COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

SARAH MARGARET RUNYON, S/K/A 

 SARAH ANN RUNYON 

 OPINION BY 

v. Record No. 0113-98-3 JUDGE JERE M. H. WILLIS, JR. 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF WASHINGTON COUNTY 

Charles H. Smith, Jr., Judge 

Emmitt F. Yeary (Michael A. Bragg; Joseph P. 

Johnson, Jr.; Yeary & Associates, on briefs), 

for appellant. 

Michael T. Judge, Assistant Attorney General 

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

for appellee. 

 On appeal from her conviction for distribution of cocaine 

as an accommodation, in violation of Code § 18.2-248, Sarah 

Margaret Runyon contends that the trial court erred (1) by 

limiting testimony, during the sentencing phase of trial, 

regarding her mental condition and the effects of confinement in 

jail on that condition, and (2) by refusing to suspend all or 

part of her sentence. We disagree and affirm the judgment of 

the trial court. 

 A jury convicted Runyon of distributing cocaine as an 

accommodation, in violation of Code § 18.2-248. Before the 

sentencing phase of her trial, Runyon moved for a continuance on 
the ground that her psychiatrist, Dr. Robert W. Hill, whom she 

had not summoned, was unavailable to testify. The trial court 

denied that motion. Dr. Maria Abeleda, another treating 

psychiatrist, testified that she had diagnosed Runyon with panic 

attacks, anxiety disorder, depression, a personality disorder, 

and social retardation, which made her easily susceptible to 

suggestion and stunted her social ability to that of a 

twelve-year-old child. Upon objection, the trial court refused 

to permit Dr. Abeleda to explain the effect that confinement in 

jail would have on Runyon psychologically. The jury fixed 

Runyon's sentence at twelve months in jail.1

I. Psychiatric Testimony 

 Runyon contends that the trial court erred in excluding 

evidence of her need for treatment and of the effect that 

confinement in jail would have on her mental condition. We 

disagree. 

 During the sentencing phase of a trial, the jury should 

hear "relevant, admissible evidence related to punishment." 

Code § 19.2-295.1. Determination of the admissibility of such 

evidence lies within the sound discretion of the trial court. 

 

 1Runyon notes on brief that the jury's recommendation and the 

transcript from the sentencing hearing reflect that the sentence 

is twelve months in jail, while the sentencing order provides 

"incarceration with the Virginia Department of Corrections 

. . . ." Because Runyon assigned no error to this discrepancy, we 

do not address it on appeal. 

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See Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 

842 (1988). 

 Runyon argues that the trial court should have admitted, 

during the sentencing phase of the trial, evidence relating to 

the effect of incarceration on her mental health and concerning 

her need for alternative treatment. In determining what 

evidence should be considered by a sentencing jury, a trial 

court should be guided by the cases decided under Code 

§ 19.2-264.4, the corresponding statute for capital murder 

cases. See Commonwealth v. Shifflett, 257 Va. 34, 44, 510 

S.E.2d 232, 236 (1999). Code § 19.2-264.4 states, in relevant 

part, 

[e]vidence which may be admissible . . . may 

include the circumstances surrounding the 

offense, the history and background of the 

defendant, and any other facts in mitigation 

of the offense. 

"[D]iscretion is vested in the trial court to determine, subject 

to the rules of evidence governing admissibility, the evidence 

which may be adduced in mitigation of the offense." Coppola v. 

Commonwealth, 220 Va. 243, 253, 257 S.E.2d 797, 804 (1979). 

 During the sentencing phase of the trial, the trial court 

allowed Runyon to introduce evidence regarding her diagnosis and 

the effects of her various mental disorders. It excluded 

testimony concerning the effect of incarceration on Runyon. 

Such testimony would not have been evidence of circumstances 

mitigating the crime. It would have addressed dispositions 

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alternative to incarceration or appropriate treatment for Runyon 

as a confined inmate, neither of which were matters properly 

before the jury. The trial court did not err in rejecting this 

testimony. The jury's duty was to recommend sentence, not to 

consider alternative forms of punishment or sentence reduction. 

See Code § 19.2-295. See also Jones v. Commonwealth, 194 Va. 

273, 279, 72 S.E.2d 693, 696 (1952). 

II. Suspension of the Sentence 

 Runyon contends that the trial court erred in refusing to 

suspend all or part of her sentence. She argues that the trial 

court ignored the sentencing guidelines, which suggested a 

period of probation and no incarceration, and, ignoring 

mitigating circumstances, erroneously refused to consider 

variation from the sentence fixed by the jury. 

