COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Kelsey and Chafin UNPUBLISHED
Argued at Richmond, Virginia
EARL BRADLEY, S/K/A EARL LEWIS BRADLEY MEMORANDUM OPINION * BY v. Record No. 1194-12-2 JUDGE TERESA M. CHAFIN JUNE 4, 2013 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D’Alton, Jr., Judge
David B. Hargett (Hargett Law, PLC, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Earl Lewis Bradley (“appellant”) challenges the sufficiency of the evidence to support his
conviction of possession of cocaine with the intent to distribute. He also asserts that the trial
court exceeded its authority by sentencing him beyond the statutory maximum sentence for
possession with the intent to distribute marijuana.
I. BACKGROUND
When police executed a search warrant at a residence in the City of Petersburg on
September 25, 2010, they recovered a pair of jeans on the floor next to the bed in the room where
appellant was sleeping with a woman, G.P. 1 Inside the front left pocket of the jeans, police
recovered a knotted bag of cocaine. The bag held two individual bags, one contained .39 gram
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Besides appellant and G.P., the only other person in the house when police executed the search warrant was appellant’s mother. of solid material and the other contained 2.39 grams of powder material. The police also found a
plastic baggy corner containing marijuana in the coin pocket of the jeans and $2,211.15 in the
right pocket. When police interviewed appellant at the house, he admitted that the jeans and the
contraband inside the jeans belonged to him.
Police found a loaded silver Taurus PT 099.9 millimeter firearm in the dresser in the
room where appellant and G.P. slept. DNA testing could not eliminate appellant as a contributor
to a mixture of DNA found on that firearm. In the same bedroom, the police also found an
eight-page court document and a Walgreens prescription card, both of which displayed
appellant’s name, as well as an opened letter addressed to “Earl Bradley” from a lawyer on top of
the night stand. Police also located an empty sandwich bag box in a dresser drawer and observed
two digital scales on the dining room table in plain view.
Sergeant Shane Noblin, an expert in drug distribution, drug sales, and illegal narcotics,
testified that the cocaine found inside the jeans was inconsistent with personal use. He testified
that the amount of powder cocaine recovered was equivalent to almost 30 doses of cocaine and
had a value of $125 or $130. Noblin also stated that the total street value of all the cocaine in the
jeans was $165 and that the average user buys between $20 and $50 worth of cocaine at a time.
Appellant testified that although he was in his mother’s house the night the search
warrant was executed and that he “maintained” his mail there, he did not live at his mother’s
house. Appellant denied that the pants recovered were his. In addition, appellant denied telling
the police that he was the owner of the pants and the drugs found within them. Appellant denied
that G.P. was his girlfriend, but admitted “hooking up” with her before. However, appellant
admitted that the documents recovered from the bedroom were his.
-2- II. ANALYSIS
A. Sentence Exceeding Statutory Maximum
Appellant contends that the trial court erred by imposing a sentence that exceeded the
statutory maximum for the marijuana conviction. Appellant failed to object to the trial court’s
order sentencing him to five years incarceration, all suspended, for the marijuana conviction, but
asks this Court to consider this argument under the “ends of justice” exception to Rule 5A:18.
However, appellant’s failure to preserve this issue is of no consequence. “[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 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) (citation and internal quotation marks
omitted). 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.”).
The record reflects that the trial court granted appellant’s motion to strike the felony
marijuana charge, citing the insufficiency of the evidence to prove that the marijuana weighed
more than one-half ounce as required by Code § 18.2-248.1(a)(2). Thus, the trial court reduced
the charge to “simple possession, less than a half ounce,” a Class 1 misdemeanor with a
-3- maximum sentence of 12 months in jail pursuant to Code § 18.2-248.1(a)(1). However, the trial
court proceeded to sentence appellant to five years in prison, all suspended, for the marijuana
conviction.
The Commonwealth concedes that the trial court erred in imposing a five-year sentence
for a misdemeanor possession of marijuana 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 applies to all alike, it cannot be subordinated to the private opinions of litigants.” Id.
Id. at 531-32, 664 S.E.2d at 529 (footnote omitted).
In Rawls, 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. The Supreme Court adopted a rule
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COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Kelsey and Chafin UNPUBLISHED
Argued at Richmond, Virginia
EARL BRADLEY, S/K/A EARL LEWIS BRADLEY MEMORANDUM OPINION * BY v. Record No. 1194-12-2 JUDGE TERESA M. CHAFIN JUNE 4, 2013 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG James F. D’Alton, Jr., Judge
David B. Hargett (Hargett Law, PLC, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Earl Lewis Bradley (“appellant”) challenges the sufficiency of the evidence to support his
conviction of possession of cocaine with the intent to distribute. He also asserts that the trial
court exceeded its authority by sentencing him beyond the statutory maximum sentence for
possession with the intent to distribute marijuana.
I. BACKGROUND
When police executed a search warrant at a residence in the City of Petersburg on
September 25, 2010, they recovered a pair of jeans on the floor next to the bed in the room where
appellant was sleeping with a woman, G.P. 1 Inside the front left pocket of the jeans, police
recovered a knotted bag of cocaine. The bag held two individual bags, one contained .39 gram
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Besides appellant and G.P., the only other person in the house when police executed the search warrant was appellant’s mother. of solid material and the other contained 2.39 grams of powder material. The police also found a
plastic baggy corner containing marijuana in the coin pocket of the jeans and $2,211.15 in the
right pocket. When police interviewed appellant at the house, he admitted that the jeans and the
contraband inside the jeans belonged to him.
