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Sentencing challenges not preserved for appeal

Where appellant argues that his 15-year active sentence resulted from “(1) improper and prejudicial testimony by the victim’s father and (2) the Commonwealth’s improper closing argument that called for him to be punished for uncharged conduct, he did not preserve these issues for appeal by timely objecting to the sentence imposed.


Appellant fatally shot Harris in a drug-related incident. During the sentencing phase of appellant’s voluntary manslaughter trial, Harris’ father, Jay Harris, described without objection “the anguish and trauma of losing his son.

“Jay implored the jury to impose ‘every day possible … because you don’t want this man with this mentality out in your community.’

“Jay characterized appellant as someone who ‘destroys communities’ through gun violence and ‘the poison that he serves.’ …

During sentencing argument before the jury, the Commonwealth highlighted the trauma appellant’s actions had caused for ‘so many people,’ including Jay and Pennix [who pleaded with appellant not to shot Harris].

“Noting appellant’s ‘choice to sell drugs,’ even after serving a penitentiary sentence for prior drug distribution, the Commonwealth argued that he was not ‘naïve about life on the streets.’

“The Commonwealth concluded that the consequence of appellant’s choices – Harris’s death—was irreversible and asked the jury to sentence appellant to ten years’ incarceration for the voluntary manslaughter conviction and five years’ incarceration for the possession of a firearm conviction.

“Appellant did not object to the Commonwealth’s sentencing argument. … The jury fixed appellant’s sentence at ten years’ incarceration for the voluntary manslaughter conviction and five years’ incarceration for the possession of a firearm conviction. …

“At the sentencing hearing, appellant asked the trial court to suspend a portion of the jury’s recommended sentence and impose an active term within the discretionary sentencing guidelines range.” The court declined to do so and imposed the jury’s 15-year active sentence. Later, appellant moved the court to set aside the jury’s “punishment verdict.”

The trial court denied the motion.

Issues waived

“We do not reach the merits of appellant’s arguments because Rule 5A:18 bars our consideration of them. See Rule 5A:18 (providing, in pertinent part, that ‘[n]o ruling of the trial court … will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable this Court to attain the ends of justice’).

“The Rule ‘requires a litigant to make timely and specific objections, so that the trial court has an opportunity to rule intelligently on the issues presented, thus avoiding unnecessary appeals and reversals.’ …

“Appellant did not object to Jay’s sentencing testimony or the Commonwealth’s allegedly improper closing sentencing argument before the jury. Nor did he request the trial court to issue a cautionary instruction or declare a mistrial.

“To the contrary, he waited until after the trial court had entered its final sentencing order to object to the testimony and argument in a motion to set aside the jury’s sentence. Appellant’s untimely motion was insufficient to satisfy Rule 5A:18.”


Hogue v. Commonwealth, Record No. 1259-21-3, Nov. 1, 2022. CAV (Malveaux). From the Circuit Court of the City of Lynchburg (Yeatts). M. Paul Valois for appellant. Liam A. Curry, Jason S. Miyares for appellee. VLW 022-7-493, 7 pp.

VLW 022-7-493

Virginia Lawyers Weekly