COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Cole man and Lemons ∗ Argued at Rich mond, Virginia

RONALD D. McCRAY MEMORANDUM OPINION ∗∗ BY v. Record No. 1276-99-2 JU DGE JAMES W. BENTON, JR. MARCH 21, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT CO URT OF THE CITY OF COLONIAL HEIGHTS William R. Sh elton, Judge William B. Bray for appellant. (Mark L. Earley, Attorn ey General; Richard B. Smith, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.

∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia.

∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. This appeal arises from orders revoki ng suspended prison sentences prev iously given to Ronald Donnell McCray . McCray contends that his se ntences for two felony larcen y convictions were void, rendering th e trial judge's revocation of the suspended sentences given pu rsuant to those convictions a null ity. He also contends that the tr ial judge erred in revoking the suspended sentence given to hi m for a possessi on of cocain e conviction because that revocation occurred during the same proceeding inwhich the trial judge revoked th e suspensions involving the larceny senten ces. For the re asons that follow , we reverse the orders revoking the suspended senten ces related to the larceny convictions and dismiss those cases, and we affirm the revocation of the suspended sentence in the case of possessi on of cocaine.

I. On May 10, 1988, th e trial judge entered judgme nt orders convicting Ronald Donn ell McCray of three felonies . The judge convicted McCr ay for possession of cocaine and sentenced him to ten years in prison with five years su spended. He also convicted McCray for felony larceny, issu ing a bad check in violation of Code § 18.2-181, and se ntenced him to twenty years in prison with fifteen years susp ended. On another felony larceny conv iction for issuing a bad chec k, the trial judg e sentenced McCr ay to twenty years in prison with all twenty years susp ended. Th e larceny

sentences were to be served consecutive to the cocain e sentence. Following a he aring on August 22, 19 95, and a fi nding that McCray violated the co nditions of th e suspended se ntences, the trial judge "revok e[d] the previously su spended sentence[s] [on all three convic tions] but resuspend[ed ]" the sentences on specified cond itions. At a he aring on November 21, 1995, the trial judge made a finding that Mc Cray violated th e conditions of the 1995 "resuspen[sion ]." The trial judge th en "revoke[d] five years of [the] previous ly suspended se ntence on th e charge of possession of co caine, but re-sus pend[ed] two year s under the same

- 2 -terms and conditio ns as previously set ou t." The ju dge ordered McCray placed on su pervised probation up on his release from prison. On March 30, 1999, at a hearing to dete rmine whethe r McCray had failed to comply with th e conditions of his suspended sentences, McCray's co unsel stipulated that McCray committed the charged infrac tions. He also informed the tria l judge that the 1988 convictions for is suing bad checks "are Class 6 felonies" and that the maximum senten ce that should have been imposed was five years for each charge . Nonetheless, the trial judge ruled as follows: It's the judgement of the Court . . . [that] you have about 37 years remaining here [and] that we're suspending 2 [years] on your cocaine and 15 [years] on your worthless checks, and 37 years in all. It's the judgment of the Court that the suspended time be revoked and that you be sentenced to the penitentiary to serve all the suspended time that you have remaining here. I will again suspend all of that time that you have here with the exception of three years. Consistent with that ruling, the trial judge entered an order on May 2, 1999, containing the following: The Court SENTENCES the defendant to: Incarceration . . . for the term of: 2 years for Possession of Cocaine, 15 years for Felony Worthless Check, CR88B-615-02 and, 20 years for Felony Worthless Check, CR88B-615-03. The total sentence imposed is 37 years. The sentence shall run consecutively with all other sentences.

- 3 -The Court SUSPENDS 14 years of the Felony worthless Check, CR88-615-02 sentence, and 20 years of the Felony Worthless Check, CR88B-615-03 sentence, for a total suspension of 34 years . . . . McCray appeals from this order.

II. The Commonwealth concedes that, when McCray was convicted in 1988 on two felony bad check charges, Code § 18.2-181 provided that such a violation was a Class 6 felony and that the maximum sentence the trial judge could have imposed for such a conviction was five years in prison. See Code § 18.2-10(F). Accordingly, the Commonwealth agrees that after the trial judge sentenced McCray in 1988 to serve five years in prison on one bad check conviction, the trial judge could not have later revoked any portion of that sentence. The Commonwealth also agrees that the trial judge did not specify either a period of probation or suspension when suspending all of the sentence on the second bad check charge. Thus, for any sufficient cause occurring within five years from 1988, the trial judge had a maximum of one year after that five year period within which he could have revoked McCray's suspended sentence on that charge. See Code § 19.2-306. The trial judge did not do so. The Supreme Court has ruled that "a sentence in excess of one proscribed by law is not void ab initio because of the excess, but is good insofar as the power of the court extends,

- 4 -and is invalid only as to the excess." Deagle v. Commonwealth , 214 Va. 304, 305, 199 S.E.2d 509, 511 (1973). Applying this principle, we hold that the trial judge erred in 1988 by imposing a prison sentence in excess of five years on each of the bad check convictions and that, therefore, the trial judge had no authority on May 2, 1999 to revoke suspended sentences with respect to the bad check convictions and incarcerate McCray on those revocations.

III. At the hearing on March 30, 1999, McCray stipulated that he had violated the terms of the suspended sentence. Moreover, the record establishes that the suspended sentence for the possession of cocaine conviction was then still in effect. Although McCray did not raise any objection at trial concerning the revocation of the sentence for possession of cocaine, he contends on appeal that the trial judge also erred in revoking that sentence because it was done during "a unitary revocation procedure based upon a Show Cause for violating both void and valid sentences." Absent an objection at trial, we are precluded by Rule 5A:18 from considering this issue. Furthermore, the record does not affirmatively show that a miscarriage of justice has occurred. See Mounce v. Commonwealth , 4 Va. App. 433, 436, 357 S.E.2d 742, 744 (1987). McCray stipulated that he violated the conditions upon which the suspended sentence for possession of cocaine was imposed.

- 5 -Furthermore, the record clearly established that at each proceeding since 1988, the trial judge separated and tailored each revocation to each conviction. Indeed, the order appealed from specifies the precise portion of the revoked suspended sentence attributable to the possession of cocaine conviction. Accordingly, we affirm this portion of the order. Affirmed, in part and reversed and dismissed, in part

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