COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Bumgardner
Argued at Richmond, Virginia

HERMAN WALTER MOORE, JR.,
A/K/A "CAB," "CUBBY"
OPINION BY
v. Record No. 1419-97-2 JUDGE LARRY G. ELDER
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HANOVER COUNTY
James M. Lumpkin, Judge Designate

Andrea C. Long (Boone, Beale, Cosby & Long,
on brief), for appellant.

Kathleen B. Martin, Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.

Herman Walter Moore, Jr. (appellant) appeals the sentence
imposed by the trial court following his convictions of
possession of marijuana with intent to distribute, possession of
cocaine with intent to distribute, and possession of cocaine
while simultaneously possessing a firearm. He contends the trial
court erred when it (1) sentenced him for possession of cocaine
while simultaneously possessing a firearm based on the assumption
that he was convicted under Code 18.2-308.4(B) rather than Code
18.2-308.4(A) and (2) ordered that his sentences for the
firearm conviction and the cocaine conviction run consecutively.
For the reasons that follow, we reverse in part, vacate in part,
and remand. I.
FACTS
On January 21, 1997, a grand jury indicted appellant for
possession of marijuana with intent to distribute (marijuana
charge), possession of cocaine with intent to distribute (cocaine
charge), and possession of cocaine while simultaneously
possessing a firearm (firearm charge). The indictment for the
firearm charge alleged that appellant
did unlawfully and feloniously have in his
possession or have under his control a
certain drug, to-wit: Cocaine, a Schedule II
controlled substance, and simultaneously with
knowledge and intent did possess a firearm[]
against the peace and dignity of the
Commonwealth of Virginia. 18.2-308.4
On March 11, 1997, appellant was tried by the trial court
and convicted of all three charges. The trial court's order
regarding the conviction of the firearm charge stated that
appellant was found guilty of "unlawfully and feloniously
[possessing] a certain drug, to-wit: Cocaine, a Schedule II
controlled substance, and simultaneously with knowledge and
intent did possess a firearm, in violation of Virginia Code
18.2-308.4, as charged in [the] indictment . . . ." (Emphasis
added). The trial court ordered the preparation of a presentence
report and scheduled a hearing to sentence appellant on May 19,
1997.
A sentencing hearing was held on May 19. During the
hearing, the Commonwealth introduced a "sentencing guidelines
recommendation" prepared by a probation officer. The sentencing
judge, who was not the judge who presided over appellant's trial,
stated that he "assume[d]" that appellant was convicted of
violating Code 18.2-308.4(B). A first violation of Code
18.2-308.4(B) carries with it a mandatory, non-suspendable
prison sentence of three years. When the probation officer
stated that she had calculated appellant's sentence under the
guidelines based on her impression that appellant was convicted
of violating Code 18.2-308.4(A), the sentencing judge ordered
her to reapply the guidelines by assuming that the firearm
conviction was under Code 18.2-308.4(B). The application of
the guidelines based on this change caused appellant's
recommended sentence to increase from a range of "ten months to
one year and eleven months" with a midpoint of one year and nine
months to a range of "three years to three years" with a midpoint
of three years. Over appellant's objection, the sentencing judge
sentenced him to serve prison sentences of three years for the
firearm conviction and ten years with eight years suspended for
the cocaine conviction. Also over appellant's objection, the
sentencing judge ordered the two sentences to run consecutively.
The sentencing judge suspended the imposition of any sentence for
the marijuana conviction.
II.
SENTENCE FOR THE FIREARM CONVICTION
Appellant contends the sentence imposed by the sentencing
judge for the firearm conviction was erroneous because the
sentencing judge ordered the reapplication of the sentencing
guidelines and sentenced appellant based on the faulty assumption
that appellant was convicted under Code 18.2-308.4(B). We
agree.
It is axiomatic that a convicted criminal defendant must be
sentenced according to the range of punishments authorized for
the crime of which he was convicted. See Code 19.2-295
(stating that the jury or trial court shall ascertain a convicted
defendant's punishment "within the limits prescribed by law");
cf. Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11
(1989) (stating that "manifest injustice results when a person is
sentenced for a crime other than that for which he was
convicted").
Subsections (A) and (B) of Code 18.2-308.4 constitute
separate grades of a criminal offense, each of which carries its
own distinct punishment. Under Code 18.2-308.4(A), it is
unlawful to possess a firearm while simultaneously possessing a
controlled substance "classified in Schedule I or II of the Drug
Control Act." A violation of Code 18.2-308.4(A) is punishable
as a Class 6 felony. See Code 18.2-308.4(A). Subsection (A)
does not mandate a particular term of incarceration or limit a
sentencing court's discretion either to suspend the sentence it
imposes or to order the sentence to run concurrently with jail
time imposed for other offenses. See Code 18.2-308.4(A).
Under Code 18.2-308.4(B), it is unlawful to possess a firearm
while simultaneously possessing with intent to distribute a
controlled substance "classified in Schedule I or II of the Drug
Control Act." A violation of subsection (B) is a "separate and
distinct felony" that is punishable by a mandatory "term of
