                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Huff, Judge Petty and Senior Judge Annunziata
PUBLISHED


            Argued at Lexington, Virginia


            ELLIOTT THOMAS WEBB, JR.
                                                                               OPINION BY
            v.     Record No. 2181-13-3                               JUDGE ROSEMARIE ANNUNZIATA
                                                                            FEBRUARY 24, 2015
            COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF PULASKI COUNTY
                                            Marcus H. Long, Jr., Judge

                            Ryan D. Hamrick (Daniel D. Hamrick, P.C., on briefs), for
                            appellant.

                            Leah A. Darron, Senior Assistant Attorney General (Mark R.
                            Herring, Attorney General, on brief), for appellee.


                   Elliott Thomas Webb, Jr. (“appellant”) was convicted in a jury trial of cocaine

            distribution, after having been convicted two or more times of violating Code § 18.2-248.

            Following his conviction, the jury recommended a sentence of thirty years and a $500,000 fine,

            and the trial court imposed the recommended sentence. On appeal, he asks that we reverse and

            remand the trial court’s judgment with regard to sentencing because the jury’s sentencing verdict

            was not unanimous. Because the record clearly indicates the sentencing verdict was not

            unanimous, we reverse the trial court’s judgment with respect to sentencing only and remand for

            further proceedings under Code § 19.2-295.1.

                   The pertinent facts are not in dispute. Following the guilt phase, the jury returned a

            verdict of guilty, and defense counsel asked to have the jury polled. The clerk asked the jurors to

            “answer yes if this is your verdict.” The clerk called each juror by name, and each juror


                   
                       On January 1, 2015, Judge Huff succeeded Judge Felton as chief judge.
responded affirmatively. The jury heard evidence and argument regarding sentencing and retired

to deliberate. After announcing its decision on sentencing, defense counsel asked to have the

jury polled again. Upon calling out the jurors’ names, the second juror answered, “No.”1 The

trial court did not react to the polling results, and neither attorney objected or made a motion in

response to the jury’s lack of unanimity. On July 25, 2013, the trial court entered an order

reflecting the jury’s guilty verdict and its sentencing decision. Following the preparation of a

pre-sentence report, the trial court adopted the jury’s recommendation and sentenced appellant

accordingly on October 24, 2013.2

       Appellant did not attack the sentencing verdict until he filed a petition for appeal with

this Court. He now argues he was entitled to a unanimous jury verdict at sentencing. He

acknowledges he did not object to the sentencing verdict at trial, but asks that we consider his

argument on appeal pursuant to the ends of justice exception in Rule 5A:18.

       “A trial court’s assessment of punishment is reviewed under an abuse of discretion

standard.” Commonwealth v. Greer, 63 Va. App. 561, 567, 760 S.E.2d 132, 135 (2014). “A trial

court ‘by definition abuses its discretion when it makes an error of law . . . .’” Id. at 568, 760

S.E.2d at 135 (quoting Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008)

(citation omitted). “To the extent that determinations regarding sentencing involve the

interpretation of a statute or the common law, such an interpretation is a question of law

reviewed de novo on appeal.” Id.

       We recognize a defendant has neither a federal nor state constitutional right to have a jury

decide his sentence. See id. at 572, 760 S.E.2d at 137. See also Fogg v. Commonwealth, 215


       1
         Neither appellant nor the Commonwealth contests the accuracy of the transcript
recording the jurors’ responses during polling.
       2
        The July and October orders do not state whether the verdicts at the guilt and sentencing
stages were unanimous.
                                             -2-
Va. 164, 166, 207 S.E.2d 847, 849 (1974). Even at the guilt stage, a defendant in a state criminal

proceeding has no constitutional right to a unanimous verdict under the Sixth Amendment. See

Manns v. Commonwealth, 213 Va. 322, 324, 191 S.E.2d 810, 813 (1972). See also Prieto v.

Commonwealth, 283 Va. 149, 180, 721 S.E.2d 484, 503 (2012) (“The Sixth Amendment ‘does

not require a unanimous jury verdict in state criminal trials.’” (quoting McDonald v. City of

Chicago, 561 U.S. 742, 766 n.14 (2010))). Likewise, the Fourteenth Amendment does not

extend the right to a unanimous verdict to a defendant in state criminal trial. See McDonald, 561

U.S. at 766 n.14.

        Under Virginia law, the right to a unanimous verdict is addressed by the Constitution of

Virginia, at the guilt stage, and by statute, at the sentencing stage. Pursuant to Article I, Section

8, of the Constitution of Virginia, a defendant has a right to a unanimous verdict at the guilt

stage. Article I, Section 8 provides that “in criminal prosecutions a man . . . shall enjoy the right

to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous

consent he cannot be found guilty.” Va. Const. art. I, § 8.

                In Virginia, when the court sits without a jury, the trial judge both
                tries the issue of guilt and fixes the penalty; when the accused
                demands a jury, the jury performs both functions. Code
                §§ 19.1-192, -291 and -292. The right to have the jury perform
                both functions is a part of the right of trial by jury.

Huggins v. Commonwealth, 213 Va. 327, 328, 191 S.E.2d 734, 736 (1972). “The choice of

sentencing procedures is a matter for legislative determination.” Duncan v. Commonwealth, 2

Va. App. 342, 344, 343 S.E.2d 392, 393 (1986) (citing Ballard v. Commonwealth, 228 Va. 213,

218, 321 S.E.2d 284, 287 (1984)). “Code § 19.2-295.1, which became effective July 1, 1994,

provides that after a guilty verdict in a jury trial, ‘a separate proceeding limited to the

ascertainment of punishment shall be held as soon as practicable before the same jury.’” Bunn v.




