Neria v. Commonwealth – August 25, 2009

Neria contends the trial court erred by imposing a punishment not permitted by statute, and by granting a facially incorrect jury instruction.

In a jury trial, Neria was found guilty of driving under the influence, fourth or subsequent offense in a ten-year period, in violation of Code §§ 18.2-266 and 18.2-270. The jury fixed Neria’s punishment at a fine of $2,500 and a sentence of four years and six months incarceration under Code § 18.2-270(C), a Class 6 felony. On appeal, Neria argued that “the imposition of th[e] fine exceed[ed] the lawful range of punishment set by Code § 18.2-10(f) for Class 6 felonies.” After attempting to harmonize Code §§ 18.2-270(C) AND 18.2-10(f), the CAV concluded that since “the provisions of Code § 18.2-270(C) address the specific subject of enhanced punishments for criminal defendants who commit multiple violations of Code § 18.2-266 in a given time frame,” and “Code § 18.2-10(f) addresses the subject of punishments available for Class 6 felonies in general,” then “to the extent that the two statutes conflict, Code § 18.2-270 prevails as the more specific statute.”

Neria also contends that “Instruction No. 12 was facially incorrect. The instruction provided that, ‘you shall fix his punishment at, one, a specific term of imprisonment, but not less than one year nor more than five years, and two, a fine of not more than $2,500.’” The CAV concluded that “while Instruction No. 12 erroneously left out the mandatory minimum fine of $1,000,….because the punishment fits within the statutory requirements of Code § 18.2-270(C) and d[id] not prejudice [Neria], [he] [was] not entitled to a new sentencing proceeding.”

From
The Court of Appeals of Virginia (unpublished opinion)

Counsel
Patrick M. Blanch (Office of the Public Defender) for appellant.

Jennifer C. Williamson (Office of the Attorney General) for appellee.

Assignments of Error
1. The Court of Appeals erred by holding that Virginia Code §§ 18.2-10 and 18.2-270(C) permitted a maximum fine of $2500 where the defendant was sentenced to imprisonment in excess of 12 months.

2. The Court of Appeals erred when it held that Appellant was not entitled to a new sentencing proceeding pursuant to Virginia Code § 19.2-295.1 because the trial court imposed a permissible fine under Virginia Code §§ 18.2-10 and 18.2-270(C).

3. The Court of Appeals erred when it required Appellant to demonstrate prejudice in order to obtain a new sentencing hearing pursuant to Virginia Code § 19.2-295.1, notwithstanding its finding that the contested sentencing instruction was facially erroneous.

Date Granted
8-24-2009