Police found a loaded silver Taurus PT 099.9 millimeter firearm in the dresser in the
room where appellant and G.P. slept. DNA testing could not eliminate appellant as a contributor
to a mixture of DNA found on that firearm. In the same bedroom, the police also found an
eight-page court document and a Walgreens prescription card, both of which displayed
appellant’s name, as well as an opened letter addressed to “Earl Bradley” from a lawyer on top of
the night stand. Police also located an empty sandwich bag box in a dresser drawer and observed
two digital scales on the dining room table in plain view.
Sergeant Shane Noblin, an expert in drug distribution, drug sales, and illegal narcotics,
testified that the cocaine found inside the jeans was inconsistent with personal use. He testified
that the amount of powder cocaine recovered was equivalent to almost 30 doses of cocaine and
had a value of $125 or $130. Noblin also stated that the total street value of all the cocaine in the
jeans was $165 and that the average user buys between $20 and $50 worth of cocaine at a time.
Appellant testified that although he was in his mother’s house the night the search
warrant was executed and that he “maintained” his mail there, he did not live at his mother’s
house. Appellant denied that the pants recovered were his. In addition, appellant denied telling
the police that he was the owner of the pants and the drugs found within them. Appellant denied
that G.P. was his girlfriend, but admitted “hooking up” with her before. However, appellant
admitted that the documents recovered from the bedroom were his.
-2- II. ANALYSIS
A. Sentence Exceeding Statutory Maximum
Appellant contends that the trial court erred by imposing a sentence that exceeded the
statutory maximum for the marijuana conviction. Appellant failed to object to the trial court’s
order sentencing him to five years incarceration, all suspended, for the marijuana conviction, but
asks this Court to consider this argument under the “ends of justice” exception to Rule 5A:18.
However, appellant’s failure to preserve this issue is of no consequence. “[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 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) (citation and internal quotation marks
omitted). 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.”).
The record reflects that the trial court granted appellant’s motion to strike the felony
marijuana charge, citing the insufficiency of the evidence to prove that the marijuana weighed
more than one-half ounce as required by Code § 18.2-248.1(a)(2). Thus, the trial court reduced
the charge to “simple possession, less than a half ounce,” a Class 1 misdemeanor with a
-3- maximum sentence of 12 months in jail pursuant to Code § 18.2-248.1(a)(1). However, the trial
court proceeded to sentence appellant to five years in prison, all suspended, for the marijuana
conviction.
The Commonwealth concedes that the trial court erred in imposing a five-year sentence
for a misdemeanor possession of marijuana 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 applies to all alike, it cannot be subordinated to the private opinions of litigants.” Id.
Id. at 531-32, 664 S.E.2d at 529 (footnote omitted).
In Rawls, 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. 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. 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.
-4- Because this Court can only speculate as to the sentence the trial court might impose on
remand for appellant’s possession of marijuana conviction, a Class 1 misdemeanor, we reverse
and remand for sentencing not to exceed 12 months imprisonment as prescribed by Code
§ 18.2-248.1(a)(1).
B. Intent to Distribute Cocaine
Appellant next contends that the evidence introduced at trial was insufficient to establish
that he intended to distribute cocaine. More specifically, appellant argues that the powder
cocaine was not packaged for distribution, that the expert testimony that an average person buys
between $20 and $60 of cocaine for personal use where appellant possessed $130 worth of
powder cocaine failed to establish his intent to distribute, and that no evidence linked appellant
to the scales found in the dining room.
Rule 5A:18 provides, in relevant part, “[n]o ruling of the trial court . . . will be considered
as a basis for reversal unless an objection was stated with reasonable certainty at the time of the
ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of
justice.” “Rule 5A:18 requires a litigant to make timely and specific objections, so that the trial
court has ‘an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary
appeals and reversals.’” Brown v. Commonwealth, 279 Va. 210, 217, 688 S.E.2d 185, 189
(2010) (quoting West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 (2004)).
“Under settled principles, the ‘same argument must have been raised, with specificity, at trial
before it can be considered on appeal.’” Johnson v. Commonwealth, 58 Va. App. 625, 637, 712
S.E.2d 751, 757 (2011) (quoting Correll v. Commonwealth, 42 Va. App. 311, 324, 591 S.E.2d
712, 719 (2004)). “‘Making one specific argument on an issue does not preserve a separate legal
point on the same issue for review.’” Id. (quoting Edwards v. Commonwealth, 41 Va. App. 752,
-5- 760, 589 S.E.2d 444, 448 (2003) (en banc), aff’d by unpublished order, No. 040019 (Va. Oct. 15,
2004)).
While appellant argued below that the evidence was insufficient as to possession of
cocaine, he did not specifically argue that the evidence failed to prove intent to distribute.
Therefore, appellant waived this argument, and Rule 5A:18 bars this Court’s consideration of the
issue on appeal. Furthermore, appellant does not argue that we should invoke either the good
cause or ends of justice exceptions to Rule 5A:18, and we will not consider Rule 5A:18
exceptions sua sponte. Edwards, 41 Va. App. at 761, 589 S.E.2d at 448.
Affirmed in part; reversed and remanded in part.
-6-