                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman,
          Willis, Elder, Bray, Annunziata, Overton and Bumgardner
Argued at Richmond, Virginia


LARRY JOE DARGAN, JR.
                                              OPINION BY
v.         Record No. 2239-96-3       JUDGE JERE M. H. WILLIS, JR.
                                             JUNE 9, 1998
COMMONWEALTH OF VIRGINIA


                     UPON A REHEARING EN BANC
             FROM THE CIRCUIT COURT OF BUCHANAN COUNTY
                      Keary R. Williams, Judge

           No brief or argument for appellant.

           Leah A. Darron, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



     Convicted of possession of a weapon while an inmate in a

correctional facility, in violation of Code § 53.1-203(4), Larry

Joe Dargan, Jr., contends that the trial court erred (1) in

modifying his sentence more than twenty-one days after its

imposition and (2) in modifying his sentence without the

intervention of a jury.    A divided panel of this Court reversed

the judgment of the trial court.    See Dargan v. Commonwealth,

Record No. 2239-96-3, November 25, 1997 (unpublished).      We stayed

the mandate of that decision and granted rehearing en banc.      Upon

rehearing en banc, we affirm the judgment of the trial court.

     Dargan was convicted in a jury trial of possession of a

weapon while an inmate in a correctional facility, in violation

of Code § 53.1-203(4).    That crime is a Class 6 felony,
punishable by "a term of imprisonment of not less than one year

nor more than five years, or in the discretion of the jury . . .

confinement in jail for not more than twelve months and a fine of

not more than $2,500, either or both."       Code § 18.2-10(f).

        The trial court erroneously instructed the jury that the

punishment provided for Dargan's crime was a term of imprisonment

of not less than one year nor more than ten years, or, in the

discretion of the jury, confinement in jail for not more than

twelve months and a fine of not more than $2,500, either or both.

 The jury fixed Dargan's punishment at imprisonment for ten

years.    By final order entered August 30, 1996, the trial court

imposed that sentence.
        By order entered October 28, 1996, the trial court ruled

that the jury had been instructed erroneously and that the

sentence imposed August 30, 1996 exceeded the term authorized by

law.    Over Dargan's objection, it set aside five years of that

sentence and imposed a sentence of five years imprisonment.

        "'[T]he imposition of [a] void sentence does not terminate

the jurisdiction of the [trial] court.'"        Powell v. Commonwealth,

182 Va. 327, 340, 28 S.E.2d 687, 692 (1944) (citation omitted).

A trial court may correct a void or unlawful sentence at any

time.     Id.
                     A court may impose a valid sentence in
                substitution for one that is void, even
                though service of the void sentence has been
                commenced. Where the sentence imposed is in
                excess of that prescribed by law, that part
                of the sentence which is excessive is
                invalid. A sentence in excess of one



                                    - 2 -
             prescribed by law is not void ab initio
             because of the excess, but is good insofar as
             the power of the court extends, and is
             invalid only as to the excess.


Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510-11

(1973) (citations omitted).

     In Deagle, the jury had four sentencing alternatives

available.    It chose two incompatible sentences.   The Supreme

Court concluded that "[c]ommon sense and reason dictate that the

jury, if it had been required to choose between the two

punishments it fixed, would have imposed the greater, the

penitentiary sentence, and not the lesser, the fine."        Id. at

306, 199 S.E.2d at 511.    It held that a trial court may

substitute a lawful sentence for a sentence that is excessive by

deleting the excessive portion of the invalid sentence.        Id.    See

also Powell, 182 Va. at 340, 28 S.E.2d at 692 (a trial court may

impose a valid sentence in substitution for a void one even

though the defendant has begun serving the void sentence).

     Dargan contends that this case is controlled by Hodges v.
Commonwealth, 213 Va. 316, 191 S.E.2d 794 (1972).     However,

Hodges is legally and factually distinguishable.     In explaining

the inapplicability of Hodges to the situation presented by this

case, the Supreme Court in Deagle said:
               In both Hodges v. Commonwealth, 213 Va.
          316, 191 S.E.2d 794 (1972), and Huggins v.
          Commonwealth, 213 Va. 327, 191 S.E.2d 734
          (1972), the penalty fixed by the jury was
          death. After Furman v. Georgia, 408 U.S. 238
          (1972), which rendered the sentences
          pronounced on those verdicts invalid, we
          declined to summarily reduce the death


                                 - 3 -
            sentences of Hodges and Huggins to life
            imprisonment as urged by the Attorney
            General. For, as we noted in Hodges,

                 " . . . it would be sheer speculation
            for us to conclude that, if death had not
            been a permissible punishment, the jury would
            have fixed the punishment at life
            imprisonment. The jury might well have
            agreed upon 99 years, as it did in the
            Ferguson murder".

