Pete Antonio Sumner v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia
PETE ANTONIO SUMNER
MEMORANDUM OPINION* BY
v. 	Record No. 2800-99-1 	JUDGE JAMES W. BENTON, JR.
NOVEMBER 14, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dean W. Sword, Jr., Judge
S. Jane Chittom (Public Defender Commission,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Pete Antonio Sumner contends the trial judge erred in
sentencing him to eleven years in prison for a robbery conviction
after the trial judge had initially sentenced him to nine years in
prison for the same conviction. 	For the reasons that follow, we
affirm the conviction.
I.
The record establishes that Sumner was arrested by warrants
charging him with "rob[bery]" and "us[ing] a firearm in a
threatening manner while committing [robbery]." 	A grand jury
later indicted him for robbery, in violation of Code § 18.2-58,

and use of a firearm while committing robbery, in violation of
Code § 18.2-53.1. 	At the conclusion of the evidence at trial, the
judge convicted Sumner of "Robbery and Use of a Firearm as charged
in the indictment." 	At the sentencing hearing, the trial judge
stated the following in response to Sumner's counsel's argument
for a lenient sentence:
[T]he general assembly doesn't allow
probation when someone has been convicted of
the use of a firearm. 	This as long as I can
tell would be his first offense, but that in
itself carries a mandatory three-year
sentence irrespective of the other things.
Following Sumner's exercise of his right of allocution and
request for leniency, the trial judge pronounced sentence, which
included the following:
[H]aving found you guilty [of] . . . robbery
and use of a firearm in the commission of a
felony, I sentence you to [fourteen] years
in a . . . state correctional facility.
None of the time is to be suspended. 	It's a
[fourteen] year sentence."
After the judge had announced the sentence, the prosecutor said,
"your Honor, I would note that it appears that this is
[Sumner's] second firearm violation." 	The trial judge
responded, "He is charged under a joint indictment. 	If it is
his second one, then of course that would require a mandatory
five-year sentence, but I think the [fourteen] years covers it."
The trial judge later entered an order stating a "term of:
9 years for Robbery and 5 years for Use of a Firearm. 	The total
sentence imposed is 14 years." 	Within twenty-one days of entry
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of the order, Sumner's counsel objected on the grounds that
"(1) the order sets forth sentences and terms other than what
was pronounced in open court . . . ; (2) the [five] year
sentence . . . for use of firearm exceeds the permissible
sentence for a first offense; and (3) these changes . . . were
made . . . without notice, consent, or presence of [Sumner] or
his counsel." 	The trial judge timely suspended the sentencing
order and held a hearing. 	During that hearing, the prosecutor
conceded this was Sumner's first conviction for using a firearm.
The trial judge said his original "intention at the time was to
sentence [Sumner] to 14 years." 	The judge then sentenced Sumner
to "[eleven] years for robbery and three years for the firearm
charge." 	Sumner's counsel objected. 	This appeal arises from
the final order imposing that sentence.
II.
Citing North Carolina v. Pearce, 395 U.S. 711 (1969),
Sumner argues that the trial judge erred by imposing a higher
sentence at the second sentencing proceeding. 	Sumner concedes
the obvious fact that the trial judge had the power to vacate
the initial sentencing order and that he did so within
twenty-one days of entry of the order. 	See Rule 1:1. 	He
argues, however, that the final sentencing order unlawfully
enhances the robbery conviction from nine years to eleven years.
We disagree.
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The trial judge said his original "intention was to try to
comply with the [voluntary sentencing] guidelines, which were
[fourteen] years, and . . . [he was] breaking [the sentence] out
to deal with it as a statutory requirement." 	He also said he
"made a technical error in the drafting of the [first
sentencing] order." 	In modifying the initial order, the trial
judge stated that he was not enhancing Sumner's sentence. 	The
record supports all these rulings.
The record clearly establishes that Sumner was tried and
convicted on an indictment that charged use of a firearm in the
commission of robbery. 	No evidence at trial or at the
sentencing hearing was offered to prove this was a second
offense. 	Indeed, when the probation officer testified at the
sentencing hearing, she gave no indication that in computing the
sentencing guideline recommendation she used as a factor a prior
conviction for use of a firearm. 	In sentencing Sumner, the
trial judge accepted that guideline report and merely announced
the fourteen-year sentence as an aggregate.
Although the prosecutor erroneously said "this is
[Sumner's] second firearm violation" and sought to have the
trial judge increase the sentence, the trial judge clearly and
unmistakably refused to do so, stating that "I think [fourteen]
years covers it." 	Clearly, the judge did not then modify the
sentence. 	Instead, he imposed the sentence based upon his view
of the guidelines' recommendation.
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Although the trial judge entered a sentencing order that
delineated the sentences based upon the erroneous representation
by the prosecutor, the trial judge corrected the order without
increasing the total sentence, which he had decided upon before
the prosecutor's erroneous representation. 	Absent any evidence
in the record of a prior firearm conviction, the trial judge did
not err in ruling that the original sentencing order's erroneous
delineation of the two sentences was a correctable, clerical
error.
For these reasons, we affirm the conviction.
Affirmed.
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