                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Beales and Powell
Argued at Richmond, Virginia


COMMONWEALTH OF VIRGINIA
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0085-10-3                                   JUDGE ROBERT P. FRANK
                                                                NOVEMBER 30, 2010
TREMON ANTONIO WIMBUSH


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                 David A. Melesco, Judge

                 Alice T. Armstrong, Assistant Attorney General II (Kenneth T.
                 Cuccinelli, II, Attorney General, on briefs), for appellant.

                 (Andrea C. Long, on brief), for appellee.


       The Commonwealth, pursuant to Code § 19.2-398(C), appeals an order in which the trial

court sentenced Tremon Antonio Wimbush (Wimbush), appellee, to twenty years incarceration for

malicious wounding, 100 years incarceration for first-degree murder, and three years incarceration

for each of two counts of use of a firearm in the commission of the two felonies. The

Commonwealth contends the trial court erred in not imposing the mandatory five-year sentence for

a second conviction of use of a firearm in the commission of a felony pursuant to Code § 18.2-53.1.

For the reasons stated, we agree with the Commonwealth and reverse the judgment of the trial court

as to the second conviction of use of a firearm and remand for re-sentencing on that count.




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

       Appellee shot a pistol from his car at a group of people gathered on the front porch of a

residence, killing Lotoya Hubbard and wounding Eric Ferguson. The two counts of use of a firearm

under Code § 18.2-53.1 arose from the murder and the maiming charges.

       Appellee was found guilty of all four indictments and was sentenced on December 21, 2009

to the terms stated above.

       On December 28, 2009 and January 8, 2010, the Commonwealth’s attorney wrote the trial

court, indicating that Code § 18.2-53.1 mandates a five-year sentence because the court convicted

Wimbush of a second offense of use of a firearm in the commission of a felony. The

Commonwealth asked for re-sentencing. The trial court summarily denied the Commonwealth’s

request. This appeal follows.

                                            ANALYSIS

       The only issue before us is whether Code § 18.2-53.1 requires a mandatory five-year

sentence for appellee’s second conviction of use of a firearm.

       Code § 18.2-53.1 states in part:

               Violation of this section shall constitute a separate and distinct
               felony and any person found guilty thereof shall be sentenced to a
               mandatory minimum term of imprisonment of three years for a
               first conviction, and to a mandatory minimum term of five years
               for a second or subsequent conviction under the provisions of this
               section.

       This very issue has been addressed in a number of appellate decisions from this Court

and the Supreme Court of Virginia.

       In Ansell v. Commonwealth, 219 Va. 759, 250 S.E.2d 760 (1979), the Supreme Court of

Virginia addressed whether the enhanced penalty provisions of Code § 18.2-53.1 applied to three

separate offenses committed on the same day and tried together. Ansell was convicted of two

counts of robbery, one count of attempted robbery, and three counts of use of a firearm in the
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commission of the primary offense. Id. at 761, 250 S.E.2d at 761. He was sentenced, in addition

to the primary felonies, to one year for the first indictment and three years each on the second

and third indictments under Code § 18.2-53.1, as was the law in effect at that time. Id. The

Supreme Court affirmed the enhanced penalties, concluding that Code § 18.2-53.1 is intended to

“deter violent criminal conduct” and rejected appellant’s argument that the prior conviction must

precede the commission of the primary offense. Id. at 763, 250 S.E.2d at 762.

         The Supreme Court re-visited this issue in Flythe v. Commonwealth, 221 Va. 832, 275

S.E.2d 582 (1981). 1 Flythe was convicted of two counts of attempted murder and two counts of

use of a firearm in each of the attempts, each offense occurring at the same time. The Court

ruled:

                        The enhanced punishment provided by the statute is not
                geared to whether an accused has committed one or more acts.
                Instead, it is geared to the number of actual convictions suffered by
                an accused. Where several convictions result from the same act,
                each conviction is separate and distinct from the other. It is the
                identity of the offense and not of the act which is dispositive. We
                have held that if two or more persons are injured by a single
                criminal act, this results in a corresponding number of distinct
                offenses.
                        In Ansell we held that the purpose of Code § 18.2-53.1 is to
                deter violent criminal conduct and that the application of the
                increased penalty provision of the statute to a subsequent offense
                without an intervening conviction was proper. We rejected
                Ansell’s argument for the same reason that we now reject Flythe’s.
                Both cases involved separate indictments for separate crimes
                which were tried jointly with the defendant receiving successive
                sentences. Any conviction that follows a first conviction is a
                subsequent conviction within the purview of Code § 18.2-53.1.

Id. at 835, 275 S.E.2d at 584 (citations omitted).




         1
        The Supreme Court of Virginia, in Bennett v. Commonwealth, Record No. 092085, by
unpublished order decided October 8, 2010, reaffirmed its holding in Flythe. This case was held
in abeyance until the Bennett order was released.

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       The Supreme Court again addressed the same issue in In re Commonwealth of Virginia,

229 Va. 159, 326 S.E.2d 695 (1985).

                        Because the statute’s purpose is “to deter violent criminal
                conduct,” Ansell v. Commonwealth, 219 Va. 759, 763, 250 S.E.2d
                760, 762 (1979), it provides an “inflexible” penalty. Holloman v.
                Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980).
                Clearly, therefore, by prescribing a mandatory sentence, the
                General Assembly has divested trial judges of all discretion
                respecting punishment. See Parrigen v. Long, 145 Va. 637,
                640-41, 134 S.E. 562, 562-63 (1926).

Id. at 162-63, 326 S.E.2d at 697.

       In Lilly v. Commonwealth, 50 Va. App. 173, 187-88, 647 S.E.2d 517, 524 (2007), this

Court observed:

                        The legislative development of the mandatory minimum
                sentence . . . produced a floor below which no judge or jury could
                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).

       Because we conclude that the second conviction of use of a firearm was a second or

subsequent offense under Code § 18.2-53.1, the trial court was required to impose a five-year

sentence. In failing to do so, it erred. We therefore reverse the trial court’s sentence for the

second firearm conviction and remand for the imposition of the mandatory five-year term of

imprisonment.

                                                                            Reversed and remanded.




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