COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements

Argued at Alexandria, Virginia

BRIAN DAVID LUTTRELL

OPINION BY

v. Record No. 2092-02-4 JUDGE JAMES W. BENTON, JR.

FEBRUARY 17, 2004

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF WARREN COUNTY

Dennis L. Hupp, Judge

David A. Downes for appellant.

Richard B. Smith, Senior Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

Brian David Luttrell contends the trial judge violated his plea agreement by imposing a

sentence that was inconsistent with “the sentencing guidelines applicable at the time of the offense”

and further erred by applying an unreliable assessment instrument in fixing his sentence. We affirm

the conviction.

I.

A grand jury indicted Luttrell for carnal knowledge of a child thirteen years of age in

violation of Code § 18.2-63. Prior to trial, Luttrell and the Commonwealth entered into a written

plea agreement in which Luttrell agreed to tender a guilty plea as sanctioned by North Carolina v.

Alford, 400 U.S. 25 (1970). The agreement contained the following paragraph concerning

sentencing:

In consideration of Defendant’s plea, the Commonwealth

and the Defendant agree that the Defendant shall be sentenced

within the sentencing range of the applicable Virginia Sentencing

Guidelines. The parties do not agree on whether the Defendant

should be sentenced to the guidelines in effect at the time of the
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offense or at the time of sentencing and reserve the right to argue

for their respective positions. The Defendant reserves the right to

appeal the court’s interpretation of the applicable guidelines. An

adverse decision to the Defendant shall not void this agreement.

The trial judge accepted Luttrell’s plea and scheduled a sentencing hearing. Prior to the

sentencing hearing, Luttrell filed a memorandum in which he asserted that the discretionary

sentencing guidelines in effect at the time of the offense must be used at sentencing. Opposing

that position, the prosecutor contended that the guidelines in effect at the time of the sentencing

should be used because it provided for a sex offender risk assessment. The trial judge ruled prior

to sentencing that the applicable guidelines were those in effect at the time of sentencing and

“that the risk assessment worksheet included within those guidelines is not an invalid

instrument.” Applying those guidelines, the trial judge sentenced Luttrell to five years in prison,

suspending four years and four months upon various conditions, and ordered a fine of five

hundred dollars. This appeal challenges these rulings.

II.

When a punishment for a crime is fixed within the limitations established by the statute

governing the crime, the principle is well established and long standing in Virginia that appellate

courts have no power to set aside the sentencing verdict merely on the ground of abuse of the

discretionary power conferred by the legislature. See Perry v. Commonwealth, 208 Va. 283,

289, 156 S.E.2d 566, 571 (1967); Satterwhite v. Commonwealth, 201 Va. 478, 483, 111 S.E.2d

820, 824 (1960); McCann v. Commonwealth, 174 Va. 429, 448, 4 S.E.2d 768, 775 (1939);

Messer No. 2 v. Commonwealth, 145 Va. 872, 879, 134 S.E. 565, 567 (1926). 

By statute the legislature has authorized a sentencing commission “to assist the judiciary

in the imposition of sentences by establishing a system of discretionary guidelines.” Code

§ 17.1-801. See Code § 17.1-800 et seq. A judge’s use of these discretionary guidelines is

governed by Code § 19.2-298.01, which provides, in pertinent part, as follows:
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A. In all felony cases, other than Class 1 felonies, the court shall

(i) have presented to it the appropriate discretionary sentencing

guidelines worksheets and (ii) review and consider the suitability

of the applicable discretionary sentencing guidelines established

pursuant to Chapter 8 (§ 17.1-800 et seq.) of Title 17.1. Before

imposing sentence, the court shall state for the record that such

review and consideration have been accomplished and shall make

the completed worksheets a part of the record of the case and open

for inspection. In cases tried by a jury, the jury shall not be

presented any information regarding sentencing guidelines.

B. In any felony case . . . in which the court imposes a sentence

which is either greater or less than that indicated by the

discretionary sentencing guidelines, the court shall file with the

record of the case a written explanation of such departure.

C. . . . In felony cases tried upon a plea of guilty, including cases

which are the subject of a plea agreement, the court shall direct a

probation officer of such court to prepare the discretionary

sentencing guidelines worksheets, or, with the concurrence of the

accused, the court and the attorney for the Commonwealth, the

worksheets shall be prepared by the attorney for the

Commonwealth.

*******

E. Following the entry of a final order of conviction and sentence

in a felony case, the clerk of the circuit court in which the case was

tried shall cause a copy of such order or orders, the original of the

discretionary sentencing guidelines worksheets prepared in the

case, and a copy of any departure explanation prepared pursuant to

subsection B to be forwarded to the Virginia Criminal Sentencing

Commission within five days.

F. The failure to follow any or all of the provisions of this section

or the failure to follow any or all of the provisions of this section in

the prescribed manner shall not be reviewable on appeal or the

basis of any other post-conviction relief.

In a series of decisions, we have held that the recommended sentencing ranges contained in these

discretionary guidelines are not binding on the trial judge but, rather, are mere tools to be used

by the judge in fixing an appropriate sentence within the limitations established by the statute

governing punishment for the particular crime. Jett v. Commonwealth, 34 Va. App. 252, 256,

540 S.E.2d 511, 513 (2001); Hunt v. Commonwealth, 25 Va. App. 395, 404-05, 488 S.E.2d 672,
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677 (1997); Bell v. Commonwealth, 18 Va. App. 146, 149, 442 S.E.2d 427, 429 (1994); Belcher

v. Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d 160, 161 (1993).

