                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Kelsey, Beales and Decker
PUBLISHED


            Argued at Chesapeake, Virginia


            COMMONWEALTH OF VIRGINIA
                                                                               OPINION BY
            v.     Record No. 1898-13-1                                 JUDGE MARLA GRAFF DECKER
                                                                               JULY 22, 2014
            RAYSHAWN TORRELL GREER


                         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                          Timothy S. Fisher, Judge

                           Katherine Quinlan Adelfio, Assistant Attorney General (Mark R.
                           Herring, Attorney General, on brief), for appellant.

                           Jeffrey C. Rountree for appellee.


                   Rayshawn Torrell Greer (the defendant) was convicted in a jury trial of possessing a

            firearm after having been convicted of a violent felony pursuant to Code § 18.2-308.2. As

            permitted by Code § 19.2-398(C), the Commonwealth appeals the defendant’s sentence for that

            offense.1 It contends that the trial court erred by sentencing the defendant to a term of

            imprisonment of two years rather than the five-year mandatory minimum sentence. The trial

            court imposed that sentence after the jury returned a sentencing verdict of two years, despite

            written and oral instructions properly advising the jury that the only statutorily available sentence

            for the crime was a mandatory term of imprisonment of five years. The Commonwealth further

            argues that the trial court was required to set aside the jury’s erroneous sentencing verdict and

            impanel a new jury to sentence the defendant in accordance with the law. We hold that the trial

            court’s imposition of a jury sentence below the mandatory minimum sentence of five years was


                   1
                    The defendant did not file a cross-appeal and does not challenge his conviction or his
            two-year sentence.
void ab initio. Additionally, we hold that the trial court erred in refusing to impanel a new jury

for sentencing after the original jury refused to perform its duties as instructed. Therefore, we

reverse in part, vacate the defendant’s sentence, and remand to the trial court for sentencing

before a new jury.

                                        I. BACKGROUND

       The defendant requested a jury trial after being charged with the offense of possession of

a firearm by a convicted felon. At trial, the Commonwealth’s evidence established that police

came into contact with the defendant when he voluntarily agreed to speak with them during the

course of a murder investigation. The defendant admitted to detectives that he possessed a

firearm during the time period in which he shot and killed Frank Griffin. The defendant

cooperated with law enforcement and turned the gun over to them. He admitted that he had

previously been convicted of a felony and knew that he was not supposed to have a gun.2

Ultimately, the prosecutor concluded that the defendant acted in self-defense when Griffin

brandished his own firearm. As a result, the defendant was not charged with murder.

       At the defendant’s trial on the firearm offense, the jury found him guilty of possession of

a firearm by a convicted violent felon.3

       In the sentencing phase of trial that immediately followed the determination of guilt, the

court instructed the jury as follows:

                        You have found the defendant guilty of the crime of
                possessing or transporting a firearm after having been convicted of
                a violent felony.



       2
           In 2008, the defendant was convicted of robbery in violation of Code § 18.2-58.
       3
         The record shows that the jury found that the defendant’s prior felony conviction was
for an offense classified as “violent” under the applicable law, the classification that subjected
him to the mandatory minimum sentence of five years. On appeal, the defendant does not
challenge the fact-finding process that led to this classification.
                                                 -2-
                           Upon consideration of all the evidence you have heard, you
                  shall fix the defendant’s punishment at a specific term of
                  imprisonment of five (5) years.

        During deliberations, the jury submitted the following handwritten question: “Is the 5

years the only option?” The trial court consulted with counsel and provided the following

written response: “The answer is yes.” The jury then further inquired in writing, “What if we do

not all agree to the fix [sic] punishment of 5 years?” In response, the court brought the jury back

and reminded them that their verdict had to be unanimous and if they could “possibly reach a

verdict, it [was] [their] duty to do so.”

        After additional deliberations, the jury submitted the following questions:

                  We can not [sic] all agree on 5 years but we agree on 2 years.

