Ricky Donnell Nelson v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 1, 2004
• Docket: 2059024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and McClanahan Argued at Alexandria, Virginia

RICKY DONNELL NELSON MEMORANDUM OPINION* BY v. Record No. 2059-02-4 JUDGE JAMES W. BENTON, JR. JUNE 1, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY James Howe Brown, Jr., Judge Designate

Mark S. Thrash for appellant.

Donald E. Jeffrey, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

The trial judge convicted Ricky Donnell Nelson of driving a motor vehicle while having the

status of an habitual offender, as a second or subsequent offense. Code § 46.2-357. Nelson

contends the trial judge abused his discretion by ordering, as a condition of probation, that Nelson

not operate a motor vehicle for twenty years. We affirm the conviction.

I.

Invoking North Carolina v. Alford, 400 U.S. 25 (1970), Nelson pled guilty to an indictment

charging that he drove a motor vehicle while having the status of an habitual offender, as a second

or subsequent offense. The trial judge found that the plea was knowing, intelligent, and voluntary,

and the judge accepted the plea. Following a proffer of the evidence concerning the offense, the

trial judge convicted Nelson and agreed, at Nelson’s request, to sentence him without the benefit of

a pre-sentence report. Before imposing a sentence, the trial judge considered several documents,

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. including Nelson’s criminal record, Nelson’s driving record, and a pending criminal complaint

charging Nelson with another offense of driving while having the status of an habitual offender.

The trial judge sentenced Nelson to five years in prison and suspended three years and six months of

the sentence for a period of twenty years. Among the conditions of the suspended sentence, the trial

judge ordered Nelson not to operate a motor vehicle during the twenty year period of suspension.

II.

Nelson contends that the trial judge abused his discretion in ordering, as a condition of

probation, that he not operate a motor vehicle for twenty years. Conceding that he failed to object at

the hearing to the sentencing order, Nelson argues that we should address his claim under the ends

of justice exception to Rule 5A:18.

As Nelson acknowledges, Rule 5A:18 bars our review on appeal of issues to which he failed

to lodge an objection at trial. This procedural bar applies to a failure to object to a sentence

rendered by the trial judge. See Brown v. Commonwealth, 8 Va. App. 126, 131, 380 S.E.2d 8, 10

(1989) (noting that the “purpose behind Rule 5A:18, . . . is to require that objections be promptly

brought to the attention of the trial court with sufficient specificity that the alleged error [in

sentencing] can be dealt with and timely addressed and corrected when necessary”). Addressing the

exception to the rule, we held in Brown as follows:

Because our function is to review the rulings of the trial court, rather than superintend the proceedings, we will notice error for which there has been no timely objection only when necessary to satisfy the ends of justice. White v. Commonwealth, 3 Va. [App.] 231, 234, 348 S.E.2d 866, 868 (1986).

Whether we apply the bar of Rule 5A:18 or invoke the ends of justice exception, we must evaluate the nature and effect of the error to determine whether a clear miscarriage of justice occurred. We must determine whether the error clearly had an effect upon the outcome of the case. The error must involve substantial rights. The guilt determination phase is not the only aspect of the trial to

-2- be reviewed. For a convicted criminal the length of sentence becomes the most important aspect of the case. Due process protections apply to sentencing.

Id. (citations omitted).

Before addressing Nelson’s contention that we should disregard the lack of an objection to

the sentencing order, we are faced with another equally obvious problem. The principle is well

established that “[w]hen a conviction is based upon a defendant’s guilty plea and the defendant

receives the sentence fixed by law, ‘there is nothing to appeal’ absent a jurisdictional defect.” Miles

v. Sheriff of Va. Beach City Jail, 266 Va. 110, 114, 581 S.E.2d 191, 193 (2003) (citation omitted).

Although not directly addressing this concern, Nelson’s “ends of justice” argument does assert that

the judge “exceeded [his] sentencing authority, rendering the sentence invalid.” As we held in

Nesbit v. Commonwealth, 15 Va. App. 391, 394, 424 S.E.2d 239, 240 (1992), a sentence that is

fixed outside the range established by the legislature is a defect that renders the sentence invalid as

to the excess. See also Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510-11

(1973) (holding that “[a] sentence in excess of one prescribed by law is not void ab initio because of

the excess, but is good insofar as the power of the court extends and is invalid only as to the

excess”). Nelson’s argument, however, merely asserts that the condition of suspension the judge

imposed is not “for a reasonable time, having due regard to the gravity of the offense.” Code

§ 19.2-303.1. This assertion does not rise to the level of alleging a “jurisdictional defect.” Miles,

266 Va. at 114, 581 S.E.2d at 193.

In any event, we note that this record fails to demonstrate a miscarriage of justice sufficient

to invoke the exception to Rule 5A:18. Nelson relies upon Simmers v. Commonwealth, 11

Va. App. 375, 398 S.E.2d 693 (1990), the only decision cited in his brief, where we addressed a

similar issue concerning a condition of suspension. Noting that the trial judge ordered Simmers

“not [to] drive a motor vehicle for a period of twenty years” as a condition of a suspended sentence

-3- on a voluntary manslaughter conviction, id. at 376, 398 S.E.2d at 693, we held that Code § 19.2-

303.1 authorizes the trial judge to “exercise . . . discretionary authority” that cannot be overturned

except upon a showing of “an abuse of discretion.” Id. at 379, 398 S.E.2d at 695. We further noted

that the trial judge in Simmers “received information regarding the defendant’s driving record,

which showed prior offenses of speeding, defective equipment, failure to maintain control, reckless

driving and running a red light.” Id.

This is not a case like Hartless v. Commonwealth, 29 Va. App. 172, 175, 510 S.E.2d 738,

739 (1999), where the trial judge imposed an indefinite period of probation and the specified period

of the suspended sentence continued for only one year following the defendant’s release from

confinement. Rather, it is more akin to Simmers. The record in this case shows that Nelson has an

extensive record of criminal and traffic offenses and that the trial judge reviewed Nelson’s record

before sentencing Nelson to prison and suspending for a period of twenty years a portion of the

sentence. In view of Nelson’s extensive history of criminal and traffic offenses, the record in this

case patently demonstrates the trial judge did not abuse his discretion in fixing, as a condition of

probation, the ban on operating a motor vehicle for twenty years.

Accordingly, we affirm the judgment.

Affirmed.

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