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KEELING v. COMMONWEALTH




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KEELING

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Clements and Felton

Argued at Chesapeake, Virginia

Record No. 1876-02-1

ULYSSES LEE KEELING

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE LARRY G. ELDER

DECEMBER 9, 2003

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

Von L. Piersall, Jr., Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender

Commission, on briefs), for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

Ulysses Lee Keeling (appellant) appeals from the sentence
imposed upon the revocation

of a suspension of sentence. On appeal, he contends the trial
court incorrectly calculated the

amount of time remaining on his original sentence because it
failed to credit him for time spent

in the Detention Center Incarceration Program (the program)
pursuant to Code ? 19.2-316.2. We

hold appellant failed to present this claim to the trial court
and that Rule 5A:18 prevents us from

addressing it on appeal. Thus, we affirm without reaching the
merits and remand to the trial

court for the limited purpose of correcting a clerical error in
its order of September 27, 2000, in

keeping with the Commonwealth’s concession outlined below in
Part I.

I. CREDIT FOR SIX MONTHS OF TRADITIONAL INCARCERATION

The September 27, 2000 order revoking appellant’s probation
contained an error in that it

sentenced appellant to serve two years. Appellant’s original
sentence of March 12, 1999 was

two years with one year six months suspended, and appellant
served six months of that two-year

sentence. Thus, in its order of September 27, 2000, the court
had the authority to sentence

appellant to only one year six months rather than two years.

The Commonwealth concedes error in the trial court’s September
27, 2000 order insofar

as that order recites a remaining sentence of two years rather
than one year six months. It avers

that no prejudice resulted to appellant because the June 27,
2002 order revoking appellant’s

probation imposed a sentence of one year six months.
Nevertheless, the Commonwealth does

not oppose the correction of the September 27, 2000 order to
reflect that the sentence remaining

at that time was one year six months rather than two years.
Thus, we remand to the trial court for

correction of this error in the September 27, 2000 order in
keeping with the Commonwealth’s

concession.

II. CREDIT FOR TIME IN DETENTION CENTER INCARCERATION PROGRAM

Appellant contends the trial court erred in failing to credit
him for the time he spent in the

program. The Commonwealth avers that he failed to preserve this
issue for appeal because he

did not raise it in the trial court prior to entry of the June
27, 2002 order. Appellant concedes he

did not raise the issue in the trial court. However, he points
to the fact that a sentence exceeding

the statutory maximum may be challenged for the first time on
appeal. He avers that where the

sentence imposed in a revocation order exceeds the sentence
imposed in the original sentencing

order, the sentence should also be subject to challenge for the
first time on appeal to attain the

ends of justice.

We hold that appellant’s failure to raise the issue in the
trial court prevents us from

considering it on appeal.[2]
Rule 5A:18 provides that "no ruling of the trial court . . . will be

considered as a basis for reversal unless the objection was
stated together with the grounds

therefor at the time of the ruling . . . ." The purpose of
the rule is to allow the trial court to

consider the issue and take corrective action in order to avoid
unnecessary appeals, reversals and

mistrials. See, e.g., Robinson v. Commonwealth, 13 Va. App. 574,
576, 413 S.E.2d 885, 886

(1992).

As appellant concedes, he did not raise this issue in the trial
court in a timely fashion.

Further, because appellant’s total sentence for possession of
cocaine, including the time he spent

in the program, did not exceed the statutory maximum of ten
years for that offense, see Code

?? 18.2-10, 18.2-247, 18.2-250, 54.1-3448, the ends of justice
exception to Rule 5A:18 does not

apply. See Nuckoles v. Commonwealth, 12 Va. App. 1083, 1086-87,
407 S.E.2d 355, 356-57

(1991) (in case considering court’s authority to impose jail
time as condition of suspension of

sentence, upholding revocation of suspension where sentence
imposed on revocation did not

exceed statutory maximum for offense). Accordingly, we hold the
assignment of error is barred.

III.

For these reasons, we affirm the trial court’s ruling without
considering appellant’s claim

that the trial court erroneously refused to credit him for time
spent in the Detention Center

Incarceration Program. We remand to the trial court for the
limited purpose of correcting the

error in its order of September 27, 2000, in keeping with the
Commonwealth’s concession as

outlined infra in Part I.

Affirmed and remanded with instructions.

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]After we
granted the petition for appeal, we allowed appellant to seek correction of a

clerical error in the trial court. We do not consider the
contents of the order of correction in

determining whether appellant preserved for appeal the issue of
whether he was entitled to credit

for time spent in the program.

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