                  Do we have any other options or do we sit here till we agree on 5
                  years[?]

                  Is this the minimal sentance [sic] for this crime[?]

        The court discussed the questions with counsel and observed, “[I]f the verdict is not

unanimous, then the [c]ourt impanels another jury for sentencing. If the verdicts are unanimous,

then it’s over.” The court referenced prior decisions approving inconsistent jury verdicts in the

guilt phase and implied that the jury could act similarly during the sentencing phase by refusing

to impose the mandatory minimum of five years. The court noted, in contrast, that a judge lacks

such authority.

        The court did not answer the jury’s questions but inquired whether the jury had reached a

unanimous verdict, and the jury indicated that it had done so. The jury returned that verdict on

the finding instruction provided but altered the language, “We . . . fix [the defendant’s]

punishment at 5 years,” to reflect a two-year sentence. The foreperson crossed through the “5

years,” inserted “2 years” in its place, and initialed the change.



                                                   -3-
       After the jury had been discharged, the prosecutor objected to the jury’s verdict of a

two-year sentence in light of the mandatory minimum of five years required by the statute. The

trial court imposed the two-year punishment set by the jury.

       Following sentencing, the prosecutor moved the trial court to set aside the jury’s sentence

and impanel a new jury to ascertain punishment. She argued that the jury did not agree on a

punishment authorized by the legislature and averred that unless the defendant and the court

agreed to imposition of the mandatory sentence of five years, Code § 19.2-295.1 required the

trial court to impanel a new sentencing jury.

       The trial court suggested that the mandatory minimum sentence conflicted with the legal

principle that prevented the court from increasing a jury’s sentencing verdict. The judge

concluded that he “[did not] have a hung jury because they agreed on the punishment.” Further,

the judge posited that he “[did not] know if [he] had the authority to impanel a different jury.”

The court considered several existing appellate decisions on the issue but determined that none

controlled. The judge ultimately concluded: “In my conscience I don’t think I can say [that the

jury was] wrong. They didn’t give him enough time, but as a trial judge I [cannot] raise the

sentence.”

       This Commonwealth’s appeal followed.

                                          II. ANALYSIS

       The Commonwealth argues that the trial court erred in imposing the two-year sentence

instead of a five-year sentence required by the statute. The defendant responds that the jury, in

essence, engaged in jury nullification during the sentencing phase by rejecting the mandatory

minimum despite receiving proper instructions. He contends further that the trial court lacked

authority to set aside the jury’s sentencing verdict because applicable legal principles permitted

the court only to shorten, not lengthen, the sentence fixed by the jury.

                                                -4-
       A trial court’s assessment of punishment is reviewed under an abuse of discretion

standard. Rawls v. Commonwealth (J.M. Rawls), 272 Va. 334, 351, 634 S.E.2d 697, 706 (2006).

A trial court “‘by definition abuses its discretion when it makes an error of law. . . . The

abuse-of-discretion standard includes review to determine that the discretion was not guided by

erroneous legal conclusions.’” 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)). To the extent that

determinations regarding sentencing involve the interpretation of a statute or the common law,

such an interpretation is a question of law reviewed de novo on appeal. See Woodard v.

Commonwealth, 287 Va. 276, 280, 754 S.E.2d 309, 311 (2014); Country Vintner, Inc. v. Louis

Latour, Inc., 272 Va. 402, 410, 634 S.E.2d 745, 750 (2006).

       Code § 18.2-308.2(A) provides that one who possesses a firearm after having been

convicted of a felony “shall be guilty of a Class 6 felony.” A Class 6 felony is punishable by

imprisonment for a minimum of one year and up to five years. See Code § 18.2-10(f). Code

§ 18.2-308.2(A) provides further, “[h]owever, [that] any person who violates this statute by

knowingly and intentionally possessing . . . any firearm and who was previously convicted of a

violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of

imprisonment of five years.” (Emphasis added). “Since a violation of Code § 18.2-308.2(A) is a

Class 6 felony punishable under Code § 18.2-10 by a term of imprisonment between one and five

years, the mandatory minimum sentence for a defendant convicted of possession of a firearm

after a previous violent felony conviction equals the statutory maximum sentence [of five

years].” J.M. Rawls, 272 Va. at 347-48, 634 S.E.2d at 703 (emphasis added); see Johnson v.

