                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, AtLee and Senior Judge Frank
UNPUBLISHED


              Argued at Norfolk, Virginia


              MICHAEL DEWAYNE CULBERSON
                                                                             MEMORANDUM OPINION* BY
              v.      Record No. 2006-15-1                                   JUDGE MARY GRACE O’BRIEN
                                                                                   MARCH 21, 2017
              COMMONWEALTH OF VIRGINIA


                                  FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                                Bonnie L. Jones, Judge

                                Joshua A. Goff (Goff Voltin, PLLC, on brief), for appellant.

                                Eugene Murphy, Senior Assistant Attorney General (Mark R.
                                Herring, Attorney General, on brief), for appellee.


                      On July 2, 2012, Michael Dewayne Culberson (“appellant”) was indicted for possession of

              cocaine, in violation of Code § 18.2-250; obstruction of justice, in violation of Code § 18.2-460(A);

              and driving on a suspended license, in violation of Code § 46.2-301. He filed a motion to suppress

              “evidence unlawfully seized from [his] person pursuant to an unlawful arrest.” Following a hearing,

              the court denied the motion and appellant was tried by a jury on September 23, 2015.

                      The jury convicted appellant of the three charges and recommended a sentence of twelve

              months’ confinement in jail and a fine for each charge. The court sentenced appellant to five years

              of incarceration with four years suspended on the possession of cocaine conviction and twelve

              months in jail with six months suspended on each of the two misdemeanor charges, for a period of

              five years.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        Appellant asserts the following assignments of error:

                I.      The trial court erred in denying Culberson’s motion to
                        suppress where the evidence adduced did not establish that
                        law enforcement officers had probable cause to enter the
                        vehicle allegedly occupied by Culberson without a warrant.

                II.     The trial court erred in sentencing Culberson to a greater
                        sentence than imposed by the jury.

For the following reasons, we affirm in part and reverse and remand in part.

                                          I. BACKGROUND

        At the suppression hearing, Officer Kathleen Moffat testified that she saw appellant driving

a vehicle with Mississippi license plates at approximately 2:00 a.m. on April 11, 2012. As she

pulled up next to the car, appellant exited the vehicle from the driver’s seat. He had parked the car

facing traffic, in violation of the city code. The officer unsuccessfully attempted to engage appellant

in conversation as he walked away.

        Officer Moffat testified that “something just didn’t feel right,” so she checked the license

plate number to determine if the car was stolen. She also radioed to Officer Nathan Robertson, who

was nearby, and asked him to watch appellant. Officer Robertson approached appellant and asked

if the car “back there” belonged to him. Appellant told Officer Robertson: “I ran out of gas. I’m

going to the store.” Officer Robertson testified that he did not detain appellant at that time.

        While Officer Moffat was waiting to receive a response about the vehicle, she looked into

the car with her flashlight and saw a “glass smoking device [that] still had steam in it . . . sitting on a

white paper towel” within arm’s reach of the driver’s seat. Because she suspected that the smoking

device contained narcotics, Officer Moffat asked Officer Robertson to detain appellant.

        Officer Robertson attempted to stop appellant, who pulled away and resisted being detained.

Officer Moffat responded to assist Officer Robertson and ultimately placed appellant under arrest.




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The officers searched appellant and found a key to the vehicle in his pocket. The officers returned

to the car and seized the smoking device that was later found to contain cocaine residue.

        Appellant testified at the suppression hearing that he was visiting a friend in the area and

called his niece for a ride home. When appellant walked outside, he saw the unoccupied vehicle

with the keys in the ignition. He stated that the vehicle belonged to his sister. Appellant claimed

that he removed the keys, locked the door, and started to walk down the street to look for the driver.

According to appellant, Officer Robertson approached him and asked where he was going.

Appellant testified that he did not answer, but kept walking. He stated that the officer subsequently

“ambushed” him from behind and started to beat him.

        At the conclusion of the hearing, appellant moved to suppress the evidence. Appellant

argued that “there’s absolutely nothing as far as any furtive movement or putting anything down in

the area [where Officer Moffat] said she later . . . found . . . this smoking device.” He asserted that

“there’s no probable cause to . . . stop him, because he’s just walking down the street . . . no officer

has testified . . . that they saw any type of movement [by appellant] . . . towards the floorboard

where [the glass smoking device] was seen.” Therefore, he contended that “there was no probable

cause to stop, and that anything that came of [the stop] was the fruit of the poisonous tree.” The

court found that it was “a factual dispute that need[ed] to go to the jury,” and denied the motion to

suppress.

                                            II. ANALYSIS

                                        A. Motion to Suppress

        Appellant contends that the court erred in denying his suppression motion. He asserts that

Officer Moffat did not have probable cause to enter the vehicle without a warrant and the

subsequent seizure of the glass pipe was unlawful. He argues that the “plain view” doctrine does




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not provide an exception to the warrant requirement and therefore, evidence recovered as a result of

the seizure of the glass pipe should be suppressed.

        Appellant’s argument differs from the argument he made at the suppression hearing. On

appeal, appellant focuses his argument on the legal significance of the glass smoking device.

Appellant contends that the “plain view” exception to the search warrant requirement does not apply

because probable cause cannot be established “solely on the observation of material which can be

used for legitimate purposes, even though the experience of an officer indicates that such material is

often used for illegitimate purposes.” Brown v. Commonwealth, 270 Va. 414, 420-21, 620 S.E.2d

760, 763 (2005). Appellant contends that the officer did not have probable cause to seize the glass

pipe as evidence of a crime, because the pipe could be used for a legitimate purpose.

