PRESENT:   All the Justices

TIMOTHY WOODARD
                                              OPINION BY
v.   Record No. 130854             JUSTICE LEROY F. MILLETTE, JR.
                                          February 27, 2014
COMMONWEALTH OF VIRGINIA


                  FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal we consider whether the Court of Appeals of

Virginia erred when, after reversing a felony murder conviction

as not being supported by sufficient evidence, it refused to

remand to the circuit court for resentencing two felony drug

convictions, one of which supplied the underlying basis for the

felony murder conviction.

                     I.    Facts and Proceedings

      Timothy Woodard was separately indicted and charged with

(1) felony possession of 3,4-Methylenedioxymethamphetamine

("MDMA") with the intent to distribute in violation of Code

§ 18.2-248, (2) felony sale of MDMA in violation of Code § 18.2-

248, and (3) felony murder in violation of Code § 18.2-33.

Woodard pled not guilty to the indictments and waived a jury

trial.   After hearing the evidence and the arguments of counsel,

the circuit court found Woodard guilty of all three felony

offenses in the indictments.    The felony murder conviction was

based upon the victim's death caused by ingesting the MDMA

Woodard sold to the victim.
     During the sentencing hearing, the Commonwealth and Woodard

disputed the appropriate sentencing guidelines.    Woodard's

contention was that the circuit court should consider sentencing

guidelines based upon the felony sale of MDMA conviction as the

primary offense.   This would result in a lower set of guidelines

than the Commonwealth's proposed guidelines that utilized the

felony murder conviction as the primary offense.

     Although the circuit court accepted the sentencing

guidelines submitted by the Commonwealth, the court acknowledged

Woodard's proposed sentencing guidelines while making its

sentencing determinations.   The court stated that the sentences

it imposed deviated in a downward direction from the guidelines

submitted by the Commonwealth, and deviated in an upward

direction from the guidelines submitted by Woodard.   The court

noted that the particular facts of the case warranted deviating

from both sets of sentencing guidelines.

     The circuit court sentenced Woodard to (1) twenty years

with twelve years suspended for the felony conviction for

possession of MDMA with the intent to distribute, (2) five years

with three years suspended for the felony conviction for sale of

MDMA, and (3) ten years with six years suspended for the felony

murder conviction.

     Woodard timely appealed to the Court of Appeals.   Woodard

assigned error only to the circuit court's determination that


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the evidence was sufficient to support the felony murder

conviction. 1   A single judge of the Court of Appeals, by a per

curiam order, denied Woodard's appeal.    Woodard v. Commonwealth,

Record No. 2048-11-3 (May 9, 2012).    Upon Woodard's demand for

panel review pursuant to Rule 5A:15A(a), a three judge panel of

the Court of Appeals granted Woodard's appeal.     Woodard v.

Commonwealth, Record No. 2048-11-3 (Sept. 25, 2012).

     In both Woodard's Petition for Appeal and Brief of

Appellant submitted to the Court of Appeals, a section titled

"Conclusion and Relief Sought" was included.    As part of that

section in each pleading, Woodard requested as additional relief

that the Court of Appeals remand the case to the circuit court

for resentencing of Woodard's felony drug convictions.

     The Court of Appeals reversed Woodard's felony murder

conviction.     Woodard v. Commonwealth, 61 Va. App. 567, 576, 739

S.E.2d 220, 224 (2013).    However, the Court of Appeals refused

to remand the case to the circuit court for resentencing of

Woodard's two felony drug convictions on the basis that such

relief was outside of the scope of Woodard's assignment of

error.   Id. at 576 n.5, 739 S.E.2d at 224 n.5.




     1
       Woodard did not assign error to the circuit court's
rejection of his proposed sentencing guidelines that utilized
the felony sale of MDMA conviction, rather than the felony
murder conviction, as the primary offense.

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     Woodard timely filed a petition for appeal with this Court.

This appeal presents one assignment of error:

     1. The Court of Appeals erred by not remanding the two
     remaining convictions . . . for a new sentencing
     proceeding, after having reversed and dismissed the felony
     murder conviction.

                          II.    Discussion

A.   Standard of Review

     "[O]nce a court has entered a judgment of conviction of a

crime, the question of the penalty to be imposed is entirely

within the province of the [General Assembly], and the court has

no inherent authority to depart from the range of punishment

legislatively prescribed."   Starrs v. Commonwealth, 287 Va. 1,

9, 752 S.E.2d 812, ___ (2013).    However, within that range of

punishment, a sentencing court has inherent discretion to impose

the punishment it deems appropriate because "[u]nder our system,

the assessment of punishment is a function of the judicial

branch of government."    Hinton v. Commonwealth, 219 Va. 492,

496, 247 S.E.2d 704, 706 (1978).      A court's assessment of

punishment, when the sentence "does not exceed the maximum

sentence allowed by statute," is reviewed for an abuse of

discretion.   Rawls v. Commonwealth, 272 Va. 334, 351, 634 S.E.2d

697, 706 (2006).

     To the extent we interpret a statute or the Rules of the

Supreme Court, these are questions of law that we review de



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novo.    Findlay v. Commonwealth, 287 Va. 111, 114, 752 S.E.2d

868, ___ (2013); Jay v. Commonwealth, 275 Va. 510, 517, 659

S.E.2d 311, 315 (2008).

B.      Woodard's Assignments of Error

        The parties dispute whether Woodard's single assignment of

error to this Court is sufficient under Rule 5:17(c)(1).       We

hold that Woodard's assignment of error to this Court is

sufficient.    See Findlay, 287 Va. at 116, 752 S.E.2d at ___.