                  But the speculative element which was
            present in Huggins and Hodges is not present
            here.

                 From the verdicts we know that the jury
            intended that Deagle be sentenced to serve
            ten years in the penitentiary on each
            indictment.

Id. at 306, 199 S.E.2d at 511 (quoting Hodges, 213 Va. at 321,

191 S.E.2d at 797).

       The alternative sentences available in Hodges fell into

three categories:   (1) death, (2) life imprisonment, and (3)

imprisonment for a term of years.       The unavailability of

sentencing in one category did not render either other category

the automatic choice.   In this case, the sentence imposed by the

jury fell within a single classification, a term of years.      The

correct sentence imposed by the trial court fell within that

classification and, indeed, was encompassed within the sentence

imposed by the jury.    By imposing a ten-year term, the jury

unquestionably intended that Dargan should serve at least five

years.   Therefore, Deagle controls this case and the trial court

did not err in conforming the sentence to a term permitted by

law.


                                - 4 -
     Dargan contends that the modification of his sentence by the

trial court violated his constitutional right to have a jury fix

his sentence.   We find no merit in this argument.   Dargan was

tried and convicted by a jury which imposed upon him the sentence

that he now serves.

     The judgment of the trial court is affirmed.

                                                         Affirmed.




                               - 5 -
Elder, J., with whom Annunziata, J., joins, concurring.


     I concur in the result but only because the sentence imposed

by the jury pursuant to the erroneous instruction was the maximum

term that would have been imposed under that instruction and the

time set aside by the trial court resulted in the maximum

sentence allowable by law.   Because the jury imposed the maximum

sentence authorized by the erroneous instruction, the trial court

could ascertain by "[c]ommon sense and reason" what sentence the

jury would have imposed had it been properly instructed.    Deagle

v. Commonwealth, 214 Va. 304, 306, 199 S.E.2d 509, 511 (1973).

However, if the jury had imposed any sentence under the erroneous

instruction other than the maximum, the court would have been

forced to resort to speculation to determine what the jury's

sentence would have been.    In such a case, I would remand for

resentencing.




                                - 6 -
Benton, J., with whom Fitzpatrick, C.J., and Coleman, J., join,
   dissenting.


     A jury convicted Larry Joe Dargan, Jr., of possession of a

weapon while an inmate in a correctional facility in violation of

Code § 53.1-203(4) and malicious wounding in violation of Code

§ 18.2-51.   Based upon an erroneous instruction concerning the

penalty for the weapon possession conviction, the jury

recommended a prison sentence of ten years, which was the maximum

term stated in the instruction and is five years more than the

maximum term permitted for a violation of Code § 53.1-203(4).

See Code § 18.2-10(f).    Based upon a proper instruction

concerning the penalty for malicious wounding, the jury sentenced

Dargan to ten years in prison, which is ten years less than the

statutorily authorized maximum penalty.    See Code § 18.2-51; Code

§ 18.2-10(c).   The issue presented on this appeal is whether the

trial judge or a jury should have resentenced Dargan when the

error was discovered more than twenty-one days after entry of the

conviction order.   I believe Dargan is entitled to be resentenced

by a jury.

     The right to trial by jury "is fundamental to the American

scheme of justice."    Duncan v. Louisiana, 391 U.S. 145, 149

(1968); see Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d

729, 732 (1985).    Furthermore, a properly instructed jury is

essential to a fair trial.    See Shepperson v. Commonwealth, 19

Va. App. 586, 593, 454 S.E.2d 5, 9 (1995).    See also People v.

Rone, 311 N.W.2d 835, 839 (Mich. Ct. App. 1981) (defendant's



                                - 7 -
right to a jury trial "includes the right to a properly

instructed jury"); Herbert v. Travelers Indemnity Co., 193 So.2d

330, 337 (La. Ct. App. 1966) (right to trial by jury implies

right to have all material evidence "be heard and passed on by a

properly instructed jury").   A jury that is affirmatively

misinformed as to the correct sentence range does not satisfy the

right to trial by jury.
          "[J]uries cannot be allowed to speculate. It
          is the function of the court to inform the
          jury of the law by which its [sentencing]
          verdict must be controlled. The purpose of
          the instructions is to enable the jury to
          understand and apply the law to the facts of
          the case. The accused has a right to have a
          jury pass upon the evidence under proper
          instructions."

