                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Felton, Judges Elder and Petty
PUBLISHED


            Argued at Richmond, Virginia


            LATASHA MICHELLE GORDON
                                                                                OPINION BY
            v.     Record No. 0940-12-2                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                                APRIL 2, 2013
            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF RICHMOND COUNTY
                                          Harry T. Taliaferro, III, Judge

                           Nicholas C. Smith (Smith & Smith, on brief), for appellant.

                           Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   Latasha Michelle Gordon (“appellant”) appeals two convictions of unlawful wounding, in

            violation of Code § 18.2-51, following a bench trial in the Circuit Court of Richmond County (“trial

            court”). She asserts that the trial court erred by imposing separate ten-year sentences for each

            conviction of unlawful wounding. She notes that the maximum sentence permitted by statute for

            unlawful wounding, a Class 6 felony, is five years’ incarceration. Code § 18.2-10(f).

                                                    I. BACKGROUND

                   Appellant lived with Harrison Veney (“Harrison”) in Richmond County. On September 3,

            2011, she and Harrison argued. During the argument, appellant cut Harrison and his brother,

            Columbus Veney, with a knife. By the time law enforcement officers responded to the scene,

            appellant had absconded with Harrison’s cellular phone.
        The trial court found appellant guilty of two counts of unlawful wounding and one count of

petit larceny. 1 At the sentencing hearing, the Commonwealth recommended to the trial court that it

sentence appellant to ten years’ incarceration for each conviction of unlawful wounding, with nine

years suspended on the first conviction, and nine years and nine months suspended on the second

conviction. Appellant asked the trial court to impose “an active sentence that is the mid point [sic]

in the guidelines.” The trial court sentenced appellant to ten years’ imprisonment, with eight years

and six months suspended, on the first count of unlawful wounding, and to ten years’ imprisonment,

with all ten years suspended, on the second count of unlawful wounding. It ordered that appellant

serve those sentences consecutively, for a total active sentence of one year and six months’

incarceration. 2

                                            II. ANALYSIS

        Appellant contends the trial court erred by sentencing her to ten years’ incarceration for each

conviction of unlawful wounding. She asserts that the maximum penalty permitted by statute for a

conviction of unlawful wounding, a Class 6 felony, is five years’ incarceration. See Code

§§ 18.2-10(f), 18.2-51.

                                            A. Rule 5A:18

        Appellant failed to object to the trial court’s order sentencing her to ten years’ incarceration

for each of her convictions of unlawful wounding. She asks this Court to consider her argument


        1
         Appellant appealed her convictions in all three cases. On October 31, 2012, this Court
granted her an appeal limited to one assignment of error which pertained only to the unlawful
wounding convictions. Gordon v. Commonwealth, No. 0940-12-2 (Va. Ct. App. Oct. 31, 2012).
Accordingly, appellant’s conviction of petit larceny is not before us on appeal.
        2
          The trial court sentenced appellant to twelve months’ incarceration for petit larceny,
with all twelve months suspended. It ordered appellant’s sentence for petit larceny to run
concurrently with her two sentences for unlawful wounding. Because “the errors that occurred
during the [sentencing] phase of the trial affected only the sentences for the [unlawful wounding]
convictions, the remand will likewise be limited to those convictions.” Andrews v.
Commonwealth, 280 Va. 231, 241 n.2, 699 S.E.2d 237, 242 n.2 (2010).
                                                 -2-
that the trial court erred by sentencing her to a period of incarceration exceeding the statutory

maximum under the “ends of justice” exception to Rule 5A:18.

                “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
                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.”

Legette v. Commonwealth, 33 Va. App. 221, 224, 532 S.E.2d 353, 354 (2000).

        “[A] sentence imposed in violation of a prescribed statutory range of punishment is void

ab initio . . . .” Rawls v. Commonwealth, 278 Va. 213, 221, 683 S.E.2d 544, 549 (2008).

