Opinion
Record No. 0871-92-3
November 9, 1993
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE FRANK I. RICHARDSON, JR., JUDGE.
(Gilbert K. Davis, on brief), for appellant. Appellant submitting on brief.
(Stephen D. Rosenthal, Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Koontz, Elder and Fitzpatrick.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
This appeal arises out of Wilbert Herman Brown's (Brown) conviction on a plea of guilty to five counts of selling cocaine, one count of acting as an accessory before the fact to the sale of cocaine and one count of possessing a firearm as a convicted felon. Following preparation of a pre-sentence report, the trial judge sentenced Brown to serve five years and a $300 fine on each of the drug counts and two years on the firearms count. The trial judge suspended seventeen years of the thirty-two year sentence on the condition that Brown submit to three years of supervised probation upon his release. On appeal, Brown asserts that the trial judge improperly looked to the sentencing guidelines in force at the time of trial, instead of those in force at the time of the offense, in determining the sentence. Because we find this Court's recent holding inBelcher v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1993), controls this precise issue, we affirm the sentence imposed by the trial judge.
The Court released Belcher for publication September 14, 1993. In Belcher, the defendant entered a conditional plea on severe bunts of selling cocaine. As in this case, the trial court assigned punishment at or near the minimum allowed on each charge and used the sentencing guidelines in force at the time of conviction to fashion the appropriate balance of prison time and time suspended. We agreed with Belcher, and with Brown in this case, "that the trial judge's application of the new guidelines subjected him to an increased range of penalties."Belcher, ___ Va. App. at ___, ___ S.E.2d at ___. Nonetheless, the actual punishment imposed by the trial judge in both cases did not exceed the statutory limits, the only actual restriction in determining punishment.
As we said in Belcher:
The guidelines are not binding on the trial judge; rather, the guidelines are merely a "tool" to assist the judge in fixing punishment. Consequently application of the guidelines, either old or new, was voluntary. Moreover, our review . . . is limited to ascertaining whether the sentence falls within the range set by the legislature.
Belcher at ___, ___ S.E.2d at ___ (citations omitted).
Each of the drug-related convictions in this case carried punishments ranging from five to forty years. The firearms conviction carried a maximum punishment of five years. Because the sentences imposed by the trial judge fall within the statutory range set by the legislature, the trial judge did not err by considering the new guidelines, among other factors, when determining the sentences. Accordingly, we affirm Brown's convictions.
Affirmed.