COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Hale y and Senior Judge Bumgardner Argued at Chesapeake, Virginia

ALFRED LEROY MARSHALL MEMORANDUM OPINION * BY v. Record No. 0500-09-1 J UDGE RUDOLPH BUMGARDNER, III FEBRUARY 23, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Charles E. Poston, Judge J. Barry McCracken, Assistant Public Defender, for appellant. Craig W. Stallard, Assistant A ttorney General (William C. Mims, Attorney General, on brief), for appellee.

The trial court convicted Alfred Leroy Marshall of possession of a firearm by a felon, Code § 18.2-308.2, and sentenced him to five years in the penitentiary. He appeals the sentence maintaining the trial court erroneously sentence d him to a mandatory five-year term when the evidence failed to prove he had a prior convictio n for a violent crime. We conclude the trial

court corrected the error when it ruled on the defendant’s motion to reconsider the sentence. Accordingly, we affirm. On April 2, 2008, the grand jury indicted th e defendant for possessing a firearm after having been previously convict ed of a felony, Code § 18.2-308.2. At trial, the Commonwealth introduced a conviction order pr oving prior convictions for re ceiving stolen goods and eluding a police officer. At a subsequent sentencing hear ing, the presentence report incorrectly stated the defendant had been convicted of possession of a fi rearm after having been convicted of a violent

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - felony. The report recommended the five-year se ntence mandated for a prior conviction of a

violent crime. Neither attorney noted the error that the evidence only proved convictions of non-violent crimes, and the trial court imposed a five-year mandatory sentence without objection

from either side. Subsequently, the defendant filed a motion to reconsider his sentence and to impose only a two-year mandatory sentence, which would ha ve been the correct mandatory sentence under the evidence presented. At a hearing on the motion, the trial court acknowledged the evidence proved only non-violent felonies, but noted the correct penalty was a maximum of five years, as a Class 6 felony, with a mandatory minimum of two years. The trial court denied the motion to reduce the sentence to a two-year mandatory sent ence as requested in the motion. It stated: “Based on his record, the Court would have se ntenced him to five years in any event.” 1 Although initially all part ies failed to realize the correct penalty, and the trial court erred by imposing a mandatory five-year sentence, the tr ial court subsequently corrected the error by imposing a discretionary sentence. The defendant was charged with possession of a firearm by a convicted felon. Despite

the defendant’s ex tensive record, 2 the Commonwealth only submitted evidence of two

1 In a footnote in his opening brief, the de fendant complained the hearing on the motion to reconsider “was an empty shell” because he “was not offered the opportunity to present evidence in mitigation nor was offered an opportunity to address the court in any fashion.” This issue it is not properly before th is Court because the defendant ne ver requested an opportunity to address the trial court or to ra ise the issue at the hearing. See Rule 5A:18.

2 The defendant’s presentence re port listed five of his most recent and serious prior criminal convictions, two of which involved ma licious wounding and abduction by force. The report chronicled an extensive criminal histor y beginning with a convic tion in 1982 for robbery. The report also reflected at least four additi onal prior violent felony convictions: Robbery, 2/25/87 in New York, sentenced 3/1/88; Burgla ry, 10/17/92 in Norfolk, sentenced on 1/20/93; Abduction by Force, 2/18/93 in Norfolk, se ntenced on 8/20/93; and Malicious Wounding, 5/20/97 in New Jersey, sentenced on 8/17/98. The report showed several additional convictions, including a 1989 conviction in Atlanta, Geor gia for drug possession, a 1990 conviction in- 3 - non-violent convictions. That evidence subjec ted the defendant to a two-year mandatory sentence with the trial court having discretion to impose a maximum sentence of up to five years, Code § 18.2-308.2(A). Not realizing the discrepa ncy between the defend ant’s record and the proof presented at trial, the tr ial court erroneously imposed a mandated sentence of five years. The trial court learned of the sentencing e rror when the defendant filed his motion to reconsider. At the hearing on that motion, the tr ial court reconsidered the defendant’s sentence to five years in the penitentiar y, but it denied the motion to redu ce it. The trial court indicated that eliminating the five-year mandate would not have affected the total sentence because the trial court would have imposed the five-year sent ence in the exercise of its discretion given the

defendant’s serious and ex tensive criminal history. “It is well settled that when the maximum puni shment is prescribed by statute, ‘and the sentence [imposed] does not exceed that maximum, the sentence will not be overturned as being

an abuse of discretion.’” Valentine v. Commonwealth , 18 Va. App. 334, 339, 443 S.E.2d 445, 448 (1994) (quoting Abdo v. Commonwealth , 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)). The sentence imposed by the trial judge was wi thin the range set by the legislature. The defendant’s record shows the trial court properly exercised its discretion. Accordingly, the judge

did not abuse his discretion. It plainly appears from the r ecord in this case that the initial failure to recognize the correct sentencing parameters did not affect th e final sentence imposed after the rehearing.

Atlanta, Georgia for receiving stolen goods, two 1994 drug possession convi ctions in New York, a 2003 conviction in Norfolk for grand larceny, and a 2006 probation violation.- 4 - Lavinder v. Commonwealth , 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991) ( en banc ) (citing Code § 8.01-678). Accordin gly, we affirm the sentence.

Affirmed.