Larry Joe Dargan, Jr. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Argued at Richmond, Virginia
LARRY JOE DARGAN, JR.
OPINION BY
v. Record No. 2239-96-3 JUDGE JERE M. H. WILLIS, JR.
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
UPON A REHEARING EN BANC
FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
Keary R. Williams, Judge
No brief or argument for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Convicted of possession of a weapon while an inmate in a
correctional facility, in violation of Code § 53.1-203(4), Larry
Joe Dargan, Jr., contends that the trial court erred (1) in
modifying his sentence more than twenty-one days after its
imposition and (2) in modifying his sentence without the
intervention of a jury. A divided panel of this Court reversed
the judgment of the trial court. See Dargan v. Commonwealth,
Record No. 2239-96-3, November 25, 1997 (unpublished). We stayed
the mandate of that decision and granted rehearing en banc. Upon
rehearing en banc, we affirm the judgment of the trial court.
Dargan was convicted in a jury trial of possession of a
weapon while an inmate in a correctional facility, in violation
of Code § 53.1-203(4). That crime is a Class 6 felony,
punishable by "a term of imprisonment of not less than one year
nor more than five years, or in the discretion of the jury . . .
confinement in jail for not more than twelve months and a fine of
not more than $2,500, either or both." Code § 18.2-10(f).
The trial court erroneously instructed the jury that the
punishment provided for Dargan's crime was a term of imprisonment
of not less than one year nor more than ten years, or, in the
discretion of the jury, confinement in jail for not more than
twelve months and a fine of not more than $2,500, either or both.
The jury fixed Dargan's punishment at imprisonment for ten
years. By final order entered August 30, 1996, the trial court
imposed that sentence.
By order entered October 28, 1996, the trial court ruled
that the jury had been instructed erroneously and that the
sentence imposed August 30, 1996 exceeded the term authorized by
law. Over Dargan's objection, it set aside five years of that
sentence and imposed a sentence of five years imprisonment.
"'[T]he imposition of [a] void sentence does not terminate
the jurisdiction of the [trial] court.'" Powell v. Commonwealth,
182 Va. 327, 340, 28 S.E.2d 687, 692 (1944) (citation omitted).
A trial court may correct a void or unlawful sentence at any
time. Id.
A court may impose a valid sentence in
substitution for one that is void, even
though service of the void sentence has been
commenced. Where the sentence imposed is in
excess of that prescribed by law, that part
of the sentence which is excessive is
invalid. A sentence in excess of one
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prescribed by law is not void ab initio
because of the excess, but is good insofar as
the power of the court extends, and is
invalid only as to the excess.
Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510-11
(1973) (citations omitted).
In Deagle, the jury had four sentencing alternatives
available. It chose two incompatible sentences. The Supreme
Court concluded that "[c]ommon sense and reason dictate that the
jury, if it had been required to choose between the two
punishments it fixed, would have imposed the greater, the
penitentiary sentence, and not the lesser, the fine." Id. at
306, 199 S.E.2d at 511. It held that a trial court may
substitute a lawful sentence for a sentence that is excessive by
deleting the excessive portion of the invalid sentence. Id. See
also Powell, 182 Va. at 340, 28 S.E.2d at 692 (a trial court may
impose a valid sentence in substitution for a void one even
though the defendant has begun serving the void sentence).
Dargan contends that this case is controlled by Hodges v.
Commonwealth, 213 Va. 316, 191 S.E.2d 794 (1972). However,
Hodges is legally and factually distinguishable. In explaining
the inapplicability of Hodges to the situation presented by this
case, the Supreme Court in Deagle said:
In both Hodges v. Commonwealth, 213 Va.
316, 191 S.E.2d 794 (1972), and Huggins v.
Commonwealth, 213 Va. 327, 191 S.E.2d 734
(1972), the penalty fixed by the jury was
death. After Furman v. Georgia, 408 U.S. 238
(1972), which rendered the sentences
pronounced on those verdicts invalid, we
declined to summarily reduce the death
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sentences of Hodges and Huggins to life
imprisonment as urged by the Attorney
General. For, as we noted in Hodges,
" . . . it would be sheer speculation
for us to conclude that, if death had not
been a permissible punishment, the jury would
have fixed the punishment at life
imprisonment. The jury might well have
agreed upon 99 years, as it did in the
Ferguson murder".
