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Webb v. Commonwealth

Court of Appeals of Virginia

February 24, 2015

ELLIOTT THOMAS WEBB, JR.
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PULASKI COUNTY. Marcus H. Long, Jr., Judge.

Ryan D. Hamrick (Daniel D. Hamrick, P.C., on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Huff,[*] Judge Petty and Senior Judge Annunziata.

OPINION

Page 697

ROSEMARIE ANNUNZIATA, JUDGE

[64 Va.App. 374] Elliott Thomas Webb, Jr. (" appellant" ) was convicted in a jury trial of cocaine distribution, after having been convicted two or more times of violating Code § 18.2-248. Following his conviction, the jury recommended a sentence of thirty years and a $500,000 fine, and the trial court imposed the recommended sentence. On appeal, he asks that we reverse and remand the trial court's judgment with regard to sentencing because the

Page 698

jury's sentencing verdict was not unanimous. Because the record clearly indicates the sentencing verdict was not unanimous, we reverse the trial court's judgment with respect to sentencing only and remand for further proceedings under Code § 19.2-295.1.

The pertinent facts are not in dispute. Following the guilt phase, the jury returned a verdict of guilty, and defense counsel asked to have the jury polled. The clerk asked the jurors to " answer yes if this is your verdict." The clerk called each juror by name, and each juror responded affirmatively. The jury heard evidence and argument regarding sentencing and retired to deliberate. After announcing its decision on sentencing, defense counsel asked to have the jury polled again. Upon calling out the jurors' names, the second juror answered, " No." [1] The trial court did not react to the polling results, and neither attorney objected or made a motion in response to the jury's lack of unanimity. On July 25, 2013, the trial court entered an order reflecting the jury's guilty verdict and its sentencing decision. Following the preparation of a pre-sentence report, the trial court adopted the jury's recommendation and sentenced appellant accordingly on October 24, 2013.[2]

Appellant did not attack the sentencing verdict until he filed a petition for appeal with this Court. He now argues he was [64 Va.App. 375] entitled to a unanimous jury verdict at sentencing. He acknowledges he did not object to the sentencing verdict at trial, but asks that we consider his argument on appeal pursuant to the ends of justice exception in Rule 5A:18.

" A trial court's assessment of punishment is reviewed under an abuse of discretion standard." Commonwealth v. Greer, 63 Va.App. 561, 567, 760 S.E.2d 132, 135 (2014). " A trial court 'by definition abuses its discretion when it makes an error of law . . . .'" Id. at 568, 760 S.E.2d at 135 (quoting Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (citation omitted). " To the extent that determinations regarding sentencing involve the interpretation of a statute or the common law, such an interpretation is a question of law reviewed de novo on appeal." Id.

We recognize a defendant has neither a federal nor state constitutional right to have a jury decide his sentence. See id. at 572, 760 S.E.2d at 137. See also Fogg v. Commonwealth, 215 proceeding has no constitutional right to a unanimous verdict under the Sixth Amendment. See Manns v. Commonwealth, 213 Va. 322, 324, 191 S.E.2d 810, 811 (1972). See also Prieto v. Commonwealth, 283 Va. 149, 180, 721 S.E.2d 484, 503 (2012) (" The Sixth Amendment 'does not require a unanimous jury verdict in state criminal trials.'" (quoting McDonald v. City of Chicago, 561 U.S. 742, 766 n.14, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010))). Likewise, the Fourteenth Amendment does not extend the right to a unanimous verdict to a defendant in state criminal trial. See McDonald, 561 U.S. at 766 n.14.

Under Virginia law, the right to a unanimous verdict is addressed by the Constitution of Virginia, at the guilt stage, and by statute, at the sentencing stage. Pursuant to Article I, Section 8, of the Constitution of Virginia, a defendant has a right to a unanimous verdict at the guilt stage. Article I, Section 8 provides that " in criminal prosecutions a man . . . shall enjoy the right to a speedy and public trial, by [64 Va.App. 376] an impartial ...


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