Commonwealth, 56 Va. App. 244, 248-53, 692 S.E.2d 651, 653-55 (2010) (rejecting a

separation-of-powers challenge to the five-year mandatory minimum sentence in Code

§ 18.2-308.2).

                                                -5-
       Here, the parties agree that because the defendant had a prior conviction for robbery, an

offense enumerated in Code § 17.1-805(C) by reference to Code § 18.2-58, the “violent felony”

provision of Code § 18.2-308.2(A) applies and the mandatory minimum as well as the maximum

sentence for the offense is five years. The parties also agree that the trial court properly

instructed the jury that the appropriate sentence is five years in prison. Despite receiving proper

instructions, however, the jury unanimously fixed the defendant’s punishment at two years in

contravention of the law as set out in those instructions. The trial court sentenced the defendant

in accord with the jury’s sentencing verdict.

       We hold that the jury’s sentence of two years was erroneous and the trial court’s

imposition of that sentence was void ab initio. The judge was obligated to reject the jury’s

verdict and to impanel a new jury to determine punishment within the prescribed limits

established by the legislature for the crime for which the jury had found the defendant guilty.

                           A. The Jury’s Role and Sentencing Authority

       The Sixth Amendment to the United States Constitution, applicable to the states through

the Due Process Clause of the Fourteenth Amendment, guarantees that “‘in all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’”

Apprendi v. New Jersey, 530 U.S. 466, 476-77 (2000) (quoting U.S. Const. amend. VI); see also

Va. Const. art. I, § 8. In determining the scope of the right to a jury under both the United States

and Virginia Constitutions, we look to the role of the jury at common law. Oregon v. Ice, 555

U.S. 160, 170 (2009), quoted with approval in S. Union Co. v. United States, 132 S. Ct. 2344,

2353 (2012); see Fogg v. Commonwealth, 215 Va. 164, 166, 207 S.E.2d 847, 849 (1974).

       “[T]rial by jury has been understood to require that ‘the truth of every accusation,

whether . . . in the shape of indictment [or] information, . . . should afterwards be confirmed by

the unanimous suffrage of twelve of [the defendant’s] equals and neighbours . . . .’” Apprendi,

                                                -6-
530 U.S. at 477 (fifth and sixth alterations in original) (quoting 4 William Blackstone,

Commentaries on the Laws of England 343 (1769)). “Just as suffrage ensures the people’s

ultimate control in the legislative and executive branches, jury trial is meant to ensure their

control in the judiciary.” Blakely v. Washington, 542 U.S. 296, 306 (2004). Trial by jury

“‘guard[s] against a spirit of oppression and tyranny on the part of rulers[]’ and [serves] ‘as the

great bulwark of [our] civil and political liberties.’” Apprendi, 530 U.S. at 477 (final alteration

in original) (quoting 2 Joseph Story, Commentaries on the Constitution of the United States

540-41 (4th ed. 1873)).4

       Although judge and jury may both serve as finders of fact at trial, their duties and powers

are not identical. In some contexts, the jury may exercise greater discretion. For example, under

settled principles, a trial court may not render inconsistent verdicts in the guilt phase of a bench

trial. Akers v. Commonwealth, 31 Va. App. 521, 528-32, 525 S.E.2d 13, 16-19 (2000); see also

Cleveland v. Commonwealth, 38 Va. App. 199, 203-05, 562 S.E.2d 696, 698-99 (2002)

(upholding a conviction where the trial judge expressly stated that he exercised lenity in

dismissing one of several charges, thereby establishing that his acquittal of the defendant for

driving while intoxicated was not inconsistent with his conviction of the defendant for another

crime that required proof of driving while intoxicated as an element of the offense). Similarly, a

jury’s rendering of inconsistent verdicts in the guilt phase of trial constitutes “‘[the] assumption

of a power which [the jury] ha[s] no right to exercise.’” Wolfe v. Commonwealth, 6 Va. App.

