Jeffrey Austin Barron v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith ∗
Argued at Salem, Virginia
JEFFREY AUSTIN BARRON
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1798-02-3 JUDGE RUDOLPH BUMGARDNER, III
JUNE 24, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY
Ray W. Grubbs, Judge
George F. Marable, III, for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Jeffrey Austin Barron appeals his convictions for
abduction, Code § 18.2-47, and carjacking, Code § 18.2-58.1(B).
He maintains double jeopardy bars his conviction of abduction
because the detention of the victim was incidental to and an
essential part of the carjacking. He argues the victim was the
"tool" used to seize the car. He also maintains the sentence
imposed for abduction was improper. We conclude the two
convictions were appropriate and affirm them. The Commonwealth
∗
Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
concedes the trial court sentenced the defendant to a term
greater than the maximum permitted.
The victim was a taxi driver dispatched to the Montgomery
Regional Hospital where she picked up the defendant. As they
left the hospital, the defendant put a gun to her head and
ordered her to drive where he told her to go. They started
toward Christiansburg but eventually drove into Craig County
before returning to Montgomery County. At some point, the
defendant took over as driver and held the victim as a passenger
against her will. The defendant released the victim on the side
of the road in Montgomery County and drove off in the taxi.
The carjacking statute specifically provides, "The
provisions of this section shall not preclude the applicability
of any other provision of the criminal law of the Commonwealth
which may apply to any course of conduct which violates this
section." Code § 18.2-58.1(C). By enacting this language, "the
General Assembly made it clear that conviction for the offense
of carjacking does not prohibit the Commonwealth from pursuing
any other crime an offender commits while the carjacking is in
progress." Brown v. Commonwealth, 37 Va. App. 507, 518, 559
S.E.2d 415, 420-21 (2002). Where the legislative intent is
clear, and multiple sentences were intended, there is no viable
double jeopardy claim. Turner v. Commonwealth, 221 Va. 513,
530, 273 S.E.2d 36, 47 (1980) (Code § 18.2-53.1).
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[O]ne accused of abduction by detention and
another crime involving restraint of the
victim, both growing out of a continuing
course of conduct, is subject upon
conviction to separate penalties for
separate offenses only when the detention
committed in the act of abduction is
separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14
(1985) (abduction and rape). See also Cardwell v. Commonwealth,
248 Va. 501, 511, 450 S.E.2d 146, 152 (1994) (abduction and
robbery); Abraham v. Commonwealth, 32 Va. App. 22, 27-28, 526
S.E.2d 277, 279 (2000) (abduction, robbery, and carjacking).
The trial court specifically found the detention "was more
than merely incidental to the carjacking." The evidence
supports that finding. The defendant accomplished the
carjacking when he took control of the car at gunpoint and
ordered the victim to drive as he directed. He detained and
transported the victim for several hours. After they returned
to Montgomery County, the defendant was the driver and the
victim his captive passenger. At that point alone, the
detention was completely separate from the restraint employed to
seize control of the car. The acts constituting abduction and
carjacking were separate and distinct.
The Commonwealth conceded the defendant was sentenced to
fifteen years for abduction when the maximum punishment was ten
years. Code §§ 18.2-10 and -47. "Where the sentence imposed is
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in excess of that prescribed by law, that part of the sentence
which is excessive is invalid." Deagle v. Commonwealth, 214 Va.
304, 305, 199 S.E.2d 509, 510 (1973) (trial court properly
imposed sentence and not fine where jury improperly punished
defendant with both). We hold that five years of the
fifteen-year sentence is void and order the sentence reduced to
ten years. Brown v. Commonwealth, 26 Va. App. 758, 763, 497
S.E.2d 147, 150 (1998) (appellate court may reduce fine to what
legislature authorized).
Accordingly, we affirm the convictions of abduction and
carjacking but reduce the sentence for abduction to ten years.
Affirmed as modified.
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