COURT OF APPEALS OF VIRGINIA

Present: Judge Clem ents, Senior Judges Willis and Annunziata Argued at Alexandria, Virginia

GREGORY GRANDISON MEMORANDUM OPINION * BY v. Record No. 1472-04-4 JUDGE ROSEMARIE ANNUNZIATA OCTOBER 25, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WINCHESTER John E. Wetsel, Jr., Judge Crystal A. Meleen (Lopez, Mele en & Sprano, PLC, on brief), for appellant. Stephen R. McCullough, Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.

Gregory Grandison appeals his conviction of distributing cocaine, for which he was sentenced to twenty year s of imprisonment and a $1,000 fine. On appeal, Grandison contends the presiding judge at the sentencing hearing abused his discretion by re fusing to continue the hearing to permit Grandison to be senten ced by the judge who pres ided at trial. Grandison also argues the trial judge erred in allowi ng court staff to communicat e with the jury and in instructing the jury on

distribution of cocaine as a second offense. Fo r the reasons that follow , we affirm appellant’s

conviction.

BACKGROUND On March 12, 2004, Judge Arthur V. Sinclair presided at Gr andison’s jury trial upon an indictment charging him with distributing cocaine. The Commonw ealth’s evidence included the presentation of a videotape in which Grandison was depicted taki ng an item from another person

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - and handing it to the driver of a van. The activity occurred in an area known as a “high drug” area in Winchester. The jury found Gran dison guilty of the charged offense. At the sentencing phase of tr ial, the Commonwealth introduced certified copies of orders indicating Grandison previously ha d been convicted of unlawfully sh ooting into an occupied vehicle and four offenses of distributing cocaine. 1 Without objection from Gr andison, Judge Sinclair instructed the jury as follows:

You have found the defendant guilty of the distribution of cocaine. If you find the defendant has a previous conviction for the distribution of cocaine you shall fix his punishment at imprisonment for life or for any pe riod not less than five years and a fine of a specific amount but not more than $500,000. If you find the defendant has no prior convictions for distribution of cocaine, you sh all fix his punishment at imprisonment for not less than five years nor more than forty years and a fine of a specific amount but not more than $500,000. After the jury began its sentencing deliberati ons, the bailiff informed the trial judge that the jury did not understa nd how much time Grandison previously had spent in the penitentiary. The following exchange occurred: [PROSECUTOR]: I do not think we go by to try and figure that out, Judge frankly. I think the doc uments speaks for itself. You have got twenty years, ten suspended, ten to serve to run concurrently on all four charge s. How much time he actually spent, I do not think they get to . . . I do not thi nk we could figure out the time. THE BAILIFF: Judge, I do not think they know what concurrent means.

1 The conviction orders reflected that all the cocaine distribu tion convictions occurred in the Circuit Court of the City of Winchester on the same date . Each of the conviction orders stated that Grandison’s sentence was twenty ye ars of imprisonment, with ten years suspended, and a fine of $5,000. Three of the sentences were ordered to run “concurrently with any other sentence imposed against the defendant on th is date in the City of Winchester.”- 3 - [PROSECUTOR]: Well we could ex plain . . . I think the Court could explain that, in effect to that. I do not think we go beyond that as to how many days he actually served. THE COURT: Let me go with the bailiff to the door here and just ask them if they understand “concurrent.” And, if they do not, I will tell them that it means “together.” The defense attorney agreed with the prosecutor, stating “the documents speak for itself. Any amount of time he actually serv ed should be irrelevant.” The jury was brought into the courtroom. The jury foreperson asked for information regarding the amount of time Grandi son had spent in prison for his pr ior offenses. Judge Sinclair responded: [T]hat point of how much time has he served is really irrelevant. The important part about it is the time that he was given originally by the Court, which is in these papers. But, I did not read them closely enough to know whether any of them were to be served concurrently with another. But, if they were concurrent, that would mean two sentences or more that would be served at the same time. The jury foreperson then raised a question about the four drug convi ctions having the same date. The prosecutor stated that convi ction orders contained no info rmation regarding whether the offenses all occurred on the same day. The jury then resumed its deliberations. As the jury was about to enter the courtroom to deliver its sentencing verdict, the prosecutor stated that “there is a question for the jury of whether or not they should . . . they have to . . . a fine is required.” J udge Sinclair stated the jury was re quired to levy a fine as a part of the sentence. The following conversation then transpired: [PROSECUTOR]: The Court inst ructed that some fine was required and that was relayed by the Clerk; is that correct? THE CLERK: That is correct. [PROSECUTOR]: Thank you. THE CLERK: A fine within the limits stated in the verdict form.- 4 - The jury entered the courtroom and rendere d its sentencing recommendation of twenty years of imprisonment and a fine of $1,000. The defense requested that Grandison’s sentencing hearing be scheduled for a date when Judge Sincla ir would be present in court. The sentencing hearing was set for April 26, 2004. Grandison’s sentencing hearing commenced on the morning of April 27, 2004, before Judge John Wetsel. At the outset of the hear ing, defense counsel indicated he had “Mr. Grandison from yesterday.” 2 Defense counsel moved to conti nue the sentencing to a day when Judge Sinclair would be presen t. Judge Wetsel denied the motion. After further discussion, defense counsel stated, “Yeah, we will go ahead and do it today, Your Honor.” Judge Wetsel obtained a copy of the presentence report, which contained a summary of the evidence presented at trial. Furthermore, Judge We tsel indicated he had viewed the videotape of the incident. Judge

Wetsel sentenced Grandison in accordance with the jury’s recommendation, but suspended thirteen years of the senten ce as well as the fine.

