Brian Christopher Daniels v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Senior Judges Hodges, Overton and
Retired Judge Stephens*
Argued at Chesapeake, Virginia
BRIAN CHRISTOPHER DANIELS
MEMORANDUM OPINION** BY
v. 	Record No. 1481-99-1 	JUDGE WILLIAM H. HODGES
JUNE 13, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Alan E. Rosenblatt, Judge
Theresa B. Berry (Berry, Ermlich, Lomax &
Meixel, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Upon his pleas of guilty, the circuit court convicted Brian
Christopher Daniels of robbery, abduction, and use of a firearm in
the commission of robbery. 	The court sentenced Daniels to
concurrent fifty-year sentences on the robbery and abduction
convictions and a three-year sentence on the firearm conviction.
On appeal, Daniels contends that the court erred in imposing these
sentences. 	For the reasons that follow, we affirm in part, and
vacate and remand in part.
* Retired Judge J. Warren Stephens took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
** Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.

Daniels' maximum exposure on the abduction conviction was ten
years. 	See Code §§ 18.2-10(e) and 18.2-47(A). 	Thus, the court
erred in sentencing appellant to fifty years on this conviction.
Accordingly, we vacate the fifty-year sentence on the abduction
conviction and remand this matter to the trial court for
resentencing. 	See Bell v. Commonwealth, 11 Va. App. 530, 534, 399
S.E.2d 450, 453 (1991).
We find no error in the sentences given Daniels on the
robbery and firearm convictions. 	"It is well settled that when
the maximum punishment is prescribed by statute, 'and the
sentence [imposed] does not exceed that maximum, the sentence
will not be overturned as being an abuse of discretion.'"
Valentine v. Commonwealth, 18 Va. App. 334, 339, 443 S.E.2d 445,
448 (1994) (quoting Abdo v. Commonwealth, 218 Va. 473, 479, 237
S.E.2d 900, 903 (1977)).
The sentences imposed by the trial court on these
convictions were within the ranges set by the legislature. 	See
Code §§ 18.2-53.1 and 18.2-58. 	It is within the trial court's
purview to weigh any mitigating factors presented by Daniels.
Accordingly, the court did not abuse its discretion in
sentencing Daniels on the robbery and firearm convictions.
Affirmed in part,
vacated and remanded
in part.
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