Rone, 311 N.W.2d at 839 (citations omitted).    The trial judge's

erroneous instruction violated Dargan's right to a correctly

charged jury and impaired his right to trial by jury.

     In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509

(1973), the jury convicted the defendant of two felony offenses.

For each offense, the judge instructed the jury on the statutory

range of four separate sentencing options.
          Under the statute the jury had four
          alternatives available in fixing Deagle's
          punishment. These were: (1) to impose a
          penitentiary sentence of not less than one
          nor more than twenty years; (2) to fix
          Deagle's punishment at a jail sentence not
          exceeding twelve months and a fine not
          exceeding $1,000; (3) to impose a jail
          sentence of not more than twelve months; or
          (4) to impose a fine of not more than $1,000.

Id. at 305, 199 S.E.2d at 511.    For each offense, the jury chose



                                 - 8 -
two penalties, a penitentiary sentence and a fine, which were not

compatible under the statute.    Id.     Significantly, however, the

judge in Deagle had "correctly instructed [the jury] regarding

the punishment which it might impose upon conviction" for each

offense.   Id. at 304, 199 S.E.2d at 510.

     Because the Deagle jury was correctly instructed, the

Supreme Court's decision upholding the trial judge's remedy for

the incompatible sentences turned upon the Court's determination

of the jury's intent in rendering the verdict.      No speculation

was required to conclude that the jury wanted to impose two units

of punishment because the jury, in fact, had rendered those

verdicts based on a proper instruction of the statutory range of

punishment.    Thus, the Supreme Court could rule with confidence

"[f]rom the verdicts . . . that the jury intended that Deagle be

sentenced to serve ten years in the penitentiary on each

indictment . . . [and] to pay a fine of $1,000 on each

indictment."    Id. at 306, 199 S.E.2d at 511.     The Supreme Court

also had to decide whether the two units of punishment that the

jury recommended for each conviction could be severed based upon

the finding of the jury's intent.       Concluding that they could,

the Supreme Court noted that "[c]ommon sense and reason dictate

that the jury, if it had been required to choose between the two

punishments it fixed, would have imposed the greater, the

penitentiary sentence, and not the lesser, the fine."       Id.   In

other words, the Court approved the trial judge's decision to



                                - 9 -
eliminate the entirety of one of two specific sentences imposed.

     That rationale is inapplicable in this case.     Unlike in

Deagle, the judge at Dargan's trial erroneously instructed the

jury on the statutorily permissible range of sentences.

Consequently, the jury operated upon an invalid premise (the

improper sentence range) and rendered a sentence that bears no

connection to the permissible statutory punishment.    "The fact

that the jury . . . reached its conclusions [on the weapons

sentence] upon the application of an erroneous legal principle

invalidates the [sentencing] verdict[]."     Shepperson, 19 Va. App.

at 593, 454 S.E.2d at 9.   Thus, we can draw no valid or logical

conclusions of the jury's intent from the sentence that the jury

recommended and the trial judge imposed at Dargan's trial.

     Based upon the erroneous instruction, the jury may have

concluded that the legislature deemed the weapons offense to be a

graver offense than it is.   We have no basis to logically infer

that the jury, if properly instructed that the offense was not

one punishable by ten years in prison, would have sentenced

Dargan to the statutory maximum of five years in prison.    We

cannot know whether the jury may have concluded that the ten-year

sentence in the related malicious wounding conviction would

justify an identical sentence in the weapons conviction perhaps

to facilitate concurrent sentences.    We cannot possibly determine

how and through what process the jury arrived at its sentence

when the jury was not properly instructed.    We would doubly



                              - 10 -
speculate to reach such a conclusion and then assume that a

properly instructed jury would have derived its sentence through

the same process.   "[T]o hypothesize a . . . verdict that was

never in fact rendered - no matter how inescapable the findings

to support that verdict might be - would violate the jury-trial

guarantee."   Sullivan v. Louisiana, 508 U.S. 275, 279 (1993).