       4
          The Apprendi line of cases holds that a defendant being prosecuted under state law has
a constitutional right to have “‘any fact (other than prior conviction) that increases the maximum
[or minimum] penalty for a crime . . . submitted to a jury[] and proven beyond a reasonable
doubt.’” Apprendi, 530 U.S. at 476 (quoting Jones v. United States, 526 U.S. 227, 243 n.6
(1999)); see Alleyne v. United States, 133 S. Ct. 2151, 2160, 2161 n.2, 2163 (2013) (extending
Apprendi to mandatory minimums but making clear that judges retain “broad discretion . . . to
select a sentence within the range authorized by law” (emphasis added)). The defendant was
afforded that right here when the court, in the guilt phase of trial, submitted to the jury the
question whether the prior felony of which he had been convicted was a “violent” one within the
meaning of Code § 18.2-308.2(A).
                                                 -7-
640, 647-48, 371 S.E.2d 314, 318 (1988) (emphasis added) (quoting United States v. Powell, 469

U.S. 57, 63 (1984)) (internal quotation marks omitted). Nevertheless, a jury’s rendering of

inconsistent verdicts in the guilt phase, although not encouraged, does not, standing alone,

provide a basis for reversal. Reed v. Commonwealth, 239 Va. 594, 596-98, 391 S.E.2d 75,

76-77 (1990); Walls v. Commonwealth, 38 Va. App. 273, 282, 563 S.E.2d 384, 388 (2002). The

United States Supreme Court has held that such behavior “implicates no constitutional

guarantee” of a defendant’s, and as a result, states may develop their own rules regarding such

verdicts. Wolfe, 6 Va. App. at 648, 371 S.E.2d at 318; see also Walls, 38 Va. App. at 282, 563

S.E.2d at 388 (noting that the right to due process does not entitle a party to encourage jury

nullification); State v. Bjerkaas, 472 N.W.2d 615, 619 (Wis. Ct. App. 1991) (recognizing that the

jury’s nullification power is not a defendant’s right but, rather, the price paid for “double

jeopardy [protections]—the government’s inability to appeal from even the most lawless

acquittal”).

        In interpreting the law governing inconsistent verdicts in the Commonwealth, we have

observed that juries may reach such verdicts in the guilt phase “through mistake, compromise, or

lenity, but in such instances it is ‘unclear whose ox has been gored,’ the government’s or the

defendant’s.” Wolfe, 6 Va. App. at 648, 371 S.E.2d at 318 (quoting Powell, 469 U.S. at 65). We

have reasoned further:

               “The most that can be said in such cases is that the verdict shows
               that either in the acquittal or the conviction the jury did not speak
               their real conclusions, but that does not show that they were not
               convinced of the defendant’s guilt.” . . . For this reason and the
               fact that the government is precluded from appealing the acquittal
               verdict, . . . inconsistent verdicts [in the guilt phase of a jury trial]
               should not provide the basis for an appeal by the defendant.

Id. at 647-48, 371 S.E.2d at 318 (quoting Powell, 469 U.S. at 63) (internal quotation marks

omitted). Thus, “[d]espite the apparent inconsistency of a [jury’s] verdict[s] [in the guilt phase],

                                                  -8-
courts may uphold inconsistent verdicts, provided that the evidence supports the verdict

challenged on appeal.” Kovalaske v. Commonwealth, 56 Va. App. 224, 233, 692 S.E.2d 641,

646 (2010).

