Opinion
Record No. 1385-93-3
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF HENRY COUNTY, David V. Williams, Judge
Reversed and remanded.
Ward Armstrong (Terry A. Young; Armstrong, Armstrong Young, on briefs), for appellant.
Thomas D. Bagwell, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Barrow and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this criminal appeal, we hold that the trial court used the wrong standard in deciding to impose the sentences determined by the jury. Further, we conclude that we are not barred from considering this issue as a basis for reversing the judgment because the defendant sufficiently raised the issue for the court's consideration before it ruled on the question.
Contemporaneous Objection
A party must state his or her objection, "together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice," Rule 5A:18, and must raise the same grounds on appeal as were raised before the trial court. Hogan v. Commonwealth, 5 Va. App. 36, 45, 360 S.E.2d 371, 376 (1987). It is sufficient, "if at the time the ruling or order of the court is made or sought, [a party] makes known to the court the action which he desires the court to take or his objections to the actions of the court and his grounds therefor." Code Sec. 8.01-384; Campbell v. Commonwealth, 12 Va. App. 478, 480, 405 S.E.2d 1, 2 (1991) (en banc) (issue of sufficiency adequately raised where the defendant, having failed to renew his motion to strike, argued the issue in his closing).
In his argument prior to sentencing, defense counsel brought to the court's attention the case he relies upon on appeal, Bruce v. Commonwealth, 9 Va. App. 298, 387 S.E.2d 279 (1990), and asserted:
"The punishment [ ] fixed by the jury is not final or absolute, since its finding on the proper punishment is subject to suspension by the trial judge, in whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal. The verdict of the jury is the fixing of maximum punishment which may be served. Under such practice, the convicted criminal defendant is entitled to 'two decisions' on the sentence, one by the jury and the other by the trial judge . . . . This procedure makes the jury's finding little more than an advisory opinion or first-step decision."
(Quoting id. at 302-03, 387 S.E.2d at 281.)
After the trial court ruled, defense counsel noted an exception to the ruling, but did not object specifically to the standard used by the court. However, before the trial court ruled, defense counsel had cited cases and argued his position regarding the proper standard to be used to the trial judge. Thus, the issue was adequately raised for the trial court's consideration, and we are not barred from considering the issue on appeal. See Campbell, 12 Va. App. at 480, 405 S.E.2d at 2.
The Standard
The jury and judge each play a role in sentencing. The jury's "power to determine punishment of one convicted of a criminal offense," is "more than advisory, resulting in more than just a recommendation of punishment." Frye v. Commonwealth, 231 Va. 370, 397, 345 S.E.2d 267, 286 (1986). Cf. Duncan v. Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986) (describing the jury's fixing of sentence as "little more than an advisory opinion or first-step decision"). The trial judge bears the "responsibility of considering mitigating circumstances and pronouncing sentence after the maximum punishment is fixed by the jury." Bruce, 9 Va. App. at 303, 387 S.E.2d at 281.
In this case, the trial judge stated,
I think I have to decide-is this verdict so excessive that it would shock the conscience of the Court. And if it is, I wouldn't have any hesitation to tamper with it. But I think that is the standard that I use, and that is the standard I am using here. The jury had ample evidence to reach the conclusion they reached, and the verdict that they did reach-I don't think reaches the level that would shock the conscience of the Court.
(Emphasis added.)
This "standard" was erroneous and prevented the trial judge from considering the mitigating evidence. For this reason, we must reverse the judgments imposing sentence on the defendant and remand the proceeding to permit the imposition of sentence employing the correct standard.
Reversed and remanded.