                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


KEVIN DARNELL WILLIAMS
                                           MEMORANDUM OPINION * BY
v.   Record No. 1114-00-2                   JUDGE ROBERT P. FRANK
                                                JUNE 12, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Margaret P. Spencer, Judge

           Joseph R. Winston, Special Appellate Counsel
           (Public Defender Commission, on brief), for
           appellant.

           John H. McLees, Jr., Senior Assistant
           Attorney General (Mark L. Earley, Attorney
           General, on brief), for appellee.


     Kevin Darnell Williams (appellant) was convicted by a jury of

robbery, use of a firearm, and possession of a firearm by a felon.

On appeal, he contends the trial court erred in sentencing him to

a sentence greater than that fixed by the jury on the robbery

count.   We agree.   We, therefore, vacate the sentence for robbery

and remand for resentencing.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           I.     BACKGROUND 1

     A jury, in a bifurcated trial, found appellant guilty of

robbery, use of a firearm in the commission of a felony, and

possession of a firearm by a felon.       At the conclusion of the

sentencing phase, the jury fixed appellant's punishment for the

robbery conviction at five years.

     After considering a pre-sentence report, the trial court

sentenced appellant on the robbery conviction to eight years in

prison with three years suspended for a period of fifteen years

conditioned on good behavior and supervised probation.         The

sentences on the remaining felonies were in accordance with the

jury's verdict.   At trial, appellant did not object to the

sentence.

                            II.     ANALYSIS

     Appellant contends the trial court did not have authority to

increase the penalty fixed by the jury.          While this issue was not

raised at the trial court, the Commonwealth, in its brief,

conceded that this issue should not be procedurally defaulted

under Rule 5A:18.   We agree.

                 "The Court of Appeals will not consider
            an argument on appeal which was not
            presented to the trial court." Ohree v.
            Commonwealth, 26 Va. App. 299, 308, 494
            S.E.2d 484, 488 (1998) (citing Jacques v.
            Commonwealth, 12 Va. App. 591, 593, 405
            S.E.2d 630, 631 (1991)). However, Rule

     1
       We do not recite the facts of the offense because such
recitation is not necessary for our analysis.

                                  - 2 -
             5A:18 provides for consideration of a ruling
             by the trial court that was not objected to
             at trial "to enable the Court of Appeals to
             attain the ends of justice." "'The ends of
             justice exception is narrow and is to be
             used sparingly'" when an error at trial is
             "'clear, substantial and material.'" Redman
             v. Commonwealth, 25 Va. App. 215, 220-21,
             487 S.E.2d 269, 272 (1997) (quoting Brown v.
             Commonwealth, 8 Va. App. 126, 132, 380
             S.E.2d 8, 10-11 (1989)). "In order to avail
             oneself of the exception, a defendant must
             affirmatively show that a miscarriage of
             justice has occurred, not that a miscarriage
             might have occurred." Id. at 221, 487
             S.E.2d at 272 (citing Mounce v.
             Commonwealth, 4 Va. App. 433, 436, 357
             S.E.2d 742, 744 (1987)).

Legette v. Commonwealth, 33 Va. App. 221, 224, 532 S.E.2d 353,

354 (2000).

        In the present case, we find manifest injustice because

appellant was sentenced to a term in excess of that fixed by the

jury.     We, therefore, apply the "ends of justice" exception to

Rule 5A:18 and address the merits of the appeal.

        In Batts v. Commonwealth, 30 Va. App. 1, 515 S.E.2d 307

(1999), we wrote:

                  We recognize that Virginia law has
             historically maintained a clear distinction
             between the roles played by judge and jury in
             criminal sentencing. See Duncan v.
             Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d
             392, 394 (1986). "Under the statutory
             scheme, the jury determines the guilt or
             innocence of the accused. If the jury finds
             that he is guilty, it then 'ascertains' or
             'fixes' the maximum punishment in accordance
             with contemporary community values and within
             the limits established by law." Id.
             (emphasis added). "After
             conviction, . . . the court may suspend
                                 - 3 -
           imposition of sentence or suspend the
           sentence in whole or part . . . ." Code
           § 19.2-303.

                "'[T]he punishment as fixed by the jury
           is not final or absolute, since its finding
           on the proper punishment is subject to
           suspension by the trial judge, in whole or in
           part, on the basis of any mitigating facts
           that the convicted defendant can marshal.
           The verdict of the jury is the fixing of
           maximum punishment which may be
           served. . . .'" Duncan, 2 Va. App. at 345,
           343 S.E.2d at 394 (quoting Vines v. Muncy,
           553 F.2d 342, 349 (4th Cir. 1977)) (emphasis
           added).

                Clearly, the trial judge may reduce a
           sentence but may not exceed the "maximum
           punishment" fixed by the jury.

Id. at 15-16, 515 S.E.2d at 314-15.

     On brief, the Commonwealth agrees the trial court can only

increase the penalty fixed by the jury under the provisions of

Code §§ 18.2-10 and 19.2-295.2.   However, the Commonwealth

contends the trial court added the post-release supervision under

these two provisions.   Essentially, the Commonwealth argues the

trial court sentenced appellant to the five years fixed by the

jury and then imposed a three-year post-release supervision

period.   Neither the sentencing order nor the transcript of the

sentencing proceeding reflects that the trial court referred to

post-release supervision or to Code §§ 18.2-10 and 19.2-295.2.

     Further, under Code § 19.2-295.2 "[t]he period of

[post-release] supervision shall be established by the court;

however, such period shall not be less than six months nor more

                               - 4 -
than three years."   Code § 19.2-295.2.   The trial court suspended

three of the eight-year sentence for a period of fifteen years.

The fifteen years far exceeded the three-year maximum period of

post-release supervision established in Code §§ 18.2-10 and

19.2-295.2.

     The jury fixed appellant's penalty at five years.     The trial

court then added three years to the jury's sentence and then

suspended three of those years.   While the trial court may have

intended to impose an additional three-year post-release

supervision, the record does not reflect that disposition.

Finding that the trial court erred in imposing a sentence in

excess of the time fixed by the jury, we vacate the sentencing

order as it applies to the robbery conviction and remand for a

sentencing hearing consistent with this opinion.   The trial court,

on remand, may or may not impose post-release supervision. 2

     For these reasons, we, therefore, vacate the sentencing

order for the robbery conviction and remand for a new sentencing

hearing.

                                          Vacated and remanded.




     2
       The Commonwealth concedes this case should be remanded
"for the entry of a corrected order explicitly invoking the
provisions of Code §§ 18.2-10(g) and 19.2-295.2." We cannot
remand on such a narrow basis since the trial court must
determine if post-release supervision is appropriate. For
offenses committed between January 1, 1995 and June 30, 2000,
post-release supervision was discretionary.
                              - 5 -