        In contrast, we are not aware of, and the parties have not cited, any Virginia appellate

decision approving jury nullification in the sentencing phase of a trial. Indeed, our statutes and

case law dictate a contrary conclusion. Once guilt has been determined, both judge and jury are

constrained by the sentencing limits set by the legislature. “[N]othing in the United States or

Virginia Constitution gives a defendant the right to be sentenced by a jury or solely by a jury.”

Boyd v. Commonwealth, 28 Va. App. 537, 540, 507 S.E.2d 107, 109 (1998) (citing Fogg, 215

Va. at 166-67, 207 S.E.2d at 849-50). Further, “[t]he choice of sentencing procedures is a matter

for legislative determination.” Duncan v. Commonwealth, 2 Va. App. 342, 344, 343 S.E.2d 392,

393 (1986).

        The General Assembly has enacted numerous statutes outlining these sentencing

procedures. Id. at 344, 343 S.E.2d at 393-94. Code § 19.2-295, for example, provides that in a

jury trial, “the term of confinement . . . and the amount of fine, if any, of a person convicted of a

criminal offense, shall be ascertained by the jury” but such must be done “[w]ithin the limits

prescribed by law.” Code § 19.2-295(A) (emphasis added); see Duncan, 2 Va. App. at 344-45,

343 S.E.2d at 393-94; see also Code § 19.2-295.2 (providing circuit courts with the option of

imposing an additional term of incarceration and then suspending it for purposes of enforcing

post-release supervision); Allard v. Commonwealth, 24 Va. App. 57, 67, 480 S.E.2d 139, 144

(1997) (upholding the enactment of Code § 19.2-295.2 and noting that “under Virginia’s

statutory scheme, the sentence ascertained by the jury is not final or absolute”).

        As we observed in Lilly v. Commonwealth, 50 Va. App. 173, 647 S.E.2d 517 (2007),

historically,

                                                -9-
               American juries . . . exercised little, if any, discretionary control
               over criminal sentences . . . . The historic norm for the jury was to
               determine only guilt or innocence, leaving the court alone to fix the
               punishment consistent with legislatively mandated sentences.
               Later statutory reforms produced . . . sentencing ranges within
               which trial judges could exercise . . . discretion. Some states, like
               Virginia, authorized juries to ascertain a specific felony sentence
               within the statutory range, subject to the trial court’s power of
               suspension.

Id. at 187, 647 S.E.2d at 524 (emphasis added) (citation omitted); see Apprendi, 530 U.S. at 481

(noting that the Court’s “periodic recognition of judges’ broad discretion in sentencing . . . has

been regularly accompanied by the qualification that [such] discretion was bound by the range of

sentencing options prescribed by the legislature” (emphasis added)); see also Walker v.

Commonwealth, 25 Va. App. 50, 61, 486 S.E.2d 126, 132 (1997) (recognizing that in the

mid-1990s, seven states in addition to Virginia allowed jury sentencing in noncapital cases). It

has long been established, subject to limited statutory exception, that neither a judge nor a jury

may fix a sentence exceeding the statutory range and that such a penalty is void as to the excess.

See, e.g., Rawls v. Commonwealth (J.K. Rawls), 278 Va. 213, 218, 221, 683 S.E.2d 544, 547,

549 (2009); Allard, 24 Va. App. at 67, 480 S.E.2d at 144.

       Consistent with its role in determining sentencing procedures and setting statutory ranges

for crimes, Virginia’s General Assembly also established mandatory minimum sentences for

certain crimes. Lilly, 50 Va. App. at 187, 647 S.E.2d at 524. We have expressly held that in

doing so,

               [the legislature has] produced a floor below which no judge or jury
               [can] go. A trial court’s authority to depart downward below a
               mandatory minimum is “nonexistent,” Mouberry v.
               Commonwealth, 39 Va. App. 576, 585, 575 S.E.2d 567, 571
               (2003), because the legislative purpose was to divest trial judges
               and juries of “all discretion” to sentence below the threshold
               minimum, In re Commonwealth of Virginia, 229 Va. 159, 163, 326
               S.E.2d 695, 697 (1985).



