COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Senior Judge Cole 

Argued at Richmond, Virginia 

JAMES B. TERRELL 

 MEMORANDUM OPINION* BY 

v. Record No. 1669-99-2 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 11, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HANOVER COUNTY 

H. Selwyn Smith, Judge Designate 

 L. Willis Robertson, Jr. (Cosby and 

Robertson, on brief), for appellant. 

 (Mark L. Earley, Attorney General; Shelly R. 

James, Assistant Attorney General, on brief), 

for appellee. 

 On appeal from his conviction of abduction with the intent 

to defile, in violation of Code § 18.2-48, and "felony assault," 

in violation of Code § 18.2-51, James B. Terrell contends that 

the trial court erred in sentencing him to thirty years 

imprisonment for "felony assault." We find that Terrell was 

convicted of unlawful wounding, in violation of Code § 18.2-51. 

We reverse the sentence imposed on that conviction and remand 

the case for resentencing. 

 The first issue in this case is whether Terrell was 

convicted of unlawful or malicious wounding. See Code 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
§ 18.2-51. The indictment charged that he "did unlawfully and 

feloniously stab, cut, or cause bodily injury to Doris Wickowski 

with the intent to maim, disfigure, disable or kill." The 

indictment contained no allegation that the act was committed 

maliciously. Thus, the indictment charged Terrell with unlawful 

wounding, rather than malicious wounding. See id.

 Terrell pled guilty to the indictment and, thus, to 

unlawful wounding, a Class 6 felony. The maximum prison 

sentence provided for that offense is five years imprisonment, 

rather than the maximum of twenty years imprisonment provided 

for malicious wounding, a Class 3 felony. See Code § 18.2-10. 

 The sentencing order, entered June 14, 1999, states: 

 The Court SENTENCED the defendant to: 

Incarceration with the Department of 

Corrections for the term of: twenty (20) 

years for Abduction, [Code §] 18.2-48, and 

thirty (30) years for Felony Assault, [Code 

§] 18.2-51. The total sentence imposed was 

fifty (50) years. 

 The Court SUSPENDED twenty (20) years 

of the Abduction sentence, upon [certain] 

conditions . . . ." 

This order, which was signed by the trial judge, became final. 

 The Commonwealth contends that the trial court actually 

intended to sentence Terrell for thirty years for the abduction 

and twenty years for the wounding and that the June 14, 1999 

order reflected a correctable clerical error. Code § 8.01-428 

provides: 

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 Clerical mistakes in all judgments or 

other parts of the record and errors therein 

arising from oversight or from an 

inadvertent omission may be corrected by the 

court at any time on its own initiative or 

upon the motion of any party and after such 

notice, as the court may order. During the 

pendency of an appeal, such mistakes may be 

corrected before the appeal is docketed in 

the appellate court, and thereafter while 

the appeal is pending such mistakes may be 

corrected with leave of the appellate court. 

Code § 8.01-428(B). 

 "[We] must dispose of the case upon the record and cannot 

base [our] decision upon appellant's petition or brief, or 

statements of counsel in open court. We may act only upon facts 

contained in the record." Smith v. Commonwealth, 16 Va. App. 

630, 635, 432 S.E.2d 2, 6 (1993). Nothing in the record of the 

sentencing hearing supports the sentence suggested by the 

Commonwealth; that is, that the trial court merely inverted and 

misrecorded the imposed sentences. 

 At sentencing the trial court stated, in relevant part: 

But I know one thing, it's just guidelines 

and all I have to is to justify -- I don't 

know whether I have to justify it; I have to 

state why I sentenced to more. But in my 

humble opinion, knowing that you will be 

serving eighty-five percent, at least 

eighty-five percent of the time I give you, 

I've taken into consideration your age, the 

sentence that I'm about to make, the age of 

your victim, the condition the victim was 

left in, where it took place, when it took 

place, and the end result being the ultimate 

that she will be suffering as far as the 

future's concerned. . . . 

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 I hear what the Commonwealth has said, 

but I'm sentencing him to thirty years in 

the penitentiary. I'm not suspending any 

portion of that because the way I figure it, 

eighty-five percent of that, if he serves 

that much time, you won't be able to get out 

until you're about twenty-five and a half 

years in the penitentiary. Add that to your 

present age at forty-one, right? You're 

forty-one years of age? 

* * * * * * * 

 On the abduction, the twenty years, I 

am going to suspend that -- all that time. 

At no time did the trial court clarify the sentence in such a 

way that the sentencing order can clearly be deemed a clerical 

error. Rather, the sentencing judge reviewed and signed the 

order. The Commonwealth lodged no objection. No further order 

has been entered. 

 The twenty year sentence imposed for abduction with the 

intent to defile is within the range provided by statute and is 

lawful. See Code § 18.2-48. That sentence and its suspension 

are not on appeal and are final. 

 The trial court erred in sentencing Terrell to thirty years 

imprisonment for a Class 6 felony, unlawful wounding. 

Accordingly, we reverse and vacate that sentence and remand that 

conviction to the trial court for resentencing in accordance 

with Code § 18.2-51. 

 Reversed and remanded.

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