But the speculative element which was
present in Huggins and Hodges is not present
here.
From the verdicts we know that the jury
intended that Deagle be sentenced to serve
ten years in the penitentiary on each
indictment.
Id. at 306, 199 S.E.2d at 511 (quoting Hodges, 213 Va. at 321,
191 S.E.2d at 797).
The alternative sentences available in Hodges fell into
three categories: (1) death, (2) life imprisonment, and (3)
imprisonment for a term of years. The unavailability of
sentencing in one category did not render either other category
the automatic choice. In this case, the sentence imposed by the
jury fell within a single classification, a term of years. The
correct sentence imposed by the trial court fell within that
classification and, indeed, was encompassed within the sentence
imposed by the jury. By imposing a ten-year term, the jury
unquestionably intended that Dargan should serve at least five
years. Therefore, Deagle controls this case and the trial court
did not err in conforming the sentence to a term permitted by
law.
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Dargan contends that the modification of his sentence by the
trial court violated his constitutional right to have a jury fix
his sentence. We find no merit in this argument. Dargan was
tried and convicted by a jury which imposed upon him the sentence
that he now serves.
The judgment of the trial court is affirmed.
Affirmed.
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Elder, J., with whom Annunziata, J., joins, concurring.
I concur in the result but only because the sentence imposed
by the jury pursuant to the erroneous instruction was the maximum
term that would have been imposed under that instruction and the
time set aside by the trial court resulted in the maximum
sentence allowable by law. Because the jury imposed the maximum
sentence authorized by the erroneous instruction, the trial court
could ascertain by "[c]ommon sense and reason" what sentence the
jury would have imposed had it been properly instructed. Deagle
v. Commonwealth, 214 Va. 304, 306, 199 S.E.2d 509, 511 (1973).
However, if the jury had imposed any sentence under the erroneous
instruction other than the maximum, the court would have been
forced to resort to speculation to determine what the jury's
sentence would have been. In such a case, I would remand for
resentencing.
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Benton, J., with whom Fitzpatrick, C.J., and Coleman, J., join,
dissenting.
A jury convicted Larry Joe Dargan, Jr., of possession of a
weapon while an inmate in a correctional facility in violation of
Code § 53.1-203(4) and malicious wounding in violation of Code
§ 18.2-51. Based upon an erroneous instruction concerning the
penalty for the weapon possession conviction, the jury
recommended a prison sentence of ten years, which was the maximum
term stated in the instruction and is five years more than the
maximum term permitted for a violation of Code § 53.1-203(4).
See Code § 18.2-10(f). Based upon a proper instruction
concerning the penalty for malicious wounding, the jury sentenced
Dargan to ten years in prison, which is ten years less than the
statutorily authorized maximum penalty. See Code § 18.2-51; Code
§ 18.2-10(c). The issue presented on this appeal is whether the
trial judge or a jury should have resentenced Dargan when the
error was discovered more than twenty-one days after entry of the
conviction order. I believe Dargan is entitled to be resentenced
by a jury.
The right to trial by jury "is fundamental to the American
scheme of justice." Duncan v. Louisiana, 391 U.S. 145, 149
(1968); see Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d
729, 732 (1985). Furthermore, a properly instructed jury is
essential to a fair trial. See Shepperson v. Commonwealth, 19
Va. App. 586, 593, 454 S.E.2d 5, 9 (1995). See also People v.
Rone, 311 N.W.2d 835, 839 (Mich. Ct. App. 1981) (defendant's
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right to a jury trial "includes the right to a properly
instructed jury"); Herbert v. Travelers Indemnity Co., 193 So. 2d
330, 337 (La. Ct. App. 1966) (right to trial by jury implies
right to have all material evidence "be heard and passed on by a
properly instructed jury"). A jury that is affirmatively
misinformed as to the correct sentence range does not satisfy the
right to trial by jury.