                                               - 10 -
Id. at 187-88, 647 S.E.2d at 524 (emphases added); see also Woodard, 287 Va. at 280, 754

S.E.2d at 311 (holding that in the context of a bench trial, “‘[o]nce a court has entered a

judgment of conviction . . . , the question of the penalty . . . is entirely within the province of the

[General Assembly]’” (final alteration in original) (quoting Starrs v. Commonwealth, 287 Va. 1,

9, 752 S.E.2d 812, 817 (2013))); cf. Schmitt v. Commonwealth, 262 Va. 127, 139-41, 547 S.E.2d

186, 195-96 (2001) (implicitly rejecting jury nullification in the sentencing phase by upholding a

trial court’s removal of a prospective juror who would not consider voting for the death penalty

even if applicable instructions required her to do so).

        These same principles prevent a defendant from “present[ing] argument about [a]

mandatory minimum sentence during the guilt phase [of trial].” Walls, 38 Va. App. at 282, 563

S.E.2d at 388.

                 [T]he only purpose served by allowing . . . [such] argument . . .
                 during the guilt phase [would be] to encourage the jury to acquit
                 the defendant even though the evidence might prove him guilty.
                 Allowing closing argument which encourages an acquittal
                 irrespective of the evidence would, in essence, permit the jury to
                 do in the guilt phase that which it lacks the authority to do in the
                 sentencing phase—impose a sentence less than the statutory
                 minimum—by finding the defendant not guilty.

Id. (second emphasis added), quoted with approval in Ford v. Commonwealth, 48 Va. App. 262,

269-70, 630 S.E.2d 332, 336 (2006); see Lilly, 50 Va. App. at 185-88, 647 S.E.2d at 523-24

(rejecting the defendant’s claim that due process entitled her to a jury instruction about the

mandatory minimum sentence in the guilt phase of trial).

        Virginia law and the principles surrounding mandatory minimum sentences compel the

conclusion that the jury here could not lawfully engage in nullification in the sentencing phase

and was constrained to render a sentencing verdict that complied with the mandatory sentence of

five years set by the legislature. See also United States v. Hardy, 46 M.J. 67, 70 (C.A.A.F. 1997)

(noting that the United States Court of Appeals for the Armed Forces has held “that jury
                                                 - 11 -
nullification is impermissible when the Code [of Military Justice] provides for a mandatory

minimum sentence and that any such sentence nullification would be subject to reconsideration

or a rehearing”); Neace v. Commonwealth, 978 S.W.2d 319, 322 (Ky. 1998) (holding that where

the jury returned a unanimous verdict of five years despite proper instructions that the range was

twenty years to life, the trial court properly concluded that the sentence was “unlawful” and that

“[a]ny other result would permit juries to re-write penalty statutes and effectively nullify the

sentencing laws”). Thus, the sentencing verdict of two years rendered by the jury was improper.

       B. The Trial Court’s Role Following the Jury’s Sentencing Verdict and on Remand

       The trial court recognized the problem associated with the fact that the jury’s sentencing

verdict was lower than the punishment of five years mandated by statute. However, because the

verdict was unanimous, the court determined that it lacked authority to impanel a new jury to

consider the defendant’s sentence. The court focused on the language of Code § 19.2-295.1,

which provides: “If the jury cannot agree on a punishment, the court shall impanel a different

jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth, and the

court agree, in the manner provided in § 19.2-257, that the court shall fix punishment.” The

court reasoned that because the jury agreed on a punishment, albeit one below the range

prescribed by the applicable statutes, and because the defendant did not agree to an adjustment in

that punishment, it had no authority to alter the two-year sentence. Upon de novo review of this

legal ruling, we reach a contrary conclusion. We hold that the Supreme Court of Virginia’s

decision in J.K. Rawls, 278 Va. 213, 683 S.E.2d 544, required the trial court to reject the jury’s

sentence of two years and to empanel a new jury for sentencing.

