Neal Joseph Jackson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
NEAL JOSEPH JACKSON
v. Record No. 0514-95-1 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA APRIL 9, 1996
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Russell I. Townsend, Judge
Hugh E. Black, III (John W. Brown, P.C., on
brief), for appellant.
Richard H. Rizk, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Appellant, Neal J. Jackson, pled guilty to one count of
grand larceny, three counts of abduction, two counts of using a
firearm in the commission of a felony, two counts of robbery, and
one count of breaking and entering with intent to rob. The court
accepted Jackson's pleas and found him guilty. Sentencing
guidelines, prepared in anticipation of the sentencing hearing,
set the range of punishment at thirty-two years and three months
to life, with a mid-point of fifty-one years and three months.
The Commonwealth requested a life sentence.
The court sentenced Jackson to twenty years suspended on the
grand larceny, ten years suspended on each of the three
abductions, and five years, active mandatorily, on each of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
two firearms convictions. The court then turned to the sentences
to be imposed for the two robbery convictions and the conviction
for breaking and entering with the intent to rob. Believing that
each of the remaining sentences carried a maximum of life
imprisonment, the court stated that, based on Jackson's prior
record, a life sentence might be appropriate. However, it chose
not to impose the maximum allowable sentence, stating it would
impose active time on one of the robbery charges and suspend "a
lot" of the other time. The court sentenced Jackson to fifty
years suspended on each of the robbery convictions. Immediately
thereafter, the court realized that the breaking and entering
with intent to rob conviction carried a twenty year rather than a
life sentence. The court noted its mistake and its intention to
impose a fifty year active sentence and amended the sentence for
the second robbery conviction to fifty years active. The court
then sentenced Jackson to twenty years suspended on the breaking
and entering with intent to rob conviction.
On appeal, Jackson contends (1) the court's modification of
the sentence on the second robbery conviction violated his due
process rights and twice placed him in jeopardy; and (2) the
court had no authority to modify the sentence. We disagree and
affirm Jackson's conviction.
I
"[P]rouncement of a sentence does not possess the finality
of a verdict of acquittal for double jeopardy purposes and . . .
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imposition of a particular sentence is not equivalent to a
judgment of acquittal as to all greater sentences." Nelson v.
Commonwealth, 12 Va. App. 835, 838, 407 S.E.2d 326, 328 (1991)
(quoting United States v. Lundien, 769 F.2d 981, 985 (4th Cir.
1985), cert. denied, 474 U.S. 1064 (1986)); United States v.
DiFrancesco, 449 U.S. 117, 133-36 (1980). A defendant is not
subjected to multiple punishment by a sentence enhanced within
seconds of the initial sentencing. See Nelson, 12 Va. App. at
839, 407 S.E.2d at 328-29 (sentence enhanced fifteen minutes
after initial sentencing does not violate double jeopardy
protections); Lundien, 769 F.2d at 985 (sentence enhanced after
defendant had served five days of sentence does not violate
double jeopardy protections). Accordingly, Jackson's contention
that the trial court's sentence modification violated his
protections against double jeopardy is without merit.
A defendant's due process rights are denied when a sentence
is enhanced "because of the vindictiveness or other plainly
improper motive of the trial court." Nelson, 12 Va. App. at 839,
407 S.E.2d at 329 (quoting Lundien, 769 F.2d at 986-87).
Likewise, a sentence enhanced after a defendant had served so
much of it that his "expectations as to its finality ha[d]
crystallized" may also deny a defendant due process. Id. The
record here shows the court intended throughout the sentencing
hearing to impose the sentence it ultimately set. Nothing
suggests the court acted vindictively or with an otherwise
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improper motive. Moreover, when the court corrected itself
seconds after its initial mistake, Jackson clearly had served
none of his sentence. His claim that he already had formed a
"crystallized expectation" of the sentence's finality by the time
the court modified it is without merit, particularly in light of
the law that "[a] court of record speaks only through its written
orders." E.g., Robertson v. Superintendent of the Wise
Correctional Unit, 248 Va. 232, 235 n.*, 445 S.E.2d 116, 117 n.*
(1994) (citations omitted); Guba v. Commonwealth, 9 Va. App. 114,
118, 383 S.E.2d 764, 767 (1989). Accordingly, we find the
court's modification of his sentence given the facts of this case
did not deny Jackson due process.
II
Since a court of record speaks only through its written
orders, id., the trial court's oral pronouncement of sentence did
not bind it to the procedures it would have had to follow to
modify a written order. Cf. Code § 8.01-428(b) (addressing
correction of clerical errors); Rule 1:1 (allowing court to
modify final judgments within twenty-one days of entry).
Accordingly, Jackson's contention that the court did not have
authority to correct its oral mistake is without merit, and his
conviction is affirmed.
Affirmed.
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