Grafmuller v. Commonwealth

PRESENT: Lemons, C.J., Goodwyn, Mims, and Roush, JJ., and Russell, Lacy and Millette,
S.JJ.
MICHAEL GRAFMULLER
OPINION BY
v. Record No. 150433 JUSTICE JANE MARUM ROUSH
November 5, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Michael Grafmuller (“Grafmuller”) appeals from the circuit court’s denial of his motion
for a new sentencing hearing prior to entry of an amended sentencing order correcting his
sentences on two charges for which the sentences originally exceeded the applicable statutory
maximums.
I. Facts and Proceedings
In 2008, Grafmuller was charged with (i) attempted carnal knowledge of a minor in
violation of Code § 18.2-63, (ii) indecent liberties with a minor in violation of Code § 18.2-370,
(iii) using a communications system to procure or promote certain sex offenses involving a
minor in violation of Code § 18.2-374.3, and (iv) solicitation to commit a felony in violation of
Code § 18.2-29. Grafmuller entered Alford pleas of guilty and was found guilty as charged.
In May 2009, the circuit court conducted a sentencing hearing and imposed sentences
upon Grafmuller. On the charge of attempted carnal knowledge of a minor, Grafmuller was
sentenced to 10 years of imprisonment, with eight years suspended. On the charge of using a
communications system to procure or promote certain sex offenses involving a minor,
Grafmuller was sentenced to 10 years, with five years suspended. In addition, Grafmuller was
sentenced to 10 years (with eight years suspended) on the indecent liberties with a minor charge
and five years (with four years suspended) on the solicitation to commit a felony charge. In
total, Grafmuller was sentenced to 35 years of incarceration, with 25 years suspended, for a total
time to serve of 10 years.
Grafmuller’s appeal of his sentence on the charge of using a communications system to
procure or promote certain sex offenses involving a minor to the Court of Appeals was
unsuccessful. Grafmuller v. Commonwealth, 57 Va. App. 58, 67, 698 S.E.2d 276, 281 (2010).
We refused Grafmuller’s appeal.
In 2014, Grafmuller, relying on Rawls v. Commonwealth, 278 Va. 213, 683 S.E.2d 544
(2009), filed a motion in the circuit court seeking a new sentencing hearing, arguing that his 10
year sentences for attempted carnal knowledge of a minor in violation of Code § 18.2-63 and use
of a communications system to procure or promote certain sex offenses involving a minor in
violation of Code § 18.2-374.3 were void ab initio because they exceeded the statutory maximum
of five years on each of the two charges. 1 Grafmuller argued that the attempted carnal
knowledge of a minor charge was a Class 6 felony. Similarly, with regard to the charge of use of
a communications system to procure or promote certain sex offenses involving a minor,
Grafmuller maintained that he was indicted and convicted under 18.2-374.3(B), a Class 6
felony. 2 The Commonwealth conceded that Grafmuller was convicted under Code § 18.2-
1
Because an order that is void ab initio may be attacked at any time, Grafmuller’s motion
filed in 2014 attacking his 2009 sentences was not untimely. An order that is void ab initio is “a
complete nullity and it may be impeached directly or collaterally by all persons, anywhere, at
any time, or in any manner.” Singh v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001)
(citation and internal quotation marks omitted). Consequently, Rule 1:1, which limits the
jurisdiction of a court to twenty-one days after the entry of the final order, does not apply to an
order which is void ab initio. Id.
2
A Class 6 felony, – at the time of Grafmuller’s offenses and today – carries a range of
sentencing of “a term of imprisonment of not less than one year nor more than five years, or in
2
374.3(B) and that Grafmuller’s sentences on both charges exceeded the statutory maximum, but
maintained that the circuit court could correct the errors by entering an amended sentencing
order without the need for a new sentencing hearing.
The circuit court denied Grafmuller’s motion for a new sentencing hearing and, on July 1,
2014, entered an amended sentencing order. Pursuant to that order, Grafmuller’s sentence on the
charge of attempted carnal knowledge of a minor was amended to five years, with three years
suspended. His sentence on the charge of using a communications system to procure or promote
certain sex offenses involving a minor was amended to five years, with no time suspended.
There was no change to the sentences imposed on the charges of indecent liberties with a minor
or solicitation to commit a felony, as they did not exceed the statutory maximums. Thus, under
the amended sentencing order, Grafmuller was sentenced to a total of 25 years of incarceration,
with 15 years suspended, for a total time to serve of 10 years. Grafmuller appeals the denial of
his motion for a new sentencing hearing. 3
II. Analysis
A. Standard of Review
The issue in this appeal is whether our holding in Rawls requires that a criminal
defendant who pled guilty – and thus was sentenced by a judge and not a jury – be granted a new
sentencing hearing when his original sentence exceeded the statutory maximum. This is a
question of law that we review de novo. See Farhoumand v. Commonwealth, 288 Va. 338, 342,
the discretion of the jury or the court trying the case without a jury, confinement in jail for not
more than 12 months and a fine of not more than $2,500, either or both.” Code § 18.2-10(f).
3
Grafmuller initially appealed to the Court of Appeals, which determined that it did not
have jurisdiction and transferred the appeal to this Court pursuant to Code § 8.01-677.1.