                                                 -3-
Commonwealth, 21 Va. App. 593, 597, 466 S.E.2d 744, 746 (1996) (quoting Code

§ 19.2-295.1).

                 [It] establishes the procedure for bifurcating felony trials by jury.
                 “The purpose of the bifurcated trial is to allow the trier of fact to
                 consider the prior . . . record of the accused for sentencing
                 purposes while avoiding the risk of prejudice to the accused when
                 determining guilt or innocence.” Gilliam v. Commonwealth, 21
                 Va. App. 519, 523, 465 S.E.2d 592, 594 (1996).

Byrd v. Commonwealth, 30 Va. App. 371, 373-74, 517 S.E.2d 243, 244 (1999) (citation and

inner quotation marks omitted).

        Thus, pursuant to Code § 19.2-295.1, the legislature determined that the jury would

decide sentencing in a separate proceeding after reaching a decision regarding a defendant’s guilt

or innocence. We construe Code § 19.2-295.1 in conjunction with Code § 19.2-295, which

provides a defendant with a statutory right to have a jury ascertain his punishment, subject to

certain limitations and qualifications. See Boyd v. Commonwealth, 28 Va. App. 537, 542, 507

S.E.2d 107, 110 (1998) (holding that “the legislature intended the procedures outlined in Code

§ 19.2-295.1 for the jury’s ascertainment of punishment to be subject to . . . Code § 19.2-295

. . . ; and . . . Code § 19.2-295.2 . . .”).

        Code § 19.2-295 provides as follows:

                 Ascertainment of punishment

                 A. Within the limits prescribed by law, the term of confinement in
                 the state correctional facility or in jail and the amount of fine, if
                 any, of a person convicted of a criminal offense, shall be
                 ascertained by the jury, or by the court in cases tried without a
                 jury.

                 B. In any case in which a jury has fixed a sentence as provided in
                 this chapter and the sentence is modified by the court pursuant to
                 the authority contained within this chapter, the court shall file with
                 the record of the case a written explanation of such modification
                 including the cause therefor.



                                                  -4-
(Emphasis added). We conclude that, upon the election of trial by jury, a defendant has a

statutory right, pursuant to Code §§ 19.2-295 and 19.2-295.1, and subject to limitations and

qualifications established by the legislature, to have his punishment ascertained by a jury. See

also Rawls v. Commonwealth, 278 Va. 213, 221, 683 S.E.2d 544, 549 (2009).

       Code § 19.2-295.1 outlines the appropriate course of action in the event a jury cannot

reach a unanimous verdict as to punishment. It states in pertinent part as follows:

                       In cases of trial by jury, upon a finding that the defendant is
               guilty of a felony or a Class 1 misdemeanor, . . . a separate
               proceeding limited to the ascertainment of punishment shall be
               held as soon as practicable before the same jury.

                                *     *     *    *     *     *     *

                       If the jury cannot agree on a punishment and if the
               defendant, the attorney for the Commonwealth, and the court
               agree, in the manner provided in § 19.2-257, then the court shall
               fix punishment.

                       If the sentence imposed pursuant to this section is
               subsequently set aside or found invalid solely due to an error in the
               sentencing proceeding, the court shall impanel a different jury to
               ascertain punishment, unless the defendant, the attorney for the
               Commonwealth and the court agree, in the manner provided in
               § 19.2-257,3 that the court shall fix punishment.

(Emphasis added).

       Here, the verdict was not unanimous, as “the jury [could not] agree on a punishment.”

Cf. Clark v. Commonwealth, 220 Va. 201, 212, 257 S.E.2d 784, 791 (1979) (construing similar

language in Code § 19.2-264.4(E) (now Code § 19.2-264.4(D)) to require a unanimous verdict).

See also Rule 3A:17.1(h) (providing that, “[s]hould the jury fail to reach unanimous agreement

as to punishment on any charge for which it returned a verdict of guilty, the court shall impanel a

different jury to ascertain the punishment, unless the defendant, the attorney for the


       3
         Code § 19.2-257 provides that a defendant who pleads not guilty may waive a jury trial
“after being advised by counsel and [with] the concurrence of the attorney for the
Commonwealth and of the court of record . . . .”
                                               -5-
Commonwealth and the court agree that the court shall fix punishment . . .” (emphasis added)).

Thus, the trial court was obligated under Code § 19.2-295.1 to reject the jury’s verdict and either

impanel a new jury or, with the parties’ consent, to decide appellant’s sentence itself. By

pursuing neither course, the jury sentence imposed by the trial court violated Code § 19.2-295.1.

       “[W]hen a juror clearly ‘understands the import of the question presented by the court in

the polling of the jury’ and ‘answers that his or her belief is contrary to the verdict rendered, the

verdict is not unanimous and cannot be accepted.’” Humbert v. Commonwealth, 29 Va. App.

783, 792-93, 514 S.E.2d 804, 808-09 (1999) (quoting Carver v. Commonwealth, 17 Va. App. 7,

11, 434 S.E.2d 916, 918 (1993)) (footnote omitted). Because the jury did not return a unanimous

verdict, appellant was deprived of his statutory right to have the jury ascertain his punishment

pursuant to Code § 19.2-295. Thus, the trial court’s error in accepting the verdict was “clear,

material and substantial.” See Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11

(1989) (applying the ends of justice exception to Rule 5A:18).

       Accordingly, we hold that a miscarriage of justice occurred when the trial court accepted

a non-unanimous sentencing verdict from the jury. We reverse the trial court’s judgment solely

with regard to sentencing and remand the case for further proceedings pursuant to Code

§ 19.2-295.1.

                                                                       Reversed and remanded.




                                                 -6-
