Brian David Luttrell v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Benton and Clements
Argued at Alexandria, Virginia
BRIAN DAVID LUTTRELL
OPINION BY
v. 	Record No. 2092-02-4 	JUDGE JAMES W. BENTON, JR.
FEBRUARY 17, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
David A. Downes for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Brian David Luttrell contends the trial judge violated his plea agreement by imposing a
sentence that was inconsistent with “the sentencing guidelines applicable at the time of the offense”
and further erred by applying an unreliable assessment instrument in fixing his sentence. We affirm
the conviction.
I.
A grand jury indicted Luttrell for carnal knowledge of a child thirteen years of age in
violation of Code § 18.2-63. Prior to trial, Luttrell and the Commonwealth entered into a written
plea agreement in which Luttrell agreed to tender a guilty plea as sanctioned by North Carolina v.
Alford, 400 U.S. 25 (1970). The agreement contained the following paragraph concerning
sentencing:
In consideration of Defendant’s plea, the Commonwealth
and the Defendant agree that the Defendant shall be sentenced
within the sentencing range of the applicable Virginia Sentencing
Guidelines. The parties do not agree on whether the Defendant
should be sentenced to the guidelines in effect at the time of the

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offense or at the time of sentencing and reserve the right to argue
for their respective positions. The Defendant reserves the right to
appeal the court’s interpretation of the applicable guidelines. An
adverse decision to the Defendant shall not void this agreement.
The trial judge accepted Luttrell’s plea and scheduled a sentencing hearing. Prior to the
sentencing hearing, Luttrell filed a memorandum in which he asserted that the discretionary
sentencing guidelines in effect at the time of the offense must be used at sentencing. Opposing
that position, the prosecutor contended that the guidelines in effect at the time of the sentencing
should be used because it provided for a sex offender risk assessment. The trial judge ruled prior
to sentencing that the applicable guidelines were those in effect at the time of sentencing and
“that the risk assessment worksheet included within those guidelines is not an invalid
instrument.” Applying those guidelines, the trial judge sentenced Luttrell to five years in prison,
suspending four years and four months upon various conditions, and ordered a fine of five
hundred dollars. This appeal challenges these rulings.
II.
When a punishment for a crime is fixed within the limitations established by the statute
governing the crime, the principle is well established and long standing in Virginia that appellate
courts have no power to set aside the sentencing verdict merely on the ground of abuse of the
discretionary power conferred by the legislature. See Perry v. Commonwealth, 208 Va. 283,
289, 156 S.E.2d 566, 571 (1967); Satterwhite v. Commonwealth, 201 Va. 478, 483, 111 S.E.2d
820, 824 (1960); McCann v. Commonwealth, 174 Va. 429, 448, 4 S.E.2d 768, 775 (1939);
Messer No. 2 v. Commonwealth, 145 Va. 872, 879, 134 S.E. 565, 567 (1926).
By statute the legislature has authorized a sentencing commission “to assist the judiciary
in the imposition of sentences by establishing a system of discretionary guidelines.” Code
§ 17.1-801. See Code § 17.1-800 et seq. A judge’s use of these discretionary guidelines is
governed by Code § 19.2-298.01, which provides, in pertinent part, as follows:

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A. In all felony cases, other than Class 1 felonies, the court shall
(i) have presented to it the appropriate discretionary sentencing
guidelines worksheets and (ii) review and consider the suitability
of the applicable discretionary sentencing guidelines established
pursuant to Chapter 8 (§ 17.1-800 et seq.) of Title 17.1. Before
imposing sentence, the court shall state for the record that such
review and consideration have been accomplished and shall make
the completed worksheets a part of the record of the case and open
for inspection. In cases tried by a jury, the jury shall not be
presented any information regarding sentencing guidelines.
B. In any felony case . . . in which the court imposes a sentence
which is either greater or less than that indicated by the
discretionary sentencing guidelines, the court shall file with the
record of the case a written explanation of such departure.
C. . . . In felony cases tried upon a plea of guilty, including cases
which are the subject of a plea agreement, the court shall direct a
probation officer of such court to prepare the discretionary
sentencing guidelines worksheets, or, with the concurrence of the
accused, the court and the attorney for the Commonwealth, the
worksheets shall be prepared by the attorney for the
Commonwealth.
* 	* 	* 	* 	* 	* 	*
E. Following the entry of a final order of conviction and sentence
in a felony case, the clerk of the circuit court in which the case was
tried shall cause a copy of such order or orders, the original of the
discretionary sentencing guidelines worksheets prepared in the
case, and a copy of any departure explanation prepared pursuant to
subsection B to be forwarded to the Virginia Criminal Sentencing
Commission within five days.
F. The failure to follow any or all of the provisions of this section
or the failure to follow any or all of the provisions of this section in
the prescribed manner shall not be reviewable on appeal or the
basis of any other post-conviction relief.
In a series of decisions, we have held that the recommended sentencing ranges contained in these
discretionary guidelines are not binding on the trial judge but, rather, are mere tools to be used
by the judge in fixing an appropriate sentence within the limitations established by the statute
governing punishment for the particular crime. Jett v. Commonwealth, 34 Va. App. 252, 256,
540 S.E.2d 511, 513 (2001); Hunt v. Commonwealth, 25 Va. App. 395, 404-05, 488 S.E.2d 672,

