Neal Joseph Jackson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: April 9, 1996
• Docket: 0514951
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Senior Judge Hodges Argued at Norfolk, Virginia

NEAL JOSEPH JACKSON

v. Record No. 0514-95-1 MEMORANDUM OPINION * BY JUDGE ROSEMARIE ANNUNZIATA COMMONWEALTH OF VIRGINIA APRIL 9, 1996

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Russell I. Townsend, Judge

Hugh E. Black, III (John W. Brown, P.C., on brief), for appellant.

Richard H. Rizk, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Appellant, Neal J. Jackson, pled guilty to one count of

grand larceny, three counts of abduction, two counts of using a

firearm in the commission of a felony, two counts of robbery, and

one count of breaking and entering with intent to rob. The court

accepted Jackson's pleas and found him guilty. Sentencing

guidelines, prepared in anticipation of the sentencing hearing,

set the range of punishment at thirty-two years and three months

to life, with a mid-point of fifty-one years and three months.

The Commonwealth requested a life sentence.

The court sentenced Jackson to twenty years suspended on the

grand larceny, ten years suspended on each of the three

abductions, and five years, active mandatorily, on each of the * Pursuant to Code § 17-116.010 this opinion is not designated for publication. two firearms convictions. The court then turned to the sentences

to be imposed for the two robbery convictions and the conviction

for breaking and entering with the intent to rob. Believing that

each of the remaining sentences carried a maximum of life

imprisonment, the court stated that, based on Jackson's prior

record, a life sentence might be appropriate. However, it chose

not to impose the maximum allowable sentence, stating it would

impose active time on one of the robbery charges and suspend "a

lot" of the other time. The court sentenced Jackson to fifty

years suspended on each of the robbery convictions. Immediately

thereafter, the court realized that the breaking and entering

with intent to rob conviction carried a twenty year rather than a

life sentence. The court noted its mistake and its intention to

impose a fifty year active sentence and amended the sentence for

the second robbery conviction to fifty years active. The court

then sentenced Jackson to twenty years suspended on the breaking

and entering with intent to rob conviction. On appeal, Jackson contends (1) the court's modification of

the sentence on the second robbery conviction violated his due

process rights and twice placed him in jeopardy; and (2) the

court had no authority to modify the sentence. We disagree and

affirm Jackson's conviction.

I

"[P]rouncement of a sentence does not possess the finality

of a verdict of acquittal for double jeopardy purposes and . . .

- 2 - imposition of a particular sentence is not equivalent to a

judgment of acquittal as to all greater sentences." Nelson v.

Commonwealth, 12 Va. App. 835, 838, 407 S.E.2d 326, 328 (1991)

(quoting United States v. Lundien, 769 F.2d 981, 985 (4th Cir.

1985), cert. denied, 474 U.S. 1064 (1986)); United States v.

DiFrancesco, 449 U.S. 117, 133-36 (1980). A defendant is not

subjected to multiple punishment by a sentence enhanced within

seconds of the initial sentencing. See Nelson, 12 Va. App. at

839, 407 S.E.2d at 328-29 (sentence enhanced fifteen minutes

after initial sentencing does not violate double jeopardy

protections); Lundien, 769 F.2d at 985 (sentence enhanced after defendant had served five days of sentence does not violate

double jeopardy protections). Accordingly, Jackson's contention

that the trial court's sentence modification violated his

protections against double jeopardy is without merit.

A defendant's due process rights are denied when a sentence

is enhanced "because of the vindictiveness or other plainly

improper motive of the trial court." Nelson, 12 Va. App. at 839,

407 S.E.2d at 329 (quoting Lundien, 769 F.2d at 986-87).

Likewise, a sentence enhanced after a defendant had served so

much of it that his "expectations as to its finality ha[d]

crystallized" may also deny a defendant due process. Id. The

record here shows the court intended throughout the sentencing

hearing to impose the sentence it ultimately set. Nothing

suggests the court acted vindictively or with an otherwise

- 3 - improper motive. Moreover, when the court corrected itself

seconds after its initial mistake, Jackson clearly had served

none of his sentence. His claim that he already had formed a

"crystallized expectation" of the sentence's finality by the time

the court modified it is without merit, particularly in light of

the law that "[a] court of record speaks only through its written

orders." E.g., Robertson v. Superintendent of the Wise

Correctional Unit, 248 Va. 232, 235 n.*, 445 S.E.2d 116, 117 n.*

(1994) (citations omitted); Guba v. Commonwealth, 9 Va. App. 114, 118, 383 S.E.2d 764, 767 (1989). Accordingly, we find the

court's modification of his sentence given the facts of this case

did not deny Jackson due process.

II

Since a court of record speaks only through its written

orders, id., the trial court's oral pronouncement of sentence did

not bind it to the procedures it would have had to follow to

modify a written order. Cf. Code § 8.01-428(b) (addressing

correction of clerical errors); Rule 1:1 (allowing court to

modify final judgments within twenty-one days of entry).

Accordingly, Jackson's contention that the court did not have

authority to correct its oral mistake is without merit, and his

conviction is affirmed.

Affirmed.

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