                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued by teleconference


WILLIAM A. DERRICK
                                           MEMORANDUM OPINION * BY
v.   Record No. 2295-00-1                   JUDGE ROBERT P. FRANK
                                                JUNE 26, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Edward W. Hanson, Jr., Judge

            Ben Pavek, Assistant Public Defender (Office
            of the Public Defender, on brief), for
            appellant.

            Phillip C. Hollowell, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.


     William A. Derrick (appellant) was convicted by a jury of

driving while intoxicated, third or subsequent offense, a felony

in violation of Code § 18.2-266. 1   The jury recommended a sentence

of fifteen months.   Upon receiving a pre-sentence report and

hearing argument, the trial court sentenced appellant to fifteen

months in jail with four months suspended, conditioned upon good

behavior for two years, supervised probation and successful

completion of the Diversion Center Program.    On appeal, appellant

contends the trial court abused its discretion in not suspending


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
         Appellant does not appeal the conviction.
the entire period of incarceration.       For the reasons stated

herein, we find no abuse of discretion and affirm the sentence.

     In this Court's order granting appellant's petition for

appeal, a judge of this Court directed the parties to address

whether the trial court had the authority to sentence appellant to

fifteen months in jail and whether Rule 5A:18 bars review of the

issue.

     In his brief addressing those issues, appellant conceded the

trial court had the authority to sentence a felon to jail.

Appellant further stated that appellant would "prefer a local jail

sentence from being incarcerated in a state penitentiary." 2

Furthermore, at trial, appellant did not object to the

fifteen-month jail sentence.      Indeed, he does not object to it on

appeal.

                  "The Court of Appeals will not consider
             an argument on appeal which was not presented
             to the trial court." Ohree v. Commonwealth,
             26 Va. App. 299, 308, 494 S.E.2d 484, 488
             (1998) (citing Jacques v. Commonwealth, 12
             Va. App. 591, 593, 405 S.E.2d 630, 631
             (1991)).   However, Rule 5A:18 provides for

     2
         Code § 18.2-15 states:

                  Imprisonment for conviction of a felony
             shall be by confinement in a state
             correctional facility, unless in Class 5 and
             Class 6 felonies the jury or court trying
             the case without a jury fixes the punishment
             at confinement in jail. Imprisonment for
             conviction of a misdemeanor shall be by
             confinement in jail.

         In this case, appellant was convicted of a Class 6 felony.


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           consideration of a ruling by the trial court
           that was not objected to at trial "to enable
           the Court of Appeals to attain the ends of
           justice." "'The ends of justice exception is
           narrow and is to be used sparingly'" when an
           error at trial is "'clear, substantial and
           material.'" Redman v. Commonwealth, 25 Va.
           App. 215, 220-21, 487 S.E.2d 269, 272 (1997)
           (quoting Brown v. Commonwealth, 8 Va. App.
           126, 132, 380 S.E.2d 8, 10-11 (1989)). "In
           order to avail oneself of the exception, a
           defendant must affirmatively show that a
           miscarriage of justice has occurred, not that
           a miscarriage might have occurred." Id. at
           221, 487 S.E.2d at 272 (citing Mounce v.
           Commonwealth, 4 Va. App. 433, 436, 357 S.E.2d
           742, 744 (1987)).

Legette v. Commonwealth, 33 Va. App. 221, 224, 532 S.E.2d 353, 354

(2000).   We see no reason to invoke the "ends of justice"

exception and, therefore, do not address this issue on the merits.

     We next address appellant's contention that the trial court

abused its discretion in not suspending his entire sentence.   At

sentencing, appellant argued his entire sentence should be

suspended because he was accepted into the Diversion Program of

the Department of Corrections.    After the trial court sentenced

appellant to fifteen months with four months suspended, the trial

court stated, "This is your last chance.   Maybe you've learned

something."   Appellant's counsel replied, "I certainly hope so

judge; and I appreciate the court's discretion."

     We find that the trial court did not abuse its discretion in

not suspending the entire sentence.

     "[W]hen a statute prescribes a maximum imprisonment penalty

and the sentence does not exceed that maximum, the sentence will

                                 - 3 -
not be overturned as being an abuse of discretion."    Abdo v.

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977) (citing

Perry v. Commonwealth, 208 Va. 283, 156 S.E.2d 566 (1967)).

