Gregory Eugene Coleman v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 1, 1995
• Docket: 1331942
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia

GREGORY EUGENE COLEMAN

v. Record No. 1331-94-2 MEMORANDUM OPINION * BY JUDGE ROSEMARIE P. ANNUNZIATA COMMONWEALTH OF VIRGINIA AUGUST 1, 1995

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge Robert J. Wagner (Wagner & Wagner, on brief), for appellant.

Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, on brief), for appellee.

Gregory Eugene Coleman (appellant) was convicted by a jury

of felony petit larceny in violation of Code §§ 18.2-96 and

19.2-297. 1 On appeal, appellant argues that the trial court

erred by (1) refusing to bifurcate his trial pursuant to Code

§ 19.2-295.1, and (2) allowing the Commonwealth to present

* Pursuant of Code § 17.116.010 this opinion is not designated for publication. 1 Former Code § 19.2-297 provided:

When a person is convicted of petit larceny, and it is alleged in the indictment on which he is convicted, and admitted, or found by the jury or judge before whom he is tried, that he has been before sentenced in the United States for any larceny or any offense deemed to be larceny by the law of the sentencing jurisdiction, he shall be confined in jail not less than thirty days nor more than twelve months; and for a third, or any subsequent offense, he shall be guilty of a Class 6 Felony.

Code § 19.2-297 was repealed in 1994. Felony petit larceny now is included in Code § 18.2-104. evidence of his prior larceny convictions. We disagree and

affirm the conviction. I.

Appellant was arrested on March 16, 1994 and charged with

felony petit larceny for stealing two leather wallets from the

J.C. Penney department store, having been at least twice before

sentenced for larceny offenses.

The day of trial, July 7, 1994, the court asked the

prosecutor if he intended to proceed with a bifurcated trial. 2

The prosecutor stated that he did not. Both the trial court and

appellant's counsel believed that bifurcation was required in

felony cases. Appellant's counsel added, however, that he

"wouldn't have any objection" to a unitary trial. Counsel for

the Commonwealth and appellant advised the court that neither

would have evidence to present at a sentencing phase, beyond that

which would be presented during the guilt phase of the trial.

The court ruled that the guilt and sentencing phases of the trial

would be heard "at the same time," to which appellant's counsel

responded, "[f]air enough."

Appellant's counsel also argued pretrial that because he had

not received certified copies of appellant's prior larceny

conviction orders from the Commonwealth fourteen days before

2 Code § 19.2-295.1, effective July 1, 1994, provides in pertinent part that, "[i]n cases of trial by jury, upon a finding that the defendant is guilty of a felony, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury."

2 trial, the Commonwealth was barred by Code § 19.2-295.1 from

introducing the orders. The court ruled that proof of prior

larceny convictions was an element of the offense and the

Commonwealth was not barred from introducing orders in its case

to establish that element. At trial, the Commonwealth introduced

certified copies of conviction orders for two petit larcenies and

one grand larceny. II.

The provision in Code § 19.2-295.1 that a "separate

proceeding limited to the ascertainment of punishment shall be

heard as soon as practicable before the same jury" is not a

jurisdictional requirement. "[T]he use of 'shall' in a statute

requiring action by a public official, is directory and not

mandatory unless the statute manifests a contrary intent."

Jamborsky v. Baskins, 247 Va. 506, 511, 442 S.E.2d 636, 638

(1994). See Commonwealth v. Rafferty, 241 Va. 319, 324, 402

S.E.2d 17, 20 (1991).

Code § 19.2-295.1 contains no limiting or prohibitory

language that prevents the circuit court from allowing a unitary 3 trial under the circumstances of this case. "Absent such

limiting language, the provision at issue is directory and

procedural, rather than mandatory and jurisdictional."

Jamborsky, 247 Va. at 511, 442 S.E.2d at 639. 3 Cf. Rule 1:1 which provides that "[a]ll final judgments, orders, and decrees, irrespective of terms of court, shall remain under the control of the trial court and subject to be modified, vacated, or suspended for twenty-one days after the date of entry, and no longer." (Emphasis added.)

3 At trial, appellant voiced no objection to a unitary

trial, and in fact acquiesced in the court's proposal to hold the

two stages of the trial "at the same time." Thus, appellant is

barred on appeal from challenging the court's failure to hold a

bifurcated trial. Rule 5A:18. See Boblett v. Commonwealth, 10

Va. App. 640, 650-51, 396 S.E.2d 131, 136 (1990). Moreover, the

record does not reflect any reason to invoke the good cause or

ends of justice exceptions to Rule 5A:18. III.

The requirement in Code § 19.2-295.1 that the Commonwealth

provide copies of conviction orders fourteen days before trial is

inapplicable in this case. Appellant was indicted for felony

petit larceny under Code § 19.2-297 and it is this Code section

which governs. That section requires the Commonwealth to allege

and prove at least two prior larcenies or like offenses in order

to elevate the charged larceny from a misdemeanor to a felony.

See Brown v. Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 242

(1983). Proof of prior convictions thus constitutes an element

of the offense.

As Code § 19.2-295.1 did not govern the introduction of 4 conviction orders in this case, the trial court properly admitted the orders into evidence.

The decision of the trial court is affirmed. 4 Code § 19.2-295.1 provides that "[t]he Commonwealth shall provide to the defendant fourteen days prior to trial photocopies of certified copies of the defendant's prior criminal convictions which it intends to introduce at sentencing." (Emphasis added.)

4 Affirmed.