                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued by teleconference


TIMOTHY SHAWN DAUGHERTY
                                                               MEMORANDUM OPINION * BY
v.      Record No. 0297-11-3                                    JUDGE ROBERT P. FRANK
                                                                   NOVEMBER 1, 2011
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
                                 Charles J. Strauss, Judge

                  James C. Martin (Martin & Martin Law Firm, on brief), for
                  appellant.

                  Rosemary V. Bourne, Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellee.


        Timothy Shawn Daugherty, appellant, pled guilty to failure to appear in violation of Code

§ 18.2-456, evading and eluding in violation of Code § 46.2-817,1 and driving while under

suspension, third or subsequent offense within ten years, in violation of Code § 46.2-301. Appellant

challenges the trial court’s imposition of sentence for the failure to appear. For the reasons stated,

we reverse. 2




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
            In this appeal, defendant does not challenge the evading conviction.
        2
         Appellant initially appealed his twelve-month sentence for driving while his license was
suspended claiming that it violated the Eighth Amendment of the United States Constitution
prohibition against cruel and unusual punishment. Upon his motion prior to oral argument, the
Court allowed appellant to withdraw this assignment of error.
                                          BACKGROUND

        On March 2, 2010, appellant failed to appear in Pittsylvania General District Court. That

court issued a capias for his arrest, charging appellant with contempt of court under Code

§ 18.2-456, which sets forth the types of behavior that are punishable by summary contempt.

Subsequently, the general district court found appellant guilty of contempt and sentenced him to ten

days in jail pursuant to Code § 18.2-458. Appellant noted his appeal to the Circuit Court for

Pittsylvania County.

        On October 18, 2010 a grand jury indicted appellant for driving with a suspended operator’s

license, third or subsequent offense. On November 30, 2010, appellant pled guilty in the circuit

court to that charge and to the misdemeanor contempt for failure to appear. On January 11, 2011,

the trial court sentenced appellant to twelve months in jail for the driving offense and six months in

jail for failure to appear.

        At trial, appellant never argued that the court lacked authority to impose a six-month

sentence for summary contempt.

        This appeal follows.

                                             ANALYSIS

        Appellant contends that since he was convicted of summary contempt, Code § 18.2-4583

limits the maximum incarceration to ten days, not the six months imposed by the trial court. We

agree, as does the Commonwealth.




        3
            Code § 18.2-458 provides:

                 A judge of a district court shall have the same power and
                 jurisdiction as a judge of a circuit court to punish summarily for
                 contempt, but in no case shall the fine exceed $250, or the
                 imprisonment exceed ten days, for the same contempt.

                                                 -2-
        It is uncontested that appellant was convicted of summary contempt for failure to appear

under Code § 18.2-456, which states in part: “The courts and judges may issue attachments for

contempt, and punish them summarily, only in the cases following: . . . (5) disobedience or

resistance of an officer of the court, juror, witness or other person to any lawful process, judgment,

decree or order of the court.”

        Summary contempt is “‘[w]here the contempt is committed in the presence of the court, it

is competent for it to proceed upon its own knowledge of the facts, and to punish the offender

without further proof, and without issue or trial in any form.’” Davis v. Commonwealth, 219 Va.

395, 398, 247 S.E.2d 681, 682 (1978) (quoting Burdett v. Commonwealth, 103 Va. 838, 845-46,

48 S.E. 878, 880-81 (1904)). “A petty, direct contempt may be subject to summary

adjudication.” Gilman v. Commonwealth, 275 Va. 222, 227, 657 S.E.2d 474, 476 (2008).

Summary contempt is punishable by a fine not to exceed $250, and/or imprisonment of no more

than ten days. Code § 18.2-458.

        The circuit court is bound by Code § 18.2-458 as is the district court. The circuit court’s

appellate jurisdiction is derivative of the general district court’s jurisdiction. Davis v. County of

Fairfax, 282 Va. 23, 30, 710 S.E.2d 466, 469 (2011).

        The Commonwealth concedes the trial court erred in imposing a six-month sentence for a

summary contempt conviction. While we are not obliged to accept the Commonwealth’s

concession of legal error, Copeland v. Commonwealth, 52 Va. App. 529, 664 S.E.2d 528 (2008),

we agree with the Commonwealth. As we said in Copeland:

                        We have no obligation to accept concessions of error, see
                United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008)
                (recognizing “the government’s concession of error is not binding
                on this court”), and, to be sure, we would never do so if the issue
                were a pure question of law, Logan v. Commonwealth, 47
                Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc). “Our
                fidelity to the uniform application of law precludes us from
                accepting concessions of law made on appeal. Because the law
                                                  -3-
                applies to all alike, it cannot be subordinated to the private
                opinions of litigants.” Id.

Copeland, 52 Va. App. at 531-32, 664 S.E.2d at 529 (footnote omitted).

        The fact that appellant did not preserve this issue below is of no moment. “[A] sentence

imposed in 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.’” Rawls v.

Commonwealth, 278 Va. 213, 221, 683 S.E.2d 544, 549 (2009) (quoting Anthony v. Kasey, 83 Va.

338, 340, 5 S.E. 176, 177 (1887)). “‘A sentence in excess of that prescribed by law is not void ab

initio because of the excess, but is good in so far as the power of the court extends, and is invalid

only as to the excess.’” Id. at 218, 683 S.E.2d at 547 (quoting Royster v. Smith, 195 Va. 228,

236, 77 S.E.2d 855, 859 (1953)). An order that is void ab initio is a “complete nullity” that may be

“impeached directly or collaterally by all persons, anywhere, at any time, or in any manner.” Singh

v. Mooney, 261 Va. 48, 52, 541 S.E.2d 549, 551 (2001). A void sentence may be attacked for the

first time on appeal. See Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 756 (1990) (“[T]he

lack of subject matter jurisdiction can be raised at any time in the proceedings, even for the first

time on appeal.”).

        Based on the summary contempt violation and the sentence that exceeded the statutory

maximum of ten days in jail, we find the trial court erred in sentencing appellant to six months

for summary contempt.




                                                  -4-
                                         CONCLUSION

       Finding that the trial court sentenced appellant to a term that exceeded the statutory

maximum on the summary contempt offense, we reverse and remand for a new sentence not to

exceed a term of ten days. 4

                                                                          Reversed and remanded.




       4
           See Rawls, 278 Va. 213, 683 S.E.2d 544.
                                               -5-
