COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Baker, Benton, Coleman, 

Willis, Elder, Bray, Annunziata, Overton and Bumgardner 

Argued at Richmond, Virginia 

LARRY JOE DARGAN, JR. 

 OPINION BY 

v. Record No. 2239-96-3 JUDGE JERE M. H. WILLIS, JR. 

 JUNE 9, 1998 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF BUCHANAN COUNTY 

Keary R. Williams, Judge 

 No brief or argument for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Convicted of possession of a weapon while an inmate in a 

correctional facility, in violation of Code § 53.1-203(4), Larry 

Joe Dargan, Jr., contends that the trial court erred (1) in 

modifying his sentence more than twenty-one days after its 

imposition and (2) in modifying his sentence without the 

intervention of a jury. A divided panel of this Court reversed 

the judgment of the trial court. See Dargan v. Commonwealth, 

Record No. 2239-96-3, November 25, 1997 (unpublished). We stayed 

the mandate of that decision and granted rehearing en banc. Upon 

rehearing en banc, we affirm the judgment of the trial court. 

 Dargan was convicted in a jury trial of possession of a 

weapon while an inmate in a correctional facility, in violation 

of Code § 53.1-203(4). That crime is a Class 6 felony, 
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punishable by "a term of imprisonment of not less than one year 

nor more than five years, or in the discretion of the jury . . . 

confinement in jail for not more than twelve months and a fine of 

not more than $2,500, either or both." Code § 18.2-10(f). 

 The trial court erroneously instructed the jury that the 

punishment provided for Dargan's crime was a term of imprisonment 

of not less than one year nor more than ten years, or, in the 

discretion of the jury, confinement in jail for not more than 

twelve months and a fine of not more than $2,500, either or both. 

 The jury fixed Dargan's punishment at imprisonment for ten 

years. By final order entered August 30, 1996, the trial court 

imposed that sentence. 

 By order entered October 28, 1996, the trial court ruled 

that the jury had been instructed erroneously and that the 

sentence imposed August 30, 1996 exceeded the term authorized by 

law. Over Dargan's objection, it set aside five years of that 

sentence and imposed a sentence of five years imprisonment. 

 "'[T]he imposition of [a] void sentence does not terminate 

the jurisdiction of the [trial] court.'" Powell v. Commonwealth, 

182 Va. 327, 340, 28 S.E.2d 687, 692 (1944) (citation omitted). 

A trial court may correct a void or unlawful sentence at any 

time. Id.

 A court may impose a valid sentence in 

substitution for one that is void, even 

though service of the void sentence has been 

commenced. Where the sentence imposed is in 

excess of that prescribed by law, that part 

of the sentence which is excessive is 

invalid. A sentence in excess of one 
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prescribed by law is not void ab initio

because of the excess, but is good insofar as 

the power of the court extends, and is 

invalid only as to the excess. 

Deagle v. Commonwealth, 214 Va. 304, 305, 199 S.E.2d 509, 510-11 

(1973) (citations omitted). 

 In Deagle, the jury had four sentencing alternatives 

available. It chose two incompatible sentences. The Supreme 

Court concluded that "[c]ommon sense and reason dictate that the 

jury, if it had been required to choose between the two 

punishments it fixed, would have imposed the greater, the 

penitentiary sentence, and not the lesser, the fine." Id. at 

306, 199 S.E.2d at 511. It held that a trial court may 

substitute a lawful sentence for a sentence that is excessive by 

deleting the excessive portion of the invalid sentence. Id. See 

also Powell, 182 Va. at 340, 28 S.E.2d at 692 (a trial court may 

impose a valid sentence in substitution for a void one even 

though the defendant has begun serving the void sentence). 

 Dargan contends that this case is controlled by Hodges v. 

Commonwealth, 213 Va. 316, 191 S.E.2d 794 (1972). However, 

Hodges is legally and factually distinguishable. In explaining 

the inapplicability of Hodges to the situation presented by this 

case, the Supreme Court in Deagle said: 

 In both Hodges v. Commonwealth, 213 Va. 

316, 191 S.E.2d 794 (1972), and Huggins v. 

Commonwealth, 213 Va. 327, 191 S.E.2d 734 

(1972), the penalty fixed by the jury was 

death. After Furman v. Georgia, 408 U.S. 238 

(1972), which rendered the sentences 

pronounced on those verdicts invalid, we 

declined to summarily reduce the death 
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sentences of Hodges and Huggins to life 

imprisonment as urged by the Attorney 

General. For, as we noted in Hodges, 

 " . . . it would be sheer speculation 

for us to conclude that, if death had not 

been a permissible punishment, the jury would 

have fixed the punishment at life 

imprisonment. The jury might well have 

agreed upon 99 years, as it did in the 

Ferguson murder". 