“Denying [a defendant] his liberty on the basis of a void sentence would impose a grave injustice

upon him[, and t]he application of the ends of justice exception is, therefore, fully justified . . . .”

Charles v. Commonwealth, 270 Va. 14, 20, 613 S.E.2d 432, 435 (2005). Here, the trial court

sentenced appellant to a term of incarceration of ten years for each of two convictions of

unlawful wounding. Because Code § 18.2-10(f) authorizes the imposition of a maximum five

years’ incarceration for unlawful wounding, a Class 6 felony, the sentence is invalid. The ends

of justice exception to Rule 5A:18 applies. Accordingly, we consider appellant’s argument that

the trial court erred by imposing a sentence for unlawful wounding that exceeded the statutory

maximum.

                                        B. Unlawful Sentence

        The Code of Virginia dictates that the maximum sentence for a conviction of unlawful

wounding, a Class 6 felony, is five years’ imprisonment. See Code §§ 18.2-10(f), 18.2-51. The

trial court erred by sentencing appellant to ten years’ incarceration for each conviction of

unlawful wounding.



                                                  -3-
        The only issue remaining for this Court to determine is the proper remedy for the trial

court’s error.

                                                C. Remedy

        Appellant contends this Court must remand each case for retrial. However, “[b]ecause

the error could have affected only the sentence and because the sentence was imposed by a trial

court sitting without a jury, we may set aside that part of the final judgment” without remand for

retrial. Woodward v. Commonwealth, 16 Va. App. 672, 676, 432 S.E.2d 510, 513 (1993).

        Citing Dargan v. Commonwealth, 27 Va. App. 495, 500 S.E.2d 228 (1998) (en banc),

and Hines v. Commonwealth, 59 Va. App. 567, 721 S.E.2d 792 (2012), the Commonwealth

contends that

                 in [case number CR11-114], the [trial court] sentenced [appellant]
                 on one unlawful wounding offense to what the court perceived as
                 the maximum sentence allowed, and then suspended the entire
                 sentence. On this offense, a new sentencing hearing is
                 unnecessary. The intent of the trial court is clear. In this case, the
                 excessive portion of the invalid sentence can be deleted (five
                 years) and the remaining maximum sentence of five years, all
                 suspended, can be imposed.

                                        *   *    *    *    *   *   *

                 Regarding [case number CR11-113], the court again imposed
                 [what it believed to be] the maximum potential punishment. With
                 regard to this conviction, this Court could eliminate five of the ten
                 years imposed and affirm the judgment except as to the length of
                 the suspended sentence. Only that aspect of the judgment of the
                 trial court should be remanded for reconsideration.

Commonwealth Br. at 6-7.

        Contrary to the Commonwealth’s assertion, there is no indication in the record that the

trial court sentenced appellant “to what the court perceived as the maximum sentence allowed”

for unlawful wounding. Id. at 6. The trial court did not state, explicitly or otherwise, that it

intended to impose the maximum sentence for each of the two convictions of unlawful


                                                     -4-
wounding. Accordingly, we cannot agree with the Commonwealth’s assertion that the trial court

intended to impose what it “perceived as the maximum sentence allowed” for unlawful

wounding. Id.

       In addition, we conclude that the Commonwealth’s reliance on Dargan and Hines is

misplaced. In Dargan, the trial court erroneously instructed the jury that the maximum penalty

for conviction of possession of a weapon in a corrections facility was ten years’ incarceration.

The jury sentenced the defendant to ten years’ incarceration, and the trial court imposed the

sentence set by the jury. Nearly two months after the sentencing hearing, the trial court ruled

that the jury had been erroneously instructed and that the ten-year sentence imposed exceeded

the five-year maximum sentence authorized by law. Over Dargan’s objection, the trial court set

aside five years of the ten-year sentence and imposed a sentence of five years’ imprisonment.

On appeal, this Court affirmed, holding that:

                “A sentence in excess of one 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.”