(A)

Luttrell contends that the trial judge violated his right to due process by applying the

guidelines in effect at the time of sentencing, which were more punitive than the guidelines in

effect when he committed the offense. We disagree.

We have previously addressed a circumstance in which “the trial judge . . . us[ed] the

Voluntary Sentencing Guidelines . . . in effect at the time of sentencing, rather than those in

effect at the time the crime was committed.” Belcher, 17 Va. App. at 45, 435 S.E.2d at 161. We

noted in Belcher that “the new guidelines permitted a harsher range of punishment,” id., and

“that the trial judge’s application of the new guidelines subjected [the defendant] to an increased

range of penalties.” Id. Despite those detriments, we held that “application of the guidelines,

either old or new, was voluntary” and that, in accordance with the general principles concerning

review of sentences in Virginia, “our review of the sentencing determination . . . is limited to

ascertaining whether the sentence falls within the range set by the legislature.” Id. We are

bound by this holding.

Luttrell correctly argues that Belcher did not address the issue of due process, and he

contends that Miller v. Florida, 482 U.S. 423 (1987), supports his due process claim. In holding

Florida’s law void as a violation of the ex post facto prohibition, the Supreme Court observed

that Florida’s sentencing guidelines, and all revisions to the guidelines, were legislatively

enacted. Id. at 425 (noting that “[t]he sentencing law provided . . . that . . . revisions [to the

guidelines] would become effective ‘only upon the subsequent adoption by the Legislature of

legislation implementing the guidelines as then revised’”). The Supreme Court also observed

that Florida’s sentencing guideline law required a judge who departed from a presumptive
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sentence range “to give clear and convincing reasons in writing for doing so” and subjected the

sentencing decision to “appellate review.” Id. at 426. Distinguishing Florida’s law from

administratively enacted guidelines such as the federal parole guidelines, the Supreme Court held

as follows:

We find the federal parole guidelines cases inapposite. The

courts that have upheld the retrospective application of federal

parole guidelines have articulated several reasons why the ex post

facto prohibition does not apply. The majority of these courts have

held that the federal parole guidelines are not “laws” for purposes

of the Ex Post Facto Clause. Other courts have found that the

guidelines merely rationalize the exercise of statutory discretion,

and that retrospective application of the guidelines thus does not

violate the Ex Post Facto Clause. Finally, some of the cases have

held that retrospective application of the guidelines does not result

in a more onerous punishment and thus does not constitute an ex

post facto violation.

None of the reasons given in the federal parole cases even

arguably applies here. First, the revised sentencing law is a law

enacted by the Florida Legislature, and it has the force and effect

of law. Nor do the revised guidelines simply provide flexible

“guideposts” for use in the exercise of discretion: instead, they

create a high hurdle that must be cleared before discretion can be

exercised, so that a sentencing judge may impose a departure

sentence only after first finding “clear and convincing reasons”

that are “credible,” “proven beyond a reasonable doubt,” and “not

. . . a factor which has already been weighed in arriving at a

presumptive sentence.” Finally, the revised guidelines directly and

adversely affect the sentence petitioner receives. Thus, this is not a

case where we can conclude . . . that “[t]he crime for which the

present defendant was indicted, the punishment prescribed

therefor, and the quantity or the degree of proof necessary to

establish his guilt, all remained unaffected by the subsequent

statute.”

Id. at 434-35 (citations omitted).

By contrast, the Virginia discretionary sentencing guidelines provide only flexible

guideposts for the trial judge to consider in determining the appropriate sentence within the range

of punishment defined by the legislature. Although the trial judge must provide a written

explanation for departure from the guidelines, see Code § 19.2-298.01(B), the judge is not bound
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by a presumptive range and need not justify the decision by any standard, let alone “clear and

convincing” evidence. The statute also precludes appellate review of the sentence. See Code

§ 19.2-298.01(F). Furthermore, the revision of the guidelines is left to the discretion of the

sentencing commission and does not require approval by the legislature.

As we have indicated, the discretionary guidelines are merely procedural tools to assist

and guide a judge in the exercise of the judge’s sentencing discretion. Because the guidelines

and revisions are not enacted by the legislature, they are more akin to the parole guidelines

described by the Supreme Court in Miller. Thus, we hold that the trial judge did not err in

finding no ex post facto law violation in the application of the guidelines. 

(B)

Luttrell also contends that the Sex Offender Risk Assessment Instrument, which the

sentencing commission has incorporated into the sentencing guidelines, is unreliable in

predicting recidivism. Code § 19.2-298.01(F) provides, however, that a trial judge’s failure to

correctly apply the sentencing guidelines “shall not be reviewable on appeal or the basis of any

other post-conviction relief.” See Hunt, 25 Va. App. at 405, 488 S.E.2d at 677 (rejecting claim

that defendant’s sentence should be set aside due to misapplication of the sentencing guidelines).

In view of this broad statutory exemption from appeal, we hold that the trial judge’s

consideration of the assessment instrument as a factor in applying the discretionary sentencing

guidelines provides no basis for review of Luttrell’s sentence on appeal. 

For these reasons, we affirm the conviction.

 Affirmed.