Opinion
Record No. 1683-92-1
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, Jerome James, Judge
Affirmed.
B. Thomas Reed, for appellant.
Jerry P. Slonaker, Senior Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Gregory Orson Hetmeyer (defendant) was convicted by a jury of statutory burglary and four counts of abduction. At a subsequent sentencing hearing, the trial court considered the report of a probation officer pursuant to Code Sec. 19.2-299, other evidence relevant to sentence, and the argument of counsel and sentenced defendant in accordance with the jury's verdicts. On appeal, defendant complains that the court applied an improper standard of review to the verdicts and failed to consider "mitigating evidence." We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record, and a recitation of the facts is unnecessary to the disposition of this issue on appeal.
On review, we are guided by the principle that "[i]f a sentence imposed is within the statutory limits fixed by the legislature, the assumption is that the sentence will not be disturbed on appeal, and any contention that punishment was excessive will be 'without merit.' " Bassett v. Commonwealth, 13 Va. App. 580, 582, 414 S.E.2d 419, 420 (1992) (quoting Satterwhite v. Commonwealth, 201 Va. 478, 483, 111 S.E.2d 820, 824 (1960)). Therefore, to establish a sentencing error, the defendant must satisfy this Court that the trial judge clearly abused his or her discretion. Id. at 583, 414 S.E.2d at 421.
"After conviction, whether with or without jury, the court may suspend imposition of sentence or suspend the sentence in whole or part . . . ." Code Sec. 19.2-303 (emphasis added). "By vesting the trial court with discretionary authority to suspend or modify the sentence imposed by the jury, the legislature intended to leave the consideration of mitigating circumstances to the court." Duncan v. Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986). "Failure to consider whether a jury sentence should be mitigated because of a belief that the jury sentence is inviolable is an abuse of discretion" by the trial judge. Bruce v. Commonwealth, 9 Va. App. 298, 303, 387 S.E.2d 279, 281 (1990). However, the court need not "give controlling effect to the mitigating evidence." Correll v. Commonwealth, 232 Va. 454, 469, 352 S.E.2d 352, 360, cert. denied, 482 U.S. 931 (1987); see also Murphy v. Commonwealth, 246 Va. 136, 141-42, 431 S.E.2d 48, 51-52, cert. denied, 114 S.Ct. 336 (1993).
"Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied." Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). A defendant may not "fix upon isolated statements of the trial judge taken out of the full context in which they were made, and use them as a predicate for holding the law has been misapplied." Id. Where ambiguity exists, we consider a trial judge's comments in the light most favorable to the Commonwealth, as the prevailing party below. See Bassett, 13 Va. App. at 583, 414 S.E.2d at 421.
Here, defendant's sentences were within the prescribed statutory range. See Code Sections 18.2-10, -48 and -90. The record reflects that evidence in mitigation of sentence was presented and argued before the court. Before imposing sentence, the trial judge commented, "I've had an opportunity to very carefully consider all the facts and evidence in this case and, of course, to reflect upon the arguments of counsel." He expressly noted the seriousness of the crimes, the related brutality, and the fact that defendant "still hasn't told . . . the truth." Moreover, the standard of review appropriate to a jury sentence was correctly recited by the trial judge immediately prior to the sentencing of defendant.
Both counsel agreed that the "standard" expressed by the trial judge was correct.
Under such circumstances, we find neither a misunderstanding of the law by the trial court nor an abuse of discretion in the sentence and, accordingly, affirm the judgment.
Affirmed.