"[J]uries cannot be allowed to speculate. It
is the function of the court to inform the
jury of the law by which its [sentencing]
verdict must be controlled. The purpose of
the instructions is to enable the jury to
understand and apply the law to the facts of
the case. The accused has a right to have a
jury pass upon the evidence under proper
instructions."
Rone, 311 N.W.2d at 839 (citations omitted). The trial judge's
erroneous instruction violated Dargan's right to a correctly
charged jury and impaired his right to trial by jury.
In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509
(1973), the jury convicted the defendant of two felony offenses.
For each offense, the judge instructed the jury on the statutory
range of four separate sentencing options.
Under the statute the jury had four
alternatives available in fixing Deagle's
punishment. These were: (1) to impose a
penitentiary sentence of not less than one
nor more than twenty years; (2) to fix
Deagle's punishment at a jail sentence not
exceeding twelve months and a fine not
exceeding $1,000; (3) to impose a jail
sentence of not more than twelve months; or
(4) to impose a fine of not more than $1,000.
Id. at 305, 199 S.E.2d at 511. For each offense, the jury chose
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two penalties, a penitentiary sentence and a fine, which were not
compatible under the statute. Id. Significantly, however, the
judge in Deagle had "correctly instructed [the jury] regarding
the punishment which it might impose upon conviction" for each
offense. Id. at 304, 199 S.E.2d at 510.
Because the Deagle jury was correctly instructed, the
Supreme Court's decision upholding the trial judge's remedy for
the incompatible sentences turned upon the Court's determination
of the jury's intent in rendering the verdict. No speculation
was required to conclude that the jury wanted to impose two units
of punishment because the jury, in fact, had rendered those
verdicts based on a proper instruction of the statutory range of
punishment. Thus, the Supreme Court could rule with confidence
"[f]rom the verdicts . . . that the jury intended that Deagle be
sentenced to serve ten years in the penitentiary on each
indictment . . . [and] to pay a fine of $1,000 on each
indictment." Id. at 306, 199 S.E.2d at 511. The Supreme Court
also had to decide whether the two units of punishment that the
jury recommended for each conviction could be severed based upon
the finding of the jury's intent. Concluding that they could,
the Supreme Court noted that "[c]ommon sense and reason dictate
that the jury, if it had been required to choose between the two
punishments it fixed, would have imposed the greater, the
penitentiary sentence, and not the lesser, the fine." Id. In
other words, the Court approved the trial judge's decision to
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eliminate the entirety of one of two specific sentences imposed.
That rationale is inapplicable in this case. Unlike in
Deagle, the judge at Dargan's trial erroneously instructed the
jury on the statutorily permissible range of sentences.
Consequently, the jury operated upon an invalid premise (the
improper sentence range) and rendered a sentence that bears no
connection to the permissible statutory punishment. "The fact
that the jury . . . reached its conclusions [on the weapons
sentence] upon the application of an erroneous legal principle
invalidates the [sentencing] verdict[]." Shepperson, 19 Va. App.
at 593, 454 S.E.2d at 9. Thus, we can draw no valid or logical
conclusions of the jury's intent from the sentence that the jury
recommended and the trial judge imposed at Dargan's trial.
Based upon the erroneous instruction, the jury may have
concluded that the legislature deemed the weapons offense to be a
graver offense than it is. We have no basis to logically infer
that the jury, if properly instructed that the offense was not
one punishable by ten years in prison, would have sentenced
Dargan to the statutory maximum of five years in prison. We
cannot know whether the jury may have concluded that the ten-year
sentence in the related malicious wounding conviction would
justify an identical sentence in the weapons conviction perhaps
to facilitate concurrent sentences. We cannot possibly determine
how and through what process the jury arrived at its sentence
when the jury was not properly instructed. We would doubly
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speculate to reach such a conclusion and then assume that a
properly instructed jury would have derived its sentence through
the same process. "[T]o hypothesize a . . . verdict that was
never in fact rendered - no matter how inescapable the findings
to support that verdict might be - would violate the jury-trial
guarantee." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).
