Jeffrey Austin Barron v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 24, 2003
• Docket: 1798023
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Bumgardner and Retired Judge Smith ∗ Argued at Salem, Virginia

JEFFREY AUSTIN BARRON MEMORANDUM OPINION ∗∗ BY v. Record No. 1798-02-3 JUDGE RUDOLPH BUMGARDNER, III JUNE 24, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MONTGOMERY COUNTY Ray W. Grubbs, Judge

George F. Marable, III, for appellant.

Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Jeffrey Austin Barron appeals his convictions for

abduction, Code § 18.2-47, and carjacking, Code § 18.2-58.1(B).

He maintains double jeopardy bars his conviction of abduction

because the detention of the victim was incidental to and an

essential part of the carjacking. He argues the victim was the

"tool" used to seize the car. He also maintains the sentence

imposed for abduction was improper. We conclude the two

convictions were appropriate and affirm them. The Commonwealth

∗ Retired Judge Charles H. Smith, Jr., took part in the consideration of this case by designation pursuant to Code § 17.1-400. ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. concedes the trial court sentenced the defendant to a term

greater than the maximum permitted.

The victim was a taxi driver dispatched to the Montgomery

Regional Hospital where she picked up the defendant. As they

left the hospital, the defendant put a gun to her head and

ordered her to drive where he told her to go. They started

toward Christiansburg but eventually drove into Craig County

before returning to Montgomery County. At some point, the

defendant took over as driver and held the victim as a passenger

against her will. The defendant released the victim on the side

of the road in Montgomery County and drove off in the taxi.

The carjacking statute specifically provides, "The

provisions of this section shall not preclude the applicability

of any other provision of the criminal law of the Commonwealth

which may apply to any course of conduct which violates this

section." Code § 18.2-58.1(C). By enacting this language, "the

General Assembly made it clear that conviction for the offense

of carjacking does not prohibit the Commonwealth from pursuing

any other crime an offender commits while the carjacking is in

progress." Brown v. Commonwealth, 37 Va. App. 507, 518, 559

S.E.2d 415, 420-21 (2002). Where the legislative intent is

clear, and multiple sentences were intended, there is no viable

double jeopardy claim. Turner v. Commonwealth, 221 Va. 513,

530, 273 S.E.2d 36, 47 (1980) (Code § 18.2-53.1).

- 2 - [O]ne accused of abduction by detention and another crime involving restraint of the victim, both growing out of a continuing course of conduct, is subject upon conviction to separate penalties for separate offenses only when the detention committed in the act of abduction is separate and apart from, and not merely incidental to, the restraint employed in the commission of the other crime.

Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14

(1985) (abduction and rape). See also Cardwell v. Commonwealth,

248 Va. 501, 511, 450 S.E.2d 146, 152 (1994) (abduction and

robbery); Abraham v. Commonwealth, 32 Va. App. 22, 27-28, 526

S.E.2d 277, 279 (2000) (abduction, robbery, and carjacking).

The trial court specifically found the detention "was more

than merely incidental to the carjacking." The evidence

supports that finding. The defendant accomplished the

carjacking when he took control of the car at gunpoint and

ordered the victim to drive as he directed. He detained and

transported the victim for several hours. After they returned

to Montgomery County, the defendant was the driver and the

victim his captive passenger. At that point alone, the

detention was completely separate from the restraint employed to

seize control of the car. The acts constituting abduction and

carjacking were separate and distinct.

The Commonwealth conceded the defendant was sentenced to

fifteen years for abduction when the maximum punishment was ten

years. Code §§ 18.2-10 and -47. "Where the sentence imposed is

- 3 - in excess of that prescribed by law, that part of the sentence

which is excessive is invalid." Deagle v. Commonwealth, 214 Va.

304, 305, 199 S.E.2d 509, 510 (1973) (trial court properly

imposed sentence and not fine where jury improperly punished

defendant with both). We hold that five years of the

fifteen-year sentence is void and order the sentence reduced to

ten years. Brown v. Commonwealth, 26 Va. App. 758, 763, 497

S.E.2d 147, 150 (1998) (appellate court may reduce fine to what

legislature authorized).

Accordingly, we affirm the convictions of abduction and

carjacking but reduce the sentence for abduction to ten years.

Affirmed as modified.

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