COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Felton, Judges Frank and McClanahan 

Argued at Richmond, Virginia 

JERMAINE LAMONT TUNSTALL 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0725-08-2 CHIEF JUDGE WALTER S. FELTON, JR. 

FEBRUARY 10, 2009 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Bradley B. Cavedo, Judge 

 Catherine S. Rusz, Assistant Public Defender (Office of the Public 

Defender, on briefs), for appellant. 

 Gregory W. Franklin, Assistant Attorney General (Robert F. 

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

Following his conviction on a plea of guilty to possession of cocaine with intent to 

distribute, Jermaine Lamont Tunstall (“appellant”) appeals from the judgment of the trial court 

sentencing him to twenty years incarceration, suspending eight years and six months of that 

sentence, leaving appellant to serve an active term of eleven years and six months incarceration. 

Finding no error, we affirm the judgment of the trial court. 

Appellant contends the trial court erred by considering what he asserts was an 

“incorrectly calculated” sentencing guideline worksheet that included, among other factors, 

calculations related to his prior conviction of possession of cocaine with intent to distribute and 

three juvenile adjudications, two for attempted robbery and one for robbery.1

 He asserts that he 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 The sentencing guideline worksheet presented to the trial court, based on a 110 point 

total calculation, suggested a sentencing range of eight years, four months to thirteen years, eight 

months, with a range midpoint of eleven years, two months. At trial, appellant argued that if his 
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pled guilty to and was convicted of possession of cocaine with intent to distribute as a first 

offense, but that the sentencing guideline worksheet calculation was based on a conviction of 

“possession with intent, second or subsequent offense.” Appellant further contends the trial 

court abused its discretion in imposing the term of active incarceration. Appellant’s arguments 

are without merit. 

Assuming without deciding that the discretionary sentencing guideline worksheet 

contained a calculation error, we nevertheless find that the trial court did not err in sentencing 

appellant. 

In a series of decisions, we have held that the recommended 

sentencing ranges contained in the[] discretionary [sentencing] 

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. 

Luttrell v. Commonwealth, 42 Va. App. 461, 465, 592 S.E.2d 752, 754 (2004) (citing 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, 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)). 

Moreover, Code § 19.2-298.01 specifically provides that a trial court’s failure to sentence 

consistent with the discretionary sentencing guideline recommendation “shall not be reviewable 

on appeal or the basis of any other post-conviction relief.” Code § 19.2-298.01(F). “In view of 

this broad statutory exemption from appeal, . . . the trial [court’s] consideration of” any particular 

“factor in applying the discretionary sentencing guidelines provides no basis for review of [an 

 

prior conviction for possession of cocaine with intent to distribute was excluded from the 

sentencing guideline worksheet calculation, the point total would have been 50 points less, 

resulting in a much lower suggested sentencing range. 
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accused’s] sentence on appeal.” Luttrell, 42 Va. App. at 468, 592 S.E.2d at 755. “The law on 

this issue could not be more clear. This Court’s review is limited to whether the sentence fell 

within the permissible statutory range.” Smith v. Commonwealth, 26 Va. App. 620, 626, 496 

S.E.2d 117, 120 (1998). “It is well settled that when the maximum punishment 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)) (alteration in original). See also, Jett, 34 Va. App. at 256, 540 S.E.2d at 

513 (refusing to interfere with trial court’s judgment in recalculating recommended sentencing 

guideline worksheet because “sentences imposed were within the statutory limits”). 

Here, appellant was convicted, following his guilty plea,2

 of possession of cocaine with 

intent to distribute in violation of Code § 18.2-248. Code § 18.2-248 provides, in pertinent part, 

that an accused “shall upon conviction be imprisoned for not less than five nor more than 40 

years.” Code § 18.2-248(C). The sentence imposed by the trial court, after stating from the 

bench that it “considered all of the information before [it] on the conviction including the 

presentence investigation report[,] . . . the sentencing guidelines[,] . . . the evidence[,] and 

argument of counsel,” was well within the statutory sentencing range established by the General 

Assembly. 

For the first time on appeal, appellant argues that the trial court’s consideration of the 

asserted flaw in the sentencing guideline worksheet calculation, and the sentence imposed by the 

trial court, “should be subject to appellate review to ensure that he was accorded fundamental 

 2

 Appellant made no motion for leave to withdraw his guilty plea pursuant to Code 

§ 19.2-296. 
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fairness in sentencing and that he was accorded due process of law,” despite the clear language 

of Code § 19.2-298.01(F) and our prior holdings in Luttrell, Valentine, and Jett. 

Assuming without deciding that appellant’s due process argument related to his claim of 

sentencing error is outside the proper scope of Rule 5A:18,3 we nonetheless perceive no due 

process violation. In Jett, we held: 

The legislature acted within its authority when it created the 

sentencing guidelines and provided that those guidelines would be 

discretionary and not mandatory. It confirmed the discretionary 

aspect of the guidelines by leaving their implementation solely 

within the discretion of the trial courts and by excluding decisions 

relating to the application of the guidelines from appellate review. 

This structural determination denied [appellant] no substantive or 

procedural right that he was entitled under the law to enjoy. 

Jett, 34 Va. App. at 257, 540 S.E.2d at 513. 

For the foregoing reasons, we affirm the judgment of the trial court. 

 Affirmed.

 3

 “Rule 5A:18 applies to bar even constitutional claims.” Ohree v. Commonwealth, 26 

Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).