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677 (1997); Bell v. Commonwealth, 18 Va. App. 146, 149, 442 S.E.2d 427, 429 (1994); Belcher
v. Commonwealth, 17 Va. App. 44, 45, 435 S.E.2d 160, 161 (1993).
(A)
Luttrell contends that the trial judge violated his right to due process by applying the
guidelines in effect at the time of sentencing, which were more punitive than the guidelines in
effect when he committed the offense. We disagree.
We have previously addressed a circumstance in which “the trial judge . . . us[ed] the
Voluntary Sentencing Guidelines . . . in effect at the time of sentencing, rather than those in
effect at the time the crime was committed.” Belcher, 17 Va. App. at 45, 435 S.E.2d at 161. We
noted in Belcher that “the new guidelines permitted a harsher range of punishment,” id., and
“that the trial judge’s application of the new guidelines subjected [the defendant] to an increased
range of penalties.” Id. Despite those detriments, we held that “application of the guidelines,
either old or new, was voluntary” and that, in accordance with the general principles concerning
review of sentences in Virginia, “our review of the sentencing determination . . . is limited to
ascertaining whether the sentence falls within the range set by the legislature.” Id. We are
bound by this holding.
Luttrell correctly argues that Belcher did not address the issue of due process, and he
contends that Miller v. Florida, 482 U.S. 423 (1987), supports his due process claim. In holding
Florida’s law void as a violation of the ex post facto prohibition, the Supreme Court observed
that Florida’s sentencing guidelines, and all revisions to the guidelines, were legislatively
enacted. Id. at 425 (noting that “[t]he sentencing law provided . . . that . . . revisions [to the
guidelines] would become effective ‘only upon the subsequent adoption by the Legislature of
legislation implementing the guidelines as then revised’”). The Supreme Court also observed
that Florida’s sentencing guideline law required a judge who departed from a presumptive

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sentence range “to give clear and convincing reasons in writing for doing so” and subjected the
sentencing decision to “appellate review.” Id. at 426. Distinguishing Florida’s law from
administratively enacted guidelines such as the federal parole guidelines, the Supreme Court held
as follows:
We find the federal parole guidelines cases inapposite. The
courts that have upheld the retrospective application of federal
parole guidelines have articulated several reasons why the ex post
facto prohibition does not apply. The majority of these courts have
held that the federal parole guidelines are not “laws” for purposes
of the Ex Post Facto Clause. Other courts have found that the
guidelines merely rationalize the exercise of statutory discretion,
and that retrospective application of the guidelines thus does not
violate the Ex Post Facto Clause. Finally, some of the cases have
held that retrospective application of the guidelines does not result
in a more onerous punishment and thus does not constitute an ex
post facto violation.
None of the reasons given in the federal parole cases even
arguably applies here. First, the revised sentencing law is a law
enacted by the Florida Legislature, and it has the force and effect
of law. Nor do the revised guidelines simply provide flexible
“guideposts” for use in the exercise of discretion: instead, they
create a high hurdle that must be cleared before discretion can be
exercised, so that a sentencing judge may impose a departure
sentence only after first finding “clear and convincing reasons”
that are “credible,” “proven beyond a reasonable doubt,” and “not
. . . a factor which has already been weighed in arriving at a
presumptive sentence.” Finally, the revised guidelines directly and
adversely affect the sentence petitioner receives. Thus, this is not a
case where we can conclude . . . that “[t]he crime for which the
present defendant was indicted, the punishment prescribed
therefor, and the quantity or the degree of proof necessary to
establish his guilt, all remained unaffected by the subsequent
statute.”
Id. at 434-35 (citations omitted).
By contrast, the Virginia discretionary sentencing guidelines provide only flexible
guideposts for the trial judge to consider in determining the appropriate sentence within the range
of punishment defined by the legislature. Although the trial judge must provide a written
explanation for departure from the guidelines, see Code § 19.2-298.01(B), the judge is not bound

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by a presumptive range and need not justify the decision by any standard, let alone “clear and
convincing” evidence. The statute also precludes appellate review of the sentence. See Code
§ 19.2-298.01(F). Furthermore, the revision of the guidelines is left to the discretion of the
sentencing commission and does not require approval by the legislature.
As we have indicated, the discretionary guidelines are merely procedural tools to assist
and guide a judge in the exercise of the judge’s sentencing discretion. Because the guidelines
and revisions are not enacted by the legislature, they are more akin to the parole guidelines
described by the Supreme Court in Miller. Thus, we hold that the trial judge did not err in
finding no ex post facto law violation in the application of the guidelines.
(B)
Luttrell also contends that the Sex Offender Risk Assessment Instrument, which the
sentencing commission has incorporated into the sentencing guidelines, is unreliable in
predicting recidivism. Code § 19.2-298.01(F) provides, however, that a trial judge’s failure to
correctly apply the sentencing guidelines “shall not be reviewable on appeal or the basis of any
other post-conviction relief.” See Hunt, 25 Va. App. at 405, 488 S.E.2d at 677 (rejecting claim
that defendant’s sentence should be set aside due to misapplication of the sentencing guidelines).
In view of this broad statutory exemption from appeal, we hold that the trial judge’s
consideration of the assessment instrument as a factor in applying the discretionary sentencing
guidelines provides no basis for review of Luttrell’s sentence on appeal.
For these reasons, we affirm the conviction.
Affirmed.