Opinion
Record No. 1146-91-1
January 19, 1993
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON JOHN D. GRAY, JUDGE
Lawrence A. Martin for appellant.
Oliver L. Norrell, III, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Emmanuel Phil West (appellant) appeals from his bench trial conviction by the Circuit Court of the City of Hampton (trial court) for robbery from the person in violation of Code § 18.2-58. The sole issue for our consideration is whether the trial court abused its discretion by not sentencing appellant to the identical sentence given to his co-defendant.
Upon familiar principles, we view the evidence "in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271 (1975). Stated in that light, the record discloses that at the June 6, 1991 sentencing hearing, a pre-sentence investigation report prepared by a probation and parole officer was admitted into evidence. In that report, the officer recited that appellant's co-defendant received a sentence of eleven years with two years suspended. Appellant's attorney stated his disbelief that this recitation of the sentence was correct; however, the court accepted the report as stated above. Appellant was then sentenced to eleven years, with two years suspended, the trial judge stating, "I'm going to sentence you to the same situation" (referring to appellant's co-defendant's sentence).
Pursuant to a motion to reconsider the sentence, a hearing was held on June 18, 1991. At that time, the court was informed that appellant's co-defendant was actually sentenced to ten years with six years suspended. The court vacated appellant's previous sentence and re-sentenced him to eleven years with three years suspended.
Appellant contends that the trial court's refusal to amend the sentence to conform with the co-defendant's sentence was based on the fact that the appellant had maintained his innocence and the co-defendant had pled guilty. Appellant asserts that the effect of the court's refusal to amend the sentence to conform with the co-defendant's sentence amounts to giving the appellant an enhanced punishment for asserting his right to testify on his own behalf. We disagree. Our review of the record shows no evidence that the trial judge punished appellant for not pleading guilty. The record does not show whether the trial court concluded that eleven years with two years suspended was an appropriate sentence, or whether the trial court was attempting to give the men identical sentences. In any event, the trial court was empowered to use its discretion in fixing punishment for the offense for which appellant was on trial.
"[W]hen a statute prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion." Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). "The legislature has set the range for punishment for those who violate the [criminal] . . . code provisions. In establishing the sentencing range it endowed the trial court with inherent and discretionary power to impose appropriate sentences . . . . If the sentence is within the range set by the legislature, an appellate court will not interfere with the [trial court's] judgment." Hudson v. Commonwealth, 10 Va. App. 158, 160-61, 390 S.E.2d 509, 510 (1990); see also Robinson v. Commonwealth, 13 Va. App. 540, 542, 413 S.E.2d 661, 662 (1992).
Here, the sentence imposed by the trial court was within the range set by the legislature. Accordingly, the trial court did not abuse it discretion.
Affirmed.