 But the speculative element which was 

present in Huggins and Hodges is not present 

here. 

 From the verdicts we know that the jury 

intended that Deagle be sentenced to serve 

ten years in the penitentiary on each 

indictment. 

Id. at 306, 199 S.E.2d at 511 (quoting Hodges, 213 Va. at 321, 

191 S.E.2d at 797). 

 The alternative sentences available in Hodges fell into 

three categories: (1) death, (2) life imprisonment, and (3) 

imprisonment for a term of years. The unavailability of 

sentencing in one category did not render either other category 

the automatic choice. In this case, the sentence imposed by the 

jury fell within a single classification, a term of years. The 

correct sentence imposed by the trial court fell within that 

classification and, indeed, was encompassed within the sentence 

imposed by the jury. By imposing a ten-year term, the jury 

unquestionably intended that Dargan should serve at least five 

years. Therefore, Deagle controls this case and the trial court 

did not err in conforming the sentence to a term permitted by 

law. 
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 Dargan contends that the modification of his sentence by the 

trial court violated his constitutional right to have a jury fix 

his sentence. We find no merit in this argument. Dargan was 

tried and convicted by a jury which imposed upon him the sentence 

that he now serves. 

 The judgment of the trial court is affirmed. 

 Affirmed.
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Elder, J., with whom Annunziata, J., joins, concurring. 

 I concur in the result but only because the sentence imposed 

by the jury pursuant to the erroneous instruction was the maximum 

term that would have been imposed under that instruction and the 

time set aside by the trial court resulted in the maximum

sentence allowable by law. Because the jury imposed the maximum 

sentence authorized by the erroneous instruction, the trial court 

could ascertain by "[c]ommon sense and reason" what sentence the 

jury would have imposed had it been properly instructed. Deagle 

v. Commonwealth, 214 Va. 304, 306, 199 S.E.2d 509, 511 (1973). 

However, if the jury had imposed any sentence under the erroneous 

instruction other than the maximum, the court would have been 

forced to resort to speculation to determine what the jury's 

sentence would have been. In such a case, I would remand for 

resentencing. 
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Benton, J., with whom Fitzpatrick, C.J., and Coleman, J., join, 

 dissenting. 

 A jury convicted Larry Joe Dargan, Jr., of possession of a 

weapon while an inmate in a correctional facility in violation of 

Code § 53.1-203(4) and malicious wounding in violation of Code 

§ 18.2-51. Based upon an erroneous instruction concerning the 

penalty for the weapon possession conviction, the jury 

recommended a prison sentence of ten years, which was the maximum 

term stated in the instruction and is five years more than the 

maximum term permitted for a violation of Code § 53.1-203(4). 

See Code § 18.2-10(f). Based upon a proper instruction 

concerning the penalty for malicious wounding, the jury sentenced 

Dargan to ten years in prison, which is ten years less than the 

statutorily authorized maximum penalty. See Code § 18.2-51; Code 

§ 18.2-10(c). The issue presented on this appeal is whether the 

trial judge or a jury should have resentenced Dargan when the 

error was discovered more than twenty-one days after entry of the 

conviction order. I believe Dargan is entitled to be resentenced 

by a jury. 

 The right to trial by jury "is fundamental to the American 

scheme of justice." Duncan v. Louisiana, 391 U.S. 145, 149 

(1968); see Barker v. Commonwealth, 230 Va. 370, 374, 337 S.E.2d 

729, 732 (1985). Furthermore, a properly instructed jury is 

essential to a fair trial. See Shepperson v. Commonwealth, 19 

Va. App. 586, 593, 454 S.E.2d 5, 9 (1995). See also People v. 

Rone, 311 N.W.2d 835, 839 (Mich. Ct. App. 1981) (defendant's 
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right to a jury trial "includes the right to a properly 

instructed jury"); Herbert v. Travelers Indemnity Co., 193 So.2d 

330, 337 (La. Ct. App. 1966) (right to trial by jury implies 

right to have all material evidence "be heard and passed on by a 

properly instructed jury"). A jury that is affirmatively 

misinformed as to the correct sentence range does not satisfy the 

right to trial by jury. 

