Sarah Margaret Runyon, s/k/a, et al. v CW

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.
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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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