 "[W]hen a statute prescribes a maximum imprisonment penalty 

and the sentence does not exceed that maximum, the sentence will 

not be overturned as being an abuse of discretion." Abdo v. 

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). The 

sentencing guidelines are advisory only and do not require trial 

courts to impose specific sentences. See Robinson v. 

Commonwealth, 13 Va. App. 540, 542, 413 S.E.2d 661, 662 (1992). 

Even though the trial court provided no written explanation for 

its departure from the sentencing guidelines, "the failure to 

follow any or all of the provisions [of Code § 19.2-298.01] in 

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the prescribed manner shall not be reviewable on appeal . . . ." 

Code § 19.2-298.01(F). 

 At the sentencing hearing, the trial court heard testimony 

from Dr. Hill and others concerning the severity of Runyon's 

condition, the effects that confinement could have on her, and 

as to alternative dispositions, such as supervised psychiatric 

treatment while under probation. After hearing argument, the 

trial court stated: 

Counsel are aware this Court did not try the 

defendant. She put her fate in the hands of 

a jury of her peers. . . . If the defendant 

wished the sentencing Court and wished the 

sentencing authority here to know what else 

was available, then perhaps she should have 

put her faith in the hands of the Court. 

Runyon argues that by these comments, the trial court evinced 

its belief that it was bound by the jury verdict and its 

unwillingness to consider imposing a sentence that varied from 

the sentence fixed by the jury. However, the trial court also 

stated: 

The Court heard the evidence, as did the 

fact-finder. And, the Court cannot and has 

not disagreed with that verdict. The Court, 

obviously, is abundantly aware of all the 

dispositions and of all remedies available 

to this Court for extra conditions; that is, 

to say the matter in which the doctors here 

have suggested. . . . The Court has 

observed the defendant and has listened 

attentively to all the testimony about her 

condition and past conditions. 

 - 5 - 
 In Duncan v. Commonwealth, 2 Va. App. 342, 343 S.E.2d 392 

(1986), we discussed the effect to be given by a trial court to 

the sentence fixed in a jury verdict. 

Under the statutory scheme, the jury 

determines the guilt or innocence of the 

accused. If the jury finds that he is 

guilty, it then "ascertains" or "fixes" the 

maximum punishment in accordance with 

contemporary community values and within the 

limits established by law. 

Id. at 345, 343 S.E.2d at 394. 

"[T]he punishment as fixed by the jury is 

not final or absolute, since its finding on 

the proper punishment is subject to 

suspension by the trial judge, in whole or 

in part, on the basis of any mitigating 

facts that the convicted defendant can 

marshal. The verdict of the jury is the 

fixing of maximum punishment which may be 

served. Under such practice, the convicted 

criminal defendant is entitled to 'two 

decisions' on the sentence, one by the jury 

and the other by the trial judge in the 

exercise of his statutory right to suspend; 

his 'ultimate sentence . . . does not 

[therefore] rest with the jury' alone but is 

always subject to the control of the trial 

judge." 

Id. at 345, 343 S.E.2d at 394 (quoting Vines v. Muncy, 553 F.2d 

342, 349 (4th Cir.), cert. denied, 434 U.S. 851 (1977)). 

By vesting the trial court with 

discretionary authority to suspend or modify 

the sentence imposed by the jury, the 

legislature intended to leave the 

consideration of mitigating circumstances to 

the court. It is the court that has the 

responsibility of pronouncing the sentence 

after the maximum punishment is fixed by the 

jury. 

Id. at 345, 343 S.E.2d at 394. 

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 The trial court's duty required it to consider the sentence 

recommended by the jury in the light of the relevant factors and 

circumstances proved by the evidence and to impose the sentence 

that, in the exercise of its sound discretion, it determined to 

be just. We find no basis on which to conclude that the trial 

court did not discharge that duty properly. The trial court 

heard the evidence submitted by the parties. In addition to its 

remarks from the bench, it stated in its sentencing order: 

The defendant by counsel, moved the Court to 

suspend the sentence imposed and place the 

defendant on probation. After hearing 

testimony by the defendant, argument of 

counsel and after mature consideration of 

all the facts herein, the Court denied the 

motion for probation. 

 The judgment of the trial court is affirmed. 

 Affirmed.

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