     The first clause of Code § 19.2-303 gives broad power to the

trial court to determine the conditions of a suspended sentence.

Code § 19.2-303.   Sentencing statutes "confer upon trial courts

'wide latitude' and much 'discretion in matters of suspension and

probation . . . to provide a remedial tool . . . in the

rehabilitation of criminals' and, to that end, 'should be

liberally construed.'"   Deal v. Commonwealth, 15 Va. App. 157,

160, 421 S.E.2d 897, 899 (1992) (citations omitted).    "Sentencing

statutes are to be liberally construed to give the trial court

broad discretion."    Bazemore v. Commonwealth, 25 Va. App. 466,

468, 489 S.E.2d 254, 255 (1997) (citing Deal, 15 Va. App. at 160,

421 S.E.2d at 899).

     The trial court ultimately suspended four months of the

fifteen-month sentence fixed by the jury.   The evidence before the

trial court was that appellant had been convicted of driving while

intoxicated on five prior occasions.    The evidence also revealed

that when appellant got out of his vehicle, he was stumbling and

had to hold onto the door for support.   His speech was slurred,

and his eyes were red and glassy.

     At sentencing, appellant testified he was regularly going to

Alcoholics Anonymous meetings and attends counseling.   Appellant

admitted he had been convicted of driving under the influence in

                                - 4 -
New York and, as a result, was sentenced to one year in jail and

attended alcohol rehabilitation programs in New York.   Appellant

further admitted he had relapsed.

     Based on appellant's six driving while intoxicated

convictions, the trial court would not have abused its discretion

in suspending none of the fifteen-month sentence.   Therefore, we

hold that requiring appellant to serve eleven months is not an

abuse of discretion.   Appellant's sentence is, therefore,

affirmed.



                                                             Affirmed.




                               - 5 -
Benton, J., concurring and dissenting.

     I would affirm the conviction.      I would remand for

resentencing, however.

     The jury convicted William A. Derrick of the Class 6 felony

of driving a motor vehicle while under the influence of alcohol

after having previously been convicted of the same offense on

two or more occasions.     See Code §§ 18.2-266 and 18.2-270.   "The

authorized punishments for . . . Class 6 felonies [are] a term

of imprisonment of not less than one year nor more than five

years, or in the discretion of the jury or the court trying the

case without a 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.   Consistent with the provisions of this

statute, Code § 18.2-15 provides, in pertinent part, that

"[i]mprisonment for conviction of a felony shall be by

confinement in a state correctional facility, unless in Class 5

and Class 6 felonies the jury or court trying the case without a

jury fixes the punishment at confinement in jail."

     The jury fixed Derrick's punishment at "a specific term of

imprisonment of fifteen months."    At the sentencing hearing, the

trial judge said he would "sentence [Derrick] -- as recommended

by the jury on [the] conviction of driving under the influence

third or subsequent offense, . . . to fifteen months of




                                 - 6 -
incarceration" and suspend four months on various prescribed

conditions.   The final conviction order recites, however, that

the sentence is "[i]ncarceration in the Jail of this City for

the term of . . . 15 months."

     Although Derrick acknowledges on brief that he "does prefer

a local jail sentence" and the Commonwealth asserts "[t]he trial

court did not exceed its authority by sentencing [Derrick] to

fifteen months confinement in the city jail," I believe the

final order is facially at odds with the trial judge's oral

pronouncement of imposing the sentence "as recommended by the

jury" and with Code §§ 18.2-10 and 18.2-15.   Obviously, if the

trial judge wished to sentence Derrick to a term in the city

jail, he had the authority to modify the sentence the jury

fixed, see Batts v. Commonwealth, 30 Va. App. 15-16, 515 S.E.2d

314-15 (1999), and impose a confinement in the jail for a term

not to exceed twelve months.    Code § 18.2-10.

     Although in other cases we have construed sentencing orders

to comply with the law, see Wilson v. Commonwealth, 23 Va. App.

318, 326, 477 S.E.2d 7, 10 (1996), in this case an ambiguity

exists.   As drafted, the final order represents either a

clerical error or "[a] sentence in excess of one proscribed by

law . . . [, which] is good insofar as the power of the court

extends, and is invalid . . . as to the excess."   Deagle v.

Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 511 (1973).     In



                                - 7 -
either event, the conviction order violates the statutory

limitation on the amount of time of confinement in jail.

     For these reasons, I would remand for resentencing.




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