Opinion
Record No. 1087-93-1
Decided: December 13, 1994
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH, Thomas S. Shadrick, Judge
Reversed and remanded.
Andrew G. Wiggin for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
William Delletre Coleman (Coleman) appeals his jury trial conviction for petit larceny, a third or subsequent offense, pursuant to Code Sec. 18.2-96. Holding that the trial court erred in failing to redact the prejudicial content of sentencing orders introduced to establish that Coleman was subject to recidivist enhancement of his sentence under former Code Sec. 19.2-297, we reverse Coleman's conviction.
Assuming, without deciding, that the Commonwealth established that the individual named in the two sentencing orders was Coleman, we hold that the trial court nonetheless erred in allowing the complete text of the sentencing orders including the level of punishment assessed to go before the jury. Where "it is alleged in the indictment on which he is convicted, and admitted, or found by the jury or judge before whom he is tried, that [an accused] has been before sentenced . . . for any larceny or offense deemed to be larceny" then he shall be subject to enhancement of his sentence. Code Sec. 19.2-297 (repealed 1994) (emphasis added); see also Code Sec. 18.2-104 (revised 1994) (reciting new procedure requiring proof of prior convictions to enforce recidivist punishment). We do not read the term "sentenced" to mean that proof of the actual sentence must be shown. Rather, the fact that the accused was sentenced for a larceny crime is all that is required. In Hudson v. Commonwealth, 9 Va. App. 110, 113, 383 S.E.2d 767, 769 (1989), we noted that the introduction of the actual sentence may prejudice an accused in that the jurors may consider the length of his prior sentence in determining the sentence they will impose for the present offense. Accordingly, effective redaction of the sentencing order to remove the prejudicial material is required. See Kinard v. Commonwealth, 16 Va. App. 524, 526, 431 S.E.2d 84, 85 (1993) (reversing on other grounds, the Court nonetheless noted that redaction was ineffective in that instance as "the stricken portions remained easily readable").
We find no merit in the Commonwealth's contention that Brown v. Commonwealth, 226 Va. 56, 59, 307 S.E.2d 239, 240 (1983), implies that the actual sentence is required to be proved. To the contrary, in Brown the Court used the terms "conviction" and "sentencing" interchangeably, convincing us that the fact of sentencing, i.e. a valid conviction, and not the level of sentencing is what was permitted to be shown under former Code Sec. 19.2-297.
The Commonwealth also submitted an unpublished opinion from this Court, Person v. Commonwealth, Record No. 1989-92-2 (April 12, 1994), in support of its position. "Unpublished memorandum opinions of this Court are not to be cited or relied upon as precedent except for the purpose of establishing res judicata, estoppel or the law of the case." Grajales v. Commonwealth, 4 Va. App. 1, 2 n. 1, 353 S.E.2d 789, 790 n. 1 (1987). Accordingly, we will not consider the holding from Person in resolving the instant case.
For these reasons, we reverse Coleman's conviction and remand to the trial court for further proceedings if the Commonwealth be so advised.
Reversed and remanded.