        The parties also dispute whether resentencing relief fell

within the scope of Woodard's single assignment of error to the

Court of Appeals.    We assume without deciding that resentencing

relief fell within the scope of Woodard's single assignment of

error to the Court of Appeals.     See Rule 5A:12(c)(1); see, e.g.,

Commonwealth v. Fairbrook Bus. Park Assocs., 244 Va. 99, 105,

418 S.E.2d 874, 878 (1992) (addressing issues within the scope

of an assignment of error, and not reaching issues beyond the

scope of the assignments of error).

C.      Whether the Circuit Court Abused Its Discretion in Imposing
        Woodard's Sentences

        The circuit court did not abuse its discretion when

imposing Woodard's sentences for his three convictions.       Each

conviction for a separate felony offense received a separate

sentence.    The circuit court's soliloquy at the sentencing

hearing showed that the court considered each felony offense



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separately when deciding the appropriate sentence.    And each

sentence fell within the range of permissible punishment

prescribed by the General Assembly.    See Code §§ 18.2-33; 18.2-

248.   Woodard does not otherwise challenge the validity of his

sentences in and of themselves, and we will not further assess

the correctness of those sentences.

D.     Whether the Discretionary Sentencing Guidelines Present a
       Basis for Remanding the Case for Resentencing

       Woodard argues that the case should be remanded to the

circuit court for resentencing because, during such a

resentencing proceeding, the sentencing guidelines will be

different than during the first sentencing hearing.      This

argument misapprehends the discretionary nature of the

sentencing guidelines.

       The General Assembly created within the judicial branch the

Virginia Criminal Sentencing Commission.    Code § 17.1-800.     The

Commission "develop[s] discretionary sentencing guidelines" to

help achieve the General Assembly's policy goals in punishing

and deterring convicted criminals.    Code § 17.1-801.   The

Commission's sentencing guidelines are presented to a trial

court in all felony cases not involving a Class 1 felony.       Code

§ 19.2-298.01(A).

       The Commission's sentencing guidelines "are discretionary,

rather than mandatory."   West v. Director, Dep't of Corr., 273



                                 6
Va. 56, 65, 639 S.E.2d 190, 196 (2007).        We underscored this

point in the context of a Strickland ineffective assistance of

counsel claim at issue in West.       We held that a counsel's

deficient performance, resulting in a defendant being convicted

of two felonies rather than one, did not prejudice the defendant

to the extent that the two convictions resulted in "an increased

range of punishment under the sentencing guidelines."        Id. at

63-65, 639 S.E.2d at 195-96.   Prejudice did not exist because

the sentencing guidelines are purely discretionary.        Id. at 65,

639 S.E.2d at 196.   We further concluded that, under Code

§ 19.2-298.01(F), 2 "the fact that the sentencing guidelines in

West's case may have been different had he been convicted only

of one, instead of two felonies," could not provide West "any

basis for post-conviction relief."       Id.

     Applying those principles, we hold that Woodard is not

entitled to seek relief through a new sentencing proceeding

because of the fact that the sentencing guidelines with a felony

murder conviction would be different than the sentencing

guidelines without a felony murder conviction.       See Code § 19.2-

298.01(F); West, 273 Va. at 65, 639 S.E.2d at 196.       Those

guidelines are discretionary and are not binding on the circuit

     2
       "The failure to follow any or all of the provisions of
this section or the failure to follow any or all of the
provisions of this section in the prescribed manner shall not be
reviewable on appeal or the basis of any other post-conviction
relief." Code § 19.2-298.01(F).

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court's determination of the appropriate sentence.      Indeed, the

circuit court expressly noted that it was deviating from the

sentencing guidelines—both the higher range of punishment from

the Commonwealth's accepted guidelines and the lower range of

punishment from Woodard's rejected guidelines—in light of the

particular facts of the case before it.

                         III. Conclusion

     The circuit court did not abuse its discretion.      Woodard

suffered no reviewable injury from the fact that the sentencing

guidelines would have been different had Woodard not been

convicted of felony murder at the time the circuit court

sentenced Woodard for his felony drug convictions.      Therefore,

the Court of Appeals did not err, after reversing Woodard's

felony murder conviction, in refusing to remand Woodard's two

felony drug convictions to the circuit court for resentencing.

Accordingly, we will affirm the judgment of the Court of

Appeals.

                                                             Affirmed.



JUSTICE McCLANAHAN, concurring.

     I agree with the majority that the Court of Appeals did not

err in refusing to remand Woodard’s case for resentencing of his

two remaining drug convictions.       However, I believe the Court of

Appeals correctly determined that the remand and resentencing


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issue was not properly before it, and I would affirm the

decision rendered by the Court of Appeals without reaching the

merits of Woodard’s claim.

     In his petition to the Court of Appeals, Woodard included

only one assignment of error challenging the sufficiency of the

evidence supporting his felony murder conviction.    He did not

assign error to the circuit court’s use of the felony murder

sentencing guidelines.

     Under Rule 5A:12(c)(1)(i), “[o]nly assignments of error

assigned in the petition for appeal will be noticed by [the

Court of Appeals].”   In Amin v. County of Henrico, 286 Va. 231,

235, 749 S.E.2d 169, 170 (2013) (emphasis added), we interpreted

this requirement and stated that “[o]rdinarily when a party

fails to comply with Rule 5A:12, the Court of Appeals may refuse

to consider any assignment of error that is . . . not properly

included in the petition for appeal.” *   Because Woodard failed to

assign error to the circuit court’s use of the felony murder

sentencing guidelines, the Court of Appeals did not err in

declining to consider that issue.




     *
       The only exception to this rule that we have recognized
applies to judgments that are void ab initio. See Singh v.
Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001). Woodard
does not argue here that the circuit court’s judgment is void ab
initio.

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