        However, at the suppression hearing, appellant argued that the police lacked probable cause

to stop him because Officer Moffat didn’t observe any furtive movement and the car wasn’t

registered to appellant. He asserted that “it’s a constructive possession case at the most.”

Appellant’s only mention of the glass smoking device was in the context of furtive movement when

he argued that “there’s absolutely nothing as far as any furtive movement or putting anything down

in the area that she said she later . . . found . . . this smoking device.” He never presented the

argument to the trial court that the smoking device was improperly seized because it was not, in and

of itself, evidence of a crime.

        Rule 5A:18 provides that “[n]o ruling of the trial court . . . will be considered as a basis for

reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for

good cause shown or to enable the Court of Appeals to attain the ends of justice.” This Court “will

not consider an argument on appeal [that] was not presented to the trial court.” Ohree v.

Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “The same argument must

have been raised, with specificity, at trial before it can be considered on appeal.” Correll v.

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Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d 712, 719 (2004). “Making one specific

argument on an issue does not preserve a separate legal point on the same issue for review.”

Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc).

        Appellant presents a different argument on appeal from the one he made at the suppression

hearing. At that hearing, appellant contended that there was no probable cause or reasonable

suspicion to stop him because Officer Moffat did not observe any furtive movement, and the car

was not registered to him. However, his assignment of error on appeal is based on the warrantless

seizure of the glass pipe. He specifically argues that the smoking device was not clearly contraband

and therefore, the police had no reason to seize it. Because appellant did not make this argument to

the trial court, it is waived pursuant to Rule 5A:18.

                                            B. Sentencing

        Appellant contends that the court erred by imposing a sentence greater than the jury

recommended on the possession of cocaine charge. The jury recommended a sentence of twelve

months in jail, and the court amended that sentence to five years of incarceration with four years

suspended, for a period of five years.1

        “A trial court’s assessment of punishment is reviewed under an abuse of discretion

standard.” Commonwealth v. Greer, 63 Va. App. 561, 567, 760 S.E.2d 132, 135 (2014). However,

a trial court “by definition abuses its discretion when it makes an error of law.” Porter v.

Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (quoting Koon v. United States, 518

U.S. 81, 100 (1996)). Additionally, to the extent this issue requires interpretation of a statute, we

review it de novo. Bennett v. Commonwealth, 60 Va. App. 656, 665, 731 S.E.2d 40, 44 (2012).




        1
         The Commonwealth agrees that “the court had no power to impose an additional
sentence of more than three years.” Therefore, the Commonwealth concedes that this matter
should be remanded for resentencing.
                                             -5-
        Appellant concedes that he did not object to the sentence at the time it was imposed, but he

asks this Court to review the issue under the ends of justice exception to Rule 5A:18. We apply the

ends of justice exception if the error is “clear, substantial and material.” Brown v. Commonwealth,

279 Va. 210, 219, 688 S.E.2d 185, 190 (2010) (quoting West v. Commonwealth, 43 Va. App. 327,

338, 597 S.E.2d 274, 279 (2004)). In Gordon v. Commonwealth, 61 Va. App. 682, 685, 739 S.E.2d

276, 277 (2013), the defendant appealed her sentence because it exceeded the statutory maximum.

Although the defendant did not note her exception before the trial court, we found that the ends of

justice exception to Rule 5A:18 mandated our consideration of the issue because the sentence was

invalid. Id. at 685-86, 739 S.E.2d at 277-78. Likewise, we find that the ends of justice exception to

Rule 5A:18 applies in the case before us.

        Code § 19.2-295(A) provides that after a finding of guilt, “the term of confinement in the

state correctional facility or in jail and the amount of fine, if any, of a person convicted of a criminal

offense, shall be ascertained by the jury.” However, the sentence recommended by the jury

                is not final or absolute, since [the jury’s] 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 v. Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986) (quoting Vines v.

Muncy, 553 F.2d 342, 349 (4th Cir. 1977)). Thus, “the trial judge may reduce a sentence but may

not exceed the ‘maximum punishment’ fixed by the jury.” Batts v. Commonwealth, 30 Va. App. 1,

16, 515 S.E.2d 307, 315 (1999).

        However, a trial court may impose an additional term under certain circumstances. Code

§ 19.2-295.2(A) states that:

                [a]t the time the court imposes sentence upon a conviction for any
                felony offense . . . the court may . . . impose a term of postrelease
                supervision of not less than six months nor more than three years, as
                the court may determine. Such additional term shall be suspended
                                                   -6-
               and the defendant placed under postrelease supervision upon release
               from the active term of incarceration. The period of supervision shall
               be established by the court; however, such period shall not be less
               than six months nor more than three years.

(Emphasis added).

       Here, the court erred in sentencing appellant on the felony charge. Although the jury

recommended a sentence of twelve months in jail, the court sentenced appellant to a term of five

years of incarceration, with four years suspended for a period of five years. While the court had the

authority to impose an additional term of up to three years of postrelease supervision, it did not

specify that the additional time was imposed pursuant to Code § 19.2-295.2. Neither the sentencing

order nor the transcript of the sentencing proceeding has a provision or reference to postrelease

supervision.

       Further, the provisions of that code section provide only for a period of postrelease

supervision of six months to three years. The court imposed a sentence of five years, with four

years suspended for a period of five years. Therefore, the trial court imposed a sentence that

exceeded what was statutorily permissible.

       Accordingly, we reverse the sentencing order for the possession of cocaine conviction and

remand for a new sentencing proceeding consistent with this opinion. We affirm the trial court’s

ruling on the motion to suppress.

                                                     Affirmed in part, reversed and remanded in part.




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