 "[J]uries cannot be allowed to speculate. It 

is the function of the court to inform the 

jury of the law by which its [sentencing] 

verdict must be controlled. The purpose of 

the instructions is to enable the jury to 

understand and apply the law to the facts of 

the case. The accused has a right to have a 

jury pass upon the evidence under proper 

instructions." 

Rone, 311 N.W.2d at 839 (citations omitted). The trial judge's 

erroneous instruction violated Dargan's right to a correctly 

charged jury and impaired his right to trial by jury. 

 In Deagle v. Commonwealth, 214 Va. 304, 199 S.E.2d 509 

(1973), the jury convicted the defendant of two felony offenses. 

 For each offense, the judge instructed the jury on the statutory 

range of four separate sentencing options. 

 Under the statute the jury had four 

alternatives available in fixing Deagle's 

punishment. These were: (1) to impose a 

penitentiary sentence of not less than one 

nor more than twenty years; (2) to fix 

Deagle's punishment at a jail sentence not 

exceeding twelve months and a fine not 

exceeding $1,000; (3) to impose a jail 

sentence of not more than twelve months; or 

(4) to impose a fine of not more than $1,000. 

Id. at 305, 199 S.E.2d at 511. For each offense, the jury chose 
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two penalties, a penitentiary sentence and a fine, which were not 

compatible under the statute. Id. Significantly, however, the 

judge in Deagle had "correctly instructed [the jury] regarding 

the punishment which it might impose upon conviction" for each 

offense. Id. at 304, 199 S.E.2d at 510. 

 Because the Deagle jury was correctly instructed, the 

Supreme Court's decision upholding the trial judge's remedy for 

the incompatible sentences turned upon the Court's determination 

of the jury's intent in rendering the verdict. No speculation 

was required to conclude that the jury wanted to impose two units 

of punishment because the jury, in fact, had rendered those 

verdicts based on a proper instruction of the statutory range of 

punishment. Thus, the Supreme Court could rule with confidence 

"[f]rom the verdicts . . . that the jury intended that Deagle be 

sentenced to serve ten years in the penitentiary on each 

indictment . . . [and] to pay a fine of $1,000 on each 

indictment." Id. at 306, 199 S.E.2d at 511. The Supreme Court 

also had to decide whether the two units of punishment that the 

jury recommended for each conviction could be severed based upon 

the finding of the jury's intent. Concluding that they could, 

the Supreme Court noted that "[c]ommon sense and reason dictate 

that the jury, if it had been required to choose between the two 

punishments it fixed, would have imposed the greater, the 

penitentiary sentence, and not the lesser, the fine." Id. In 

other words, the Court approved the trial judge's decision to 
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eliminate the entirety of one of two specific sentences imposed. 

 That rationale is inapplicable in this case. Unlike in 

Deagle, the judge at Dargan's trial erroneously instructed the 

jury on the statutorily permissible range of sentences. 

Consequently, the jury operated upon an invalid premise (the 

improper sentence range) and rendered a sentence that bears no 

connection to the permissible statutory punishment. "The fact 

that the jury . . . reached its conclusions [on the weapons 

sentence] upon the application of an erroneous legal principle 

invalidates the [sentencing] verdict[]." Shepperson, 19 Va. App. 

at 593, 454 S.E.2d at 9. Thus, we can draw no valid or logical 

conclusions of the jury's intent from the sentence that the jury 

recommended and the trial judge imposed at Dargan's trial. 

 Based upon the erroneous instruction, the jury may have 

concluded that the legislature deemed the weapons offense to be a 

graver offense than it is. We have no basis to logically infer 

that the jury, if properly instructed that the offense was not 

one punishable by ten years in prison, would have sentenced 

Dargan to the statutory maximum of five years in prison. We 

cannot know whether the jury may have concluded that the ten-year 

sentence in the related malicious wounding conviction would 

justify an identical sentence in the weapons conviction perhaps 

to facilitate concurrent sentences. We cannot possibly determine 

how and through what process the jury arrived at its sentence 

when the jury was not properly instructed. We would doubly 
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speculate to reach such a conclusion and then assume that a 

properly instructed jury would have derived its sentence through 

the same process. "[T]o hypothesize a . . . verdict that was 

never in fact rendered - no matter how inescapable the findings 

to support that verdict might be - would violate the jury-trial 

guarantee." Sullivan v. Louisiana, 508 U.S. 275, 279 (1993). 

