he had
not received certified copies of appellant's prior larceny
conviction orders from the Commonwealth fourteen days before
2
Code § 19.2-295.1, effective July 1, 1994, provides in
pertinent part that, "[i]n 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."
2
trial, the Commonwealth was barred by Code § 19.2-295.1 from
introducing the orders. The court ruled that proof of prior
larceny convictions was an element of the offense and the
Commonwealth was not barred from introducing orders in its case
to establish that element. At trial, the Commonwealth introduced
certified copies of conviction orders for two petit larcenies and
one grand larceny.
II.
The provision in Code § 19.2-295.1 that a "separate
proceeding limited to the ascertainment of punishment shall be
heard as soon as practicable before the same jury" is not a
jurisdictional requirement. "[T]he use of 'shall' in a statute
requiring action by a public official, is directory and not
mandatory unless the statute manifests a contrary intent."
Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638
(1994). See Commonwealth v. Rafferty, 241 Va. 319, 324, 402
S.E.2d 17, 20 (1991).
Code § 19.2-295.1 contains no limiting or prohibitory
language that prevents the circuit court from allowing a unitary
3
trial under the circumstances of this case. "Absent such
limiting language, the provision at issue is directory and
procedural, rather than mandatory and jurisdictional."
Jamborsky, 247 Va. at 511, 442 S.E.2d at 639.
3
Cf. Rule 1:1 which provides that "[a]ll final judgments,
orders, and decrees, irrespective of terms of court, shall remain
under the control of the trial court and subject to be modified,
vacated, or suspended for twenty-one days after the date of
entry, and no longer." (Emphasis added.)
3
At trial, appellant voiced no objection to a unitary
trial, and in fact acquiesced in the court's proposal to hold the
two stages of the trial "at the same time." Thus, appellant is
barred on appeal from challenging the court's failure to hold a
bifurcated trial. Rule 5A:18. See Boblett v. Commonwealth, 10
Va. App. 640, 650-51, 396 S.E.2d 131, 136 (1990). Moreover, the
record does not reflect any reason to invoke the good cause or
ends of justice exceptions to Rule 5A:18.
III.
The requirement in Code § 19.2-295.1 that the Commonwealth
provide copies of conviction orders fourteen days before trial is
inapplicable in this case. Appellant was indicted for felony
petit larceny under Code § 19.2-297 and it is this Code section
which governs. That section requires the Commonwealth to allege
and prove at least two prior larcenies or like offenses in order
to elevate the charged larceny from a misdemeanor to a felony.
See Brown v. Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 242
(1983). Proof of prior convictions thus constitutes an element
of the offense.
As Code § 19.2-295.1 did not govern the introduction of
4
conviction orders in this case, the trial court properly
admitted the orders into evidence.
The decision of the trial court is affirmed.
4
Code § 19.2-295.1 provides that "[t]he Commonwealth shall
provide to the defendant fourteen days prior to trial photocopies
of certified copies of the defendant's prior criminal convictions
which it intends to introduce at sentencing." (Emphasis added.)
4
Affirmed.
5