Indeed, the jury's sentences at Dargan's trial tend to
refute the majority's belief that the jury would have imposed the
maximum sentence. The jury did not sentence Dargan to the
statutory maximum sentence that it could have imposed on the
malicious wounding offense. We can only conjecture what
considerations of the evidence influenced the jury and factored
into the jury's sentencing decision. "[J]uries are not bound by
what seems inescapable logic to judges." Morissette v. United
States, 342 U.S. 246, 276 (1952). The truism that the majority
constructs from Deagle, that the jury would have nonetheless
given the maximum allowed sentence, is based in part on a premise
that does not exist in this case, viz. that the jury was properly
instructed.
Furthermore, even if we ignore the judge's erroneous
instruction, a finding of the jury's intent from the sentence
alone requires in this case, unlike in Deagle, sheer speculation.
The jury's sentence of Dargan to ten years in prison was an
indivisible unit of punishment and not susceptible to parsing.
In Deagle, the ten-year penitentiary sentence the jury expressly
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determined to impose was a unit of punishment authorized by
statute. The fine that the jury imposed was also a statutorily
authorized unit of punishment. Thus, in reaching its "common
sense" solution in Deagle, the trial judge imposed an intact unit
of punishment from a statutorily authorized punishment that the
jury had selected.
The five-year sentence the trial judge imposed on Dargan is
not a unit of punishment the jury expressly imposed. Thus,
neither the trial judge nor this Court is able to determine
whether the jury necessarily would have imposed a five-year
sentence if properly instructed. The trial judge could only
speculate that the unlawfully excessive verdict could be
corrected by merely reducing it to the statutorily permissible
maximum period of imprisonment. See, e.g., Hodges v.
Commonwealth, 213 Va. 316, 320-21, 191 S.E.2d 794, 797 (1972)
(holding that when a sentence of death was void, the Court could
not speculate that the jury would have fixed punishment at life
in prison, the maximum possible term of imprisonment, rather than
a term of years). In Hodges and Huggins v. Commonwealth, 213 Va.
327, 191 S.E.2d 734 (1972), the Supreme Court recognized that
even a properly instructed jury's verdict cannot be summarily
reduced to the "lawful maximum sentence" where the Court is
required to speculate that the jury would have done so. Id. at
328, 191 S.E.2d at 735-36.
Dargan's right to a jury trial "requires more than appellate
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speculation about a hypothetical jury's action." Sullivan, 508
U.S. at 280. The majority's conclusion that a properly
instructed jury would have sentenced Dargan to the maximum term
allowable is not only speculative but has no bearing on the
question whether Dargan was denied the right to have a properly
instructed jury make the sentencing decision.
In Virginia, when the court sits without a
jury, the trial judge both tries the issue of
guilt and fixes the penalty; when the accused
demands a jury, the jury performs both
functions. The right to have the jury
perform both functions is a part of the right
of trial by jury.
Huggins, 213 Va. at 328, 191 S.E.2d at 736. "'Trial by jury is a
sacred right, and should be sedulously guarded.'" Supinger v.
Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815 (1998) (citation
omitted). "[T]he right to a jury trial very likely serves its
intended purpose of making judicial or prosecutorial unfairness
less likely." Duncan, 391 U.S. at 158. "The constitution does
not allow an appellate court to arrogate to itself a function
that the defendant, under the [Constitution], can demand be
performed by a jury." Rose v. Clark, 478 U.S. 570, 593 (1986)
(Blackmon, J., dissenting).
Because a jury convicted Dargan and determined his
punishment upon improper instructions, Dargan is entitled to have
a properly instructed jury reconsider his punishment.
Under our Constitution the right of trial by
jury is assured in criminal cases. And where
the defendant does not waive his right to
trial by jury, the jury determines his guilt
or innocence and, if guilty, ascertains his
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punishment.
Deagle, 214 Va. at 305, 199 S.E.2d at 511 (citation omitted).
Therefore, I would reverse the trial judge's ruling and remand
this case for a new sentencing hearing before a jury on the
conviction of possessing a weapon while an inmate in a
correctional facility in violation of Code § 53.1-203. See Code
§ 19.2-295.1. See also Davis v. Commonwealth, 17 Va. App. 666,
675, 440 S.E.2d 426, 432 (1994).
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