                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


JAMES B. TERRELL
                                         MEMORANDUM OPINION * BY
v.   Record No. 1669-99-2             JUDGE JERE M. H. WILLIS, JR.
                                              APRIL 11, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HANOVER COUNTY
                 H. Selwyn Smith, Judge Designate

          L. Willis Robertson, Jr. (Cosby and
          Robertson, on brief), for appellant.

          (Mark L. Earley, Attorney General; Shelly R.
          James, Assistant Attorney General, on brief),
          for appellee.


     On appeal from his conviction of abduction with the intent

to defile, in violation of Code § 18.2-48, and "felony assault,"

in violation of Code § 18.2-51, James B. Terrell contends that

the trial court erred in sentencing him to thirty years

imprisonment for "felony assault."   We find that Terrell was

convicted of unlawful wounding, in violation of Code § 18.2-51.

We reverse the sentence imposed on that conviction and remand

the case for resentencing.

     The first issue in this case is whether Terrell was

convicted of unlawful or malicious wounding.     See Code


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
§ 18.2-51.    The indictment charged that he "did unlawfully and

feloniously stab, cut, or cause bodily injury to Doris Wickowski

with the intent to maim, disfigure, disable or kill."      The

indictment contained no allegation that the act was committed

maliciously.    Thus, the indictment charged Terrell with unlawful

wounding, rather than malicious wounding.     See id.

     Terrell pled guilty to the indictment and, thus, to

unlawful wounding, a Class 6 felony.     The maximum prison

sentence provided for that offense is five years imprisonment,

rather than the maximum of twenty years imprisonment provided

for malicious wounding, a Class 3 felony.     See Code § 18.2-10.

     The sentencing order, entered June 14, 1999, states:

                  The Court SENTENCED the defendant to:
             Incarceration with the Department of
             Corrections for the term of: twenty (20)
             years for Abduction, [Code §] 18.2-48, and
             thirty (30) years for Felony Assault, [Code
             §] 18.2-51. The total sentence imposed was
             fifty (50) years.

                  The Court SUSPENDED twenty (20) years
             of the Abduction sentence, upon [certain]
             conditions . . . ."

This order, which was signed by the trial judge, became final.

     The Commonwealth contends that the trial court actually

intended to sentence Terrell for thirty years for the abduction

and twenty years for the wounding and that the June 14, 1999

order reflected a correctable clerical error.    Code § 8.01-428

provides:



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               Clerical mistakes in all judgments or
          other parts of the record and errors therein
          arising from oversight or from an
          inadvertent omission may be corrected by the
          court at any time on its own initiative or
          upon the motion of any party and after such
          notice, as the court may order. During the
          pendency of an appeal, such mistakes may be
          corrected before the appeal is docketed in
          the appellate court, and thereafter while
          the appeal is pending such mistakes may be
          corrected with leave of the appellate court.

Code § 8.01-428(B).

     "[We] must dispose of the case upon the record and cannot

base [our] decision upon appellant's petition or brief, or

statements of counsel in open court.   We may act only upon facts

contained in the record."   Smith v. Commonwealth, 16 Va. App.

630, 635, 432 S.E.2d 2, 6 (1993).    Nothing in the record of the

sentencing hearing supports the sentence suggested by the

Commonwealth; that is, that the trial court merely inverted and

misrecorded the imposed sentences.

     At sentencing the trial court stated, in relevant part:

          But I know one thing, it's just guidelines
          and all I have to is to justify -- I don't
          know whether I have to justify it; I have to
          state why I sentenced to more. But in my
          humble opinion, knowing that you will be
          serving eighty-five percent, at least
          eighty-five percent of the time I give you,
          I've taken into consideration your age, the
          sentence that I'm about to make, the age of
          your victim, the condition the victim was
          left in, where it took place, when it took
          place, and the end result being the ultimate
          that she will be suffering as far as the
          future's concerned. . . .



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                 I hear what the Commonwealth has said,
            but I'm sentencing him to thirty years in
            the penitentiary. I'm not suspending any
            portion of that because the way I figure it,
            eighty-five percent of that, if he serves
            that much time, you won't be able to get out
            until you're about twenty-five and a half
            years in the penitentiary. Add that to your
            present age at forty-one, right? You're
            forty-one years of age?

             *      *      *       *     *        *      *

                 On the abduction, the twenty years, I
            am going to suspend that -- all that time.

At no time did the trial court clarify the sentence in such a

way that the sentencing order can clearly be deemed a clerical

error.    Rather, the sentencing judge reviewed and signed the

order.    The Commonwealth lodged no objection.    No further order

has been entered.

     The twenty year sentence imposed for abduction with the

intent to defile is within the range provided by statute and is

lawful.    See Code § 18.2-48.   That sentence and its suspension

are not on appeal and are final.

     The trial court erred in sentencing Terrell to thirty years

imprisonment for a Class 6 felony, unlawful wounding.

Accordingly, we reverse and vacate that sentence and remand that

conviction to the trial court for resentencing in accordance

with Code § 18.2-51.

                                             Reversed and remanded.




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