I. Grandison contends that Judge Wetsel er red in refusing to continue the sentencing hearing to permit him to be sentenced by Judge Sinc lair, who presided at trial. Grandison argues the denial of a continuance violated Virginia stat utes as well as his constitutional right to due process. The Commonwealth cont ends Grandison’s objection at tr ial was insufficiently specific to encompass his claims that the procedure violated Virginia statutes or his right to due process. In addition, the Commonwealth asserts, Grandis on agreed to be sentenced by Judge Wetsel on the date of the sentencing hearing.

2 The record does not reflect the reason why Grandison’s sentencing did not occur on April 26.- 5 - We agree with the Commonwealth. “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, except for good cause shown or to enab le the Court of Appeals to attain the ends of justice.” Rule 5A:18. “The Court of Appeal s will not consider an argument on appeal which was not presented to the tria l court.” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). Rule 5A:18 applies to ba r even constitutional claims that were not

raised at trial. See Deal v. Commonwealth , 15 Va. App. 157, 161, 421 S.E.2d 897, 900 (1992). At sentencing, appellant advanced no specifi c reason why he was entitled to be sentenced by Judge Sinclair. The extent of Grandis on’s objection was that he was moving for a continuance to a day when Judge Sinclair would be present. Accordingly, Rule 5A:18 bars our consideration of the arguments Grandison advances on appeal. Moreover, after Judge Wetsel denied his motion for a continuance, Grandison acquiesced in the decision and agreed to proceed with sentencing that day. “No litigant, even a defendant in a criminal case, will be permitted to approbate and reprobate – to invite error . . . and then to take advantage of the situ ation created by his own wrong.” Fisher v.

Commonwealth , 236 Va. 403, 417, 374 S.E.2d 46, 54 (1988).

The record reflects no reason to invoke the good cause or ends of justice exceptions to

Rule 5A:18. “[T]he ends of justice excepti on is narrow and is to be used sparingly . . . .” “[I]t is a rare case in which, rather than invoke Rule [5A:18], we rely upon the exception and consider an assignment of error not preserved at trial . . . .” In order to avail oneself of the exception, a defendant must affirmatively show that a miscarriage of justice has o ccurred, not that a miscarriage might have occurred. The trial error must be “clear, substantial and material.” Redman v. Commonwealth , 25 Va. App. 215, 220-21, 487 S.E.2d 269, 272 (1997) (citations omitted).- 6 - Grandison has not demonstrated that a miscarriage of justice occurred. See People v.

Banuelos-Landa , 109 P.3d 1039, 1040 (Colo. Ct. App. 2004) (s tating “there is no constitutional right to be sentenced by the same judge who pres ided at trial”). The record indicates Judge Wetsel, at the time of sentencing, was familiar wi th the underlying circumstances of Grandison’s conviction. Judge Wetsel possessed a copy of th e presentence report, an d heard the prosecutor’s recitation of the facts. Judge Wetsel also indicated he had viewed the videotape of the transaction. Accordingly, we decline to invoke either exception to Rule 5A:18.

II. Grandison contends the communications by the bailiff and the clerk with the jury at the sentencing phase at trial violated his constitutional rights to du e process and to counsel. He argues that Judge Sinclair erred in advising th e jury that the amount of time Grandison had served in the penitentiary was irrelevant. Gra ndison also argues that Judge Sinclair erred in instructing the jury, at the senten cing phase, regarding the applicable range of sentence if the jury found Grandison previously had been convicted of distributing cocaine. However, at no point during the proceedings below did Grandison ra ise any of these arguments or contend the sentencing phase of his jury trial was flawed. Grandison concedes he did not satisfy the re quirements to preserve these arguments for appeal pursuant to Rule 5A:18, but asks this Court to apply the “e nds of justice” exception to the contemporaneous objection rule. However, “[e]rror alone, even a violation of constitutional principles, is not sufficient to warrant applica tion of the ends of ju stice exception to Rule

5A:18.” West v. Commonwealth , 43 Va. App. 327, 339, 597 S.E.2d 274, 279 (2004). Grandison does not demonstrate, nor does the record reflect, that the exchanges between the bailiff, the clerk, Judge Sinclair, and the jury resulted in a miscarri age of justice. Judge Sinclair appropriately responded to the jury’s inquiries regarding Gra ndison’s prior terms in- 7 - prison and advised that the jury wa s required to include a fine as a part of his sentence. Defense counsel expressly agreed w ith the judge’s responses to the jury’s questions. Moreover, the jury’s sentencing verdict was wi thin the range of puni shment for either a first or subsequent conviction of cocaine dist ribution. Thus, we cannot determine whether the jury was influenced by the presence in the se ntencing instruction of language regarding a subsequent conviction of cocaine distribution. B ecause Grandison has failed to demonstrate that a miscarriage of justice has o ccurred, we find no reason to invoke the ends of justice exception with regard to these issues.

CONCLUSION For the foregoing reasons, Grandison’s conviction is affirmed.

Affirmed.