3
764 S.E.2d 95, 97 (2014); Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574
(2005).
B. Application of Rawls v. Commonwealth
In Rawls, we were presented with the question whether a defendant who has been
sentenced in excess of the statutorily prescribed range of punishment is entitled to a new
sentencing hearing.
Prior to Rawls, our jurisprudence had not been uniform in determining whether a
defendant who received an improper sentence was entitled to a new sentencing hearing. See 278
Va. at 218-21, 683 S.E.2d at 547-49. Additionally, “[i]n many instances, our jurisprudence
require[d] a court to speculate regarding how a jury would have fixed a defendant’s punishment
had the jury been properly instructed or had the jury properly applied the correct instruction.” Id.
at 218, 683 S.E.2d at 547.
Thus, in Rawls we adopted a bright-line rule that:
a sentence imposed in violation of a prescribed statutory range of punishment is
void ab initio because the character of the judgment was not such as the Court had
the power to render. Thus, a criminal defendant in that situation is entitled to a
new sentencing hearing. This common law rule of jurisprudence will eliminate
the need for courts to resort to speculation when determining how a jury would
have sentenced a criminal defendant had the jury been properly instructed or had
the jury properly followed correct instructions.
Id. at 221, 683 S.E.2d at 549 (citations, internal quotation marks, and alterations omitted). The
common law rule adopted in Rawls was “designed to ensure that all criminal defendants whose
punishments have been fixed in violation of the statutorily prescribed ranges are treated
uniformly without any speculation.” Id.
Despite the clarity of our holding in Rawls, we are now invited to create an exception.
The Commonwealth, noting that each case discussed in Rawls involved a jury sentence, argues
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that our holding in that case should be limited to sentences exceeding the statutory maximums
that were imposed by juries. The Commonwealth contends that the dispositive point made in
Rawls is that “in addressing an incorrect sentence, a court may not speculate about the sentence
that might have been imposed.” In this case, the Commonwealth maintains, there is no risk of
speculation: the same judge who sentenced Grafmuller in 2009 corrected his sentence in 2014.
Grafmuller argues that our rule in Rawls applies to “all criminal defendants whose
punishments have been fixed in violation of the statutorily proscribed ranges” and that there
should be no “exceptions for defendants improperly sentenced by judges rather than juries.” We
agree.
Our holding in Rawls was purposefully broad. We intended to end both the lack of
uniformity in our jurisprudence and the speculation about what sentence would have been
imposed had the sentencer not been mistaken about the maximum punishment provided by law.
Id. at 221, 683 S.E.2d at 549. Although the cases we discussed in Rawls each involved a jury
sentence, our holding was not limited to cases in which the jury imposed a sentence in excess of
the statutory maximum. The requirement was announced “to ensure that all criminal defendants
whose punishments have been fixed in violation of the statutorily prescribed ranges are treated
uniformly.” Id. (emphasis added). We decline the invitation presented by this case to create an
exception to this doctrine for defendants who were sentenced by a judge rather than a jury. Such
an exception would re-introduce to this area of the law both a lack of uniformity and a need for
speculation as to what the sentence would have been if the sentencer had not misapprehended the
statutory maximum. For example, if the original sentencing judge is no longer available to
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correct the sentence, the resentencing judge would be required to speculate about what sentence
the original judge would have imposed had he or she been aware of the proper sentencing range. 4
Furthermore, a defendant charged with a felony has a constitutional right and a statutory
right to be personally present during the trial. U.S. Const. amends. VI, XIV; Va. Const., art. I,
§§ 8, 11; Code § 19.2-259. The statutory phrase, “during the trial,” means “every stage of the
trial from his arraignment to his sentence, when anything is to be done which can affect his
interest.” Remington v. Commonwealth, 262 Va. 333, 360, 551 S.E.2d 620, 636 (2001) (quoting
Palmer v. Commonwealth, 143 Va. 592, 605, 130 S.E. 398, 402 (1925)). The constitutional
imperative is the same: “[A] defendant is guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence would contribute to the fairness
of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987).
We conclude that a resentencing hearing for a convicted felon who has been sentenced to
more than the maximum sentence allowed by law is critical to the outcome of the criminal
proceeding. The presence of the defendant would contribute to the fairness of the process of
correcting his sentence. Id. Accordingly, we hold that a defendant convicted of a felony has a
right to be present personally at a new sentencing hearing at which his or her sentence is
modified so as not to exceed the maximum sentence provided by law. This requirement applies
equally to sentences imposed by a jury and sentences imposed by a judge.
4
As the facts of both Rawls and this case demonstrate, years may pass before an
argument is made to the courts that the sentence as originally imposed exceeded the statutory
maximum. Rawls moved to vacate his sentence 12 years after it was imposed. 278 Va. at 215-
16, 683 S.E.2d at 546. The errors in Grafmuller’s sentences were raised after five years.
6
III. Conclusion
For the foregoing reasons, we will reverse the judgment of the circuit court denying
Grafmuller’s motion for a new sentencing hearing, and remand this case to the circuit court with
directions to re-sentence Grafmuller consistent with the holdings in this opinion.
Reversed and remanded.
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