     Indeed, the jury's sentences at Dargan's trial tend to

refute the majority's belief that the jury would have imposed the

maximum sentence.   The jury did not sentence Dargan to the

statutory maximum sentence that it could have imposed on the

malicious wounding offense.   We can only conjecture what

considerations of the evidence influenced the jury and factored

into the jury's sentencing decision.   "[J]uries are not bound by

what seems inescapable logic to judges."   Morissette v. United

States, 342 U.S. 246, 276 (1952).   The truism that the majority

constructs from Deagle, that the jury would have nonetheless

given the maximum allowed sentence, is based in part on a premise

that does not exist in this case, viz. that the jury was properly
instructed.

     Furthermore, even if we ignore the judge's erroneous

instruction, a finding of the jury's intent from the sentence

alone requires in this case, unlike in Deagle, sheer speculation.

The jury's sentence of Dargan to ten years in prison was an

indivisible unit of punishment and not susceptible to parsing.

In Deagle, the ten-year penitentiary sentence the jury expressly




                              - 11 -
determined to impose was a unit of punishment authorized by

statute.   The fine that the jury imposed was also a statutorily

authorized unit of punishment.    Thus, in reaching its "common

sense" solution in Deagle, the trial judge imposed an intact unit

of punishment from a statutorily authorized punishment that the

jury had selected.

     The five-year sentence the trial judge imposed on Dargan is

not a unit of punishment the jury expressly imposed.      Thus,

neither the trial judge nor this Court is able to determine

whether the jury necessarily would have imposed a five-year

sentence if properly instructed.   The trial judge could only

speculate that the unlawfully excessive verdict could be

corrected by merely reducing it to the statutorily permissible

maximum period of imprisonment.    See, e.g., Hodges v.

Commonwealth, 213 Va. 316, 320-21, 191 S.E.2d 794, 797 (1972)

(holding that when a sentence of death was void, the Court could

not speculate that the jury would have fixed punishment at life

in prison, the maximum possible term of imprisonment, rather than

a term of years).    In Hodges and Huggins v. Commonwealth, 213 Va.
327, 191 S.E.2d 734 (1972), the Supreme Court recognized that

even a properly instructed jury's verdict cannot be summarily

reduced to the "lawful maximum sentence" where the Court is

required to speculate that the jury would have done so.      Id. at

328, 191 S.E.2d at 735-36.

     Dargan's right to a jury trial "requires more than appellate



                               - 12 -
speculation about a hypothetical jury's action."     Sullivan, 508

U.S. at 280.    The majority's conclusion that a properly

instructed jury would have sentenced Dargan to the maximum term

allowable is not only speculative but has no bearing on the

question whether Dargan was denied the right to have a properly

instructed jury make the sentencing decision.
          In Virginia, when the court sits without a
          jury, the trial judge both tries the issue of
          guilt and fixes the penalty; when the accused
          demands a jury, the jury performs both
          functions. The right to have the jury
          perform both functions is a part of the right
          of trial by jury.

Huggins, 213 Va. at 328, 191 S.E.2d at 736.    "'Trial by jury is a

sacred right, and should be sedulously guarded.'"     Supinger v.

Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815 (1998) (citation

omitted).   "[T]he right to a jury trial very likely serves its

intended purpose of making judicial or prosecutorial unfairness

less likely."    Duncan, 391 U.S. at 158.   "The constitution does

not allow an appellate court to arrogate to itself a function

that the defendant, under the [Constitution], can demand be

performed by a jury."    Rose v. Clark, 478 U.S. 570, 593 (1986)

(Blackmon, J., dissenting).

     Because a jury convicted Dargan and determined his

punishment upon improper instructions, Dargan is entitled to have

a properly instructed jury reconsider his punishment.
          Under our Constitution the right of trial by
          jury is assured in criminal cases. And where
          the defendant does not waive his right to
          trial by jury, the jury determines his guilt
          or innocence and, if guilty, ascertains his



                               - 13 -
          punishment.


Deagle, 214 Va. at 305, 199 S.E.2d at 511 (citation omitted).

Therefore, I would reverse the trial judge's ruling and remand

this case for a new sentencing hearing before a jury on the

conviction of possessing a weapon while an inmate in a

correctional facility in violation of Code § 53.1-203.   See Code

§ 19.2-295.1.   See also Davis v. Commonwealth, 17 Va. App. 666,

675, 440 S.E.2d 426, 432 (1994).




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