                                       *   *   *    *    *   *   *

                Therefore, . . . the trial court did not err in conforming the sentence
                to a term permitted by law.

Dargan, 27 Va. App. at 498-99, 500 S.E.2d at 229-30 (quoting Deagle v. Commonwealth, 214

Va. 304, 305, 199 S.E.2d 509, 510-11 (1973)).

       In Rawls, a case decided after Dargan, the Supreme Court held that the appellate courts

“ha[d] not acted uniformly when determining whether a defendant, who received an improper

sentence, was entitled to a new sentencing hearing.” 278 Va. at 220, 683 S.E.2d at 548. In

Rawls, the Supreme Court adopted a rule

                that is designed to ensure that all criminal defendants whose
                punishments have been fixed in violation of the statutorily
                prescribed ranges are treated uniformly without any speculation.
                                                   -5-
               We hold that 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.” Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176,
               177 (1887); accord Evans v. Smyth-Wythe Airport Common, 255
               Va. 69, 73, 495 S.E.2d 825, 828 (1998). Thus, a criminal
               defendant in that situation is entitled to a new sentencing hearing.

Id. at 221, 683 S.E.2d at 549.

       Consistent with Rawls, this Court has no authority to strike the excessive portion of

appellant’s sentences for unlawful wounding and impose the statutory maximum sentence for

each conviction.

       Hines does not compel a different result. The trial court sentenced Hines to twenty years’

incarceration for each of two robbery convictions and ten years’ incarceration for one conviction

of use of a firearm. Hines asserted on appeal to this Court that the trial court erred by imposing a

ten-year sentence for the use of a firearm conviction. He argued that Code § 18.2-53.1

established the maximum sentence to be three years’ incarceration. On appeal, this Court held

that the trial court erred by imposing a ten-year sentence for the use of a firearm conviction,

concluding that the “mandatory minimum” language of Code § 18.2-53.1 provided that the trial

court could sentence a defendant only to a mandatory term of imprisonment of three years for the

first conviction. The case was remanded “with instructions for entry of an order consistent with

this opinion,” but was not remanded for a new sentencing hearing. Hines, 59 Va. App. at 581,

721 S.E.2d at 798.

               Ordinarily, “a criminal defendant . . . is entitled to a new
               sentencing hearing” where “a sentence [is] imposed in violation of
               a prescribed statutory range of punishment.” Rawls, 278 Va. at
               221, 683 S.E.2d at 549. However, because a term of three years
               imprisonment is the only available sentence for the trial court to




                                                -6-
                impose, a new sentencing hearing is unnecessary. Accordingly, we
                need not remand for a new sentencing hearing.

Id. at 581 n.7, 721 S.E.2d at 798 n.7 (emphasis added) (citation omitted). 3

        Here, unlike in Hines, the five-year maximum sentence for unlawful wounding is not “the

only available sentence for the trial court to impose.” Id. Code § 18.2-10(f) provides the trial

court with the discretion to impose, “[f]or Class 6 felonies, a term of imprisonment of not less

than one year nor more than five years, or in the discretion of . . . the court . . . , confinement in

jail for not more than 12 months and a fine of not more than $2,500, either or both.” Neither

Code § 18.2-10(f) nor Code § 18.2-51 compels the trial court to impose the maximum term of

incarceration for unlawful wounding. While, on remand, the trial court is free to impose the

maximum term of incarceration, it is not required to do so.

        Because this Court can only speculate as to the sentence the trial court might impose on

remand for each conviction of unlawful wounding, a Class 6 felony, using the correct statutory

sentencing range, we remand each case to the trial court for resentencing.

                                                                                            Remanded.




        3
          Hines relied primarily on Rawls, 278 Va. 213, 683 S.E.2d 544, to reach this result, but
also cited Dargan, 27 Va. App. 495, 500 S.E.2d 228. To the extent that this Court’s decision in
Dargan conflicts with the Supreme Court’s subsequent decision in Rawls, Rawls controls.
                                               -7-