 Indeed, the jury's sentences at Dargan's trial tend to 

refute the majority's belief that the jury would have imposed the 

maximum sentence. The jury did not sentence Dargan to the 

statutory maximum sentence that it could have imposed on the 

malicious wounding offense. We can only conjecture what 

considerations of the evidence influenced the jury and factored 

into the jury's sentencing decision. "[J]uries are not bound by 

what seems inescapable logic to judges." Morissette v. United 

States, 342 U.S. 246, 276 (1952). The truism that the majority 

constructs from Deagle, that the jury would have nonetheless 

given the maximum allowed sentence, is based in part on a premise 

that does not exist in this case, viz. that the jury was properly 

instructed. 

 Furthermore, even if we ignore the judge's erroneous 

instruction, a finding of the jury's intent from the sentence 

alone requires in this case, unlike in Deagle, sheer speculation. 

 The jury's sentence of Dargan to ten years in prison was an 

indivisible unit of punishment and not susceptible to parsing. 

In Deagle, the ten-year penitentiary sentence the jury expressly 
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determined to impose was a unit of punishment authorized by 

statute. The fine that the jury imposed was also a statutorily 

authorized unit of punishment. Thus, in reaching its "common 

sense" solution in Deagle, the trial judge imposed an intact unit 

of punishment from a statutorily authorized punishment that the 

jury had selected. 

 The five-year sentence the trial judge imposed on Dargan is 

not a unit of punishment the jury expressly imposed. Thus, 

neither the trial judge nor this Court is able to determine 

whether the jury necessarily would have imposed a five-year 

sentence if properly instructed. The trial judge could only 

speculate that the unlawfully excessive verdict could be 

corrected by merely reducing it to the statutorily permissible 

maximum period of imprisonment. See, e.g., Hodges v. 

Commonwealth, 213 Va. 316, 320-21, 191 S.E.2d 794, 797 (1972) 

(holding that when a sentence of death was void, the Court could 

not speculate that the jury would have fixed punishment at life 

in prison, the maximum possible term of imprisonment, rather than 

a term of years). In Hodges and Huggins v. Commonwealth, 213 Va. 

327, 191 S.E.2d 734 (1972), the Supreme Court recognized that 

even a properly instructed jury's verdict cannot be summarily 

reduced to the "lawful maximum sentence" where the Court is 

required to speculate that the jury would have done so. Id. at 

328, 191 S.E.2d at 735-36. 

 Dargan's right to a jury trial "requires more than appellate 
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speculation about a hypothetical jury's action." Sullivan, 508 

U.S. at 280. The majority's conclusion that a properly 

instructed jury would have sentenced Dargan to the maximum term 

allowable is not only speculative but has no bearing on the 

question whether Dargan was denied the right to have a properly 

instructed jury make the sentencing decision. 

 In Virginia, when the court sits without a 

jury, the trial judge both tries the issue of 

guilt and fixes the penalty; when the accused 

demands a jury, the jury performs both 

functions. The right to have the jury 

perform both functions is a part of the right 

of trial by jury. 

Huggins, 213 Va. at 328, 191 S.E.2d at 736. "'Trial by jury is a 

sacred right, and should be sedulously guarded.'" Supinger v. 

Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815 (1998) (citation 

omitted). "[T]he right to a jury trial very likely serves its 

intended purpose of making judicial or prosecutorial unfairness 

less likely." Duncan, 391 U.S. at 158. "The constitution does 

not allow an appellate court to arrogate to itself a function 

that the defendant, under the [Constitution], can demand be 

performed by a jury." Rose v. Clark, 478 U.S. 570, 593 (1986) 

(Blackmon, J., dissenting). 

 Because a jury convicted Dargan and determined his 

punishment upon improper instructions, Dargan is entitled to have 

a properly instructed jury reconsider his punishment. 

 Under our Constitution the right of trial by 

jury is assured in criminal cases. And where 

the defendant does not waive his right to 

trial by jury, the jury determines his guilt 

or innocence and, if guilty, ascertains his 
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punishment. 

Deagle, 214 Va. at 305, 199 S.E.2d at 511 (citation omitted). 

Therefore, I would reverse the trial judge's ruling and remand 

this case for a new sentencing hearing before a jury on the 

conviction of possessing a weapon while an inmate in a 

correctional facility in violation of Code § 53.1-203. See Code 

§ 19.2-295.1. See also Davis v. Commonwealth, 17 Va. App. 666, 

675, 440 S.E.2d 426, 432 (1994).