imprisonment of three years for a first conviction and for a term
of five years for a second or subsequent conviction." Code
18.2-308.4(B). Significantly, the three-year prison sentence
mandated by subsection (B) may not be suspended by a sentencing
court and is required to run consecutively with the punishment
received "for the commission of the primary felony." Code
18.2-308.4(B). Thus, if appellant was charged with and
convicted of violating Code 18.2-308.4(A), then it was error
for the sentencing judge to sentence him as if he were convicted
of violating subsection (B).
We hold that the sentencing judge erred when he assumed
appellant was convicted of violating Code 18.2-308.4(B).
Instead, the language of the trial court's conviction order and
the grand jury's indictment establishes that appellant was
charged with and convicted of violating Code 18.2-308.4(A).
Appellant could not have been convicted of violating Code
18.2-308.4(B) because he was not charged with violating this
subsection. When considering on appeal whether an indictment
charged a particular offense, we limit our scrutiny to the face
of the document. When a statute, such as Code 18.2-308.4,
"contains more than one grade of an offense and each grade
carries a different punishment[,] the indictment must contain an
assertion of the facts essential to the punishment sought to be
imposed." Hall v. Commonwealth, 8 Va. App. 350, 352, 381 S.E.2d
512, 513 (1989).
Based on our review of the face of indictment No. CR97-19-02
and the text of Code 18.2-308.4, we conclude that the
indictment only charged appellant of violating subsection (A) of
that code section. The indictment neither makes direct reference
to subsection (B) nor alleges all of the material facts necessary
to constitute a violation of that subsection. Specifically, the
indictment does not allege that appellant had "the intent to
manufacture, sell, or distribute" the cocaine he possessed while
simultaneously possessing a firearm. Code 18.2-308.4(B).
Moreover, the language of the indictment is nearly identical to
the text of subsection (A). See Code 18.2-308.4(A). Even if
the grand jury intended to charge appellant with violating
subsection (B), the language of the indictment was inadequate to
provide appellant with notice of this charge.
The Commonwealth argues that because appellant was charged
with possession of cocaine "with intent to distribute," that he
should have known he was charged under Code 18.2-308.4(B).
However, this argument overlooks the principle that the charge
set forth in an indictment must be apparent from the face of the
document. None of the information that is essential to provide
an accused with adequate notice of a particular charge can be
added to an indictment by speculating, after the fact, about the
possible intention of the writer of the instrument. As this
Court has stated in response to a similar argument, "[t]he
defendant cannot be expected to have assumed that he was charged
with the greater of the two offenses unless it was expressly
charged in the indictment." Hall, 8 Va. App. at 352, 381 S.E.2d
at 513. We cannot say without disregarding the express language
of the indictment and resorting to inference or surmise that the
indictment in question was intended to charge appellant of
violating Code 18.2-308.4(B).
Because the trial court stated that it found appellant
guilty of violating Code 18.2-308.4 "as charged in [the]
indictment" and the indictment only charged appellant with
violating Code 18.2-308.4(A), the sentencing judge erred when
he sentenced appellant based on a violation of Code
18.2-308.4(B). We cannot say this error was harmless because
it is unclear from the record what the sentence would have been
but for the trial judge's faulty assumption.
III.
CONSECUTIVE PRISON SENTENCES
Appellant also contends the sentencing judge erred when he
ordered appellant's prison sentences for the firearm conviction
and the cocaine conviction to run consecutively. We conclude
that the sentencing judge's faulty assumption that appellant was
convicted of violating Code 18.2-308.4(B) necessitates that we
vacate his decision to order consecutive sentences.
Generally, a sentencing court has discretion under Code
19.2-308 to order multiple prison sentences to run
concurrently. See Wood v. Commonwealth, 12 Va. App. 1257, 1259,
408 S.E.2d 568, 569 (1991). However, the sentencing court lacks
this discretion when sentencing a defendant who stands convicted
of violating Code 18.2-308.4(B). Code 18.2-308.4(B)
expressly requires that any prison term imposed for a violation
of that subsection run consecutively with the prison sentence
that is imposed for the primary felony. Code 18.2-308.4(A), on
the other hand, does not limit the sentencing court's discretion
in this way. Because we cannot say the sentencing judge's
assumption that appellant was convicted of violating Code
18.2-308.4(B) did not affect his decision to order appellant's
prison sentences to run consecutively rather than concurrently,
the trial court shall reconsider this issue following its
resentencing of appellant for the firearm conviction.
For the foregoing reasons, we reverse the sentence imposed
upon appellant for his conviction of possession of cocaine while
simultaneously possessing a firearm in violation of Code
18.2-308.4(A) and vacate the sentencing judge's order requiring
appellant's prison sentences to run consecutively. We remand
this case to the trial court for further proceedings consistent
with this opinion.

Reversed in part,
vacated in part,
and remanded.

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