       In deciding J.K. Rawls, the Supreme Court stated broadly:

               [W]e adopt the following rule that is designed to ensure that all
               criminal defendants whose punishments have been fixed in
               violation of the statutorily prescribed ranges are treated uniformly
               without any speculation. We hold that a sentence imposed in
                                               - 12 -
                violation of a prescribed statutory range of punishment is void ab
                initio because “the character of the judgment was not such as the
                [C]ourt had the power to render.” Thus, a criminal defendant in
                that situation is entitled to a new sentencing hearing. This
                common law rule of jurisprudence will eliminate the need for
                courts to resort to speculation when determining how a jury would
                have sentenced a criminal defendant had the jury been properly
                instructed or had the jury properly followed correct instructions.
                Applying this rule to Rawls, we hold that he is entitled to a new
                sentencing hearing on his second degree murder conviction . . . .

Id. at 221, 683 S.E.2d at 549 (second alteration in original) (first, second, fourth, and fifth

emphases added) (citations omitted) (quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176,

177 (1887)).5

       The defendant correctly argues that the facts in J.K. Rawls are distinguishable from those

in his case. Rawls’ sentence was above, rather than below, the statutorily prescribed range, and

the sentencing error in J.K. Rawls resulted from faulty jury instructions rather than the jury’s

disregard of proper instructions. Id. at 215-16, 683 S.E.2d at 546. Despite these differences,

however, the “common law rule of jurisprudence” set out by the Supreme Court was not limited

to the facts of that case. Id. at 221, 683 S.E.2d at 549. Its holding expressly applies to a jury’s

disregard of “correct instructions.” Id. It also expressly applies to “all criminal defendants

whose punishments have been fixed in violation of the statutorily prescribed ranges.” Id.

(emphasis added). It therefore implicitly, and logically, includes both those whose sentences are

above the statutory range and those whose sentences are below it. See id. at 220, 683 S.E.2d at

548 (citing Jones v. Commonwealth, 61 Va. (20 Gratt.) 848, 858-59 (1871), involving the award

of a new trial “when the jury fixed the defendant’s punishment below the . . . mandatory


       5
         J.K. Rawls created a “common law rule of jurisprudence.” 278 Va. at 221, 683 S.E.2d
at 549. That rule is designed to remedy inconsistencies in procedures previously employed by
Virginia’s appellate courts to fix erroneous sentences. Id. In deciding J.K. Rawls, the Court did
not rely upon Code § 19.2-295.1. Id. That statute was not enacted until 1994, see 1994 Va. Acts
chs. 828, 860, 862, 881, after all but one of the cases serving as the impetus for the Court’s 2009
decision in J.K. Rawls.
                                                - 13 -
minimum,” before the advent of the bifurcated trial system (emphasis added)); see also Neace,

978 S.W.2d at 321-22 (holding that a jury verdict below the statutory minimum was “unlawful”

and that the trial court “properly corrected the sentence to conform to the law”). Thus, the

holding in J.K. Rawls compels the conclusion that the jury’s decision to disregard the proper

instruction requiring it to sentence the defendant to five years in prison was error and that the

sentence it fixed was invalid.

       Further, we hold that in this case, under these circumstances, the proper procedure for

correcting the error is to remand the case for a new sentencing hearing. See Code § 19.2-295.1

(providing that “[i]f the sentence imposed pursuant to this section is subsequently set aside or

found invalid solely due to an error in the sentencing proceeding, the court shall impanel a

different jury to ascertain punishment, unless the defendant, the attorney for the Commonwealth

and the court agree, in the manner provided in § 19.2-257, that the court shall fix punishment”);

see also J.K. Rawls, 278 Va. at 220, 683 S.E.2d at 548 (citing Jones, 61 Va. (20 Gratt.) at

858-59).6

       The Commonwealth specifically requested this remedy in the trial court and assigned

error to that court’s refusal to impanel a new jury to remedy the unlawful sentence. On brief and

in oral argument, however, the Commonwealth asks us to remand to the trial court with

instructions to impose a sentence of five years pursuant to the reasoning in Hines v.

