A trial judge could not ignore the mandatory minimum five-year sentence for a weapons possession conviction under Va. Code § 18.2-308.2 and impose the two-year sentence ordered by a jury that was properly advised of the statutorily required sentence; the Court of Appeals says the lower sentence was void ab initio and the trial court erred in refusing to impanel a new jury for sentencing after the original jury refused to perform its duties as instructed.
Code § 18.2-308.2(A) provides that one who possesses a firearm after having been convicted of a felony shall be guilty of a Class 6 felony. The statute provides that a person previously convicted of a violent felony shall be sentenced to a mandatory minimum prison term of five years.
The parties agree the trial court properly instructed the jury that the appropriate sentence is five years in prison. Despite receiving proper instructions, however, the jury unanimously fixed defendant’s punishment at two years in contravention of the law as set out in those instructions. The trial court sentenced defendant in accord with the jury’s sentencing verdict.
We hold the jury’s sentence of two years was erroneous and the trial court’s imposition of that sentence was void ab initio. The judge was obligated to reject the jury’s verdict and to impanel a new jury to determine punishment within the prescribed limits established by the legislature for the crime for which the jury had found the defendant guilty.
We are not aware of, and the parties have not cited, any Virginia appellate decision approving jury nullification in the sentencing phase of a trial. Indeed, our statutes and case law dictate a contrary conclusion. Once guilt has been determined, both judge and jury are constrained by the sentencing limits set by the legislature. Nothing in the U.S. or Virginia Constitution gives a defendant the right to be sentenced by a jury or solely by a jury. The choice of sentencing procedures is a matter for legislative determination.
Virginia law and the principles surrounding mandatory minimum sentences compel the conclusion that the jury here could not lawfully engage in nullification in the sentencing phase and was constrained to render a sentencing verdict that complied with the mandatory sentence of five years set by the legislature. The sentencing verdict of two years rendered by the jury was improper.
The trial court recognized the problem associated with the fact that the jury’s sentencing verdict was lower than the punishment of five years mandated by statute. However, because the verdict was unanimous, the court determined that it lacked authority to impanel a new jury to consider defendant’s sentence. On de novo review of this legal ruling, we reach a contrary conclusion. We hold that the Supreme Court of Virginia’s decision in J.K. Rawls, 278 Va. 213, required the trial court to reject the jury’s sentence of two years and to empanel a new jury for sentencing. In this case, under these circumstances, the proper procedure for correcting the error is to remand the case for a new sentencing hearing.
We reverse the trial court ruling in part, vacate defendant’s sentence and remand the case to the trial court for a new sentencing proceeding before a different jury.
Commonwealth v. Greer (Decker) No. 1898-13-1, July 22, 2014; Newport News Cir.Ct. (Fisher) Katherine Q. Adelfio, AAG, for appellant; Jeffrey C. Rountree for appellee. VLW 014-7-232, 16 pp.