Commonwealth, 59 Va. App. 567, 721 S.E.2d 792 (2012). In Hines, we refined the Supreme

Court’s holding in J.K. Rawls as it applies to cases in which only a single mandatory sentence is

available, explaining:

               Ordinarily, “a criminal defendant . . . is entitled to a new
               sentencing hearing” where “a sentence [is] imposed in violation of

       6
         Of course, if all parties agree to imposition of the mandatory five-year sentence, a new
sentencing proceeding before a new jury is unnecessary and the trial court can impose the
agreed-upon sentence consistent with Code § 19.2-295.1.
                                                - 14 -
               a prescribed statutory range of punishment.” [J.K.] Rawls, 278 Va.
               at 221, 683 S.E.2d at 549. However, because [on the facts of this
               case] a term of three years imprisonment is the only available
               sentence for the trial court to impose, a new sentencing hearing is
               unnecessary. Accordingly, we need not remand for a new
               sentencing hearing.

Hines, 59 Va. App. at 581 n.7, 721 S.E.2d at 798 n.7 (first, second, and fourth alterations in

original) (citation omitted), quoted with approval in Gordon v. Commonwealth, 61 Va. App.

682, 689, 739 S.E.2d 276, 279 (2013). Principles of judicial economy supported this result under

the facts in Hines.

       We conclude, however, that regardless of judicial economy, Hines is distinguishable and

does not apply here. Hines involved a sentence that exceeded the applicable mandatory fixed

sentence, and the defendant in Hines favored the sentence reduction. 59 Va. App. at 570, 721

S.E.2d at 793. In this case, by contrast, the trial court imposed a sentence below the mandatory

five years, and the defendant opposes the Commonwealth’s request for an increase of his

sentence to the mandatory five years. Additionally, at oral argument, the defendant asserted that

if the Court remands the case, resentencing by a jury is the only appropriate remedy. Current

Virginia law gives the defendant a statutory right to be sentenced by a jury, and unless the

General Assembly provides otherwise, that right takes precedence over principles of judicial

economy. Although this procedure may appear formalistic, it is the appropriate resolution in this

case absent agreement of the parties as prescribed by Code § 19.2-295.1. Therefore, we remand

the case for sentencing by a new jury in a manner consistent with the law.7



       7
          The defendant has not suggested, either in the trial court or on appeal, that resentencing
will violate double jeopardy protections. See, e.g., Ohree v. Commonwealth, 26 Va. App. 299,
308, 494 S.E.2d 484, 488 (1998) (noting Rule 5A:18 applies even to constitutional claims). We
note, however, that the Supreme Court of the United States has held that double jeopardy
protections do not apply in the noncapital sentencing context. See Monge v. California, 524 U.S.
721, 728-34 (1998); see also State v. Hernandez, 273 P.3d 774, 780-81 (Kan. 2012) (opining that
Monge “remains good law”).
                                               - 15 -
                                       III. CONCLUSION

       The jury’s sentence of two years was unlawful and the trial court’s imposition of that

sentence was void ab initio. The court was obligated to reject the jury’s verdict and to impanel a

new jury to determine punishment within the limits established by the legislature for the crime

for which the original jury found the defendant guilty. Therefore, we reverse the trial court’s

ruling in part, vacate the defendant’s sentence, and remand the case to the trial court for a new

sentencing proceeding before a different jury.

                                                                                Reversed in part,
                                                                                 vacated in part,
                                                                   and remanded with instructions.




                                                 - 16 -
