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Graves v. Commonwealth

Supreme Court of Virginia

October 12, 2017

ALPHONZO DORRELL GRAVES
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Judge

          OPINION

          STEPHEN R. McCULLOUGH JUSTICE.

         The Circuit Court of the City of Danville convicted Alphonzo D. Graves of, among other crimes, using a firearm in the commission of a felony, in violation of Code § 18.2-53.1. On July 6, 2007, the circuit court sentenced him to five years' imprisonment with two years suspended on this charge. Graves challenges this sentence, arguing that the trial court sentenced him in excess of the statutory maximum. We agree with his construction of the statute, as does the Commonwealth. Accordingly, we reverse the judgment of the circuit court insofar as it imposes a sentence exceeding the punishment authorized by the General Assembly in Code § 18.2-53.1, vacate the two year suspended sentence, and remand the case for entry of a new sentencing order in conformity with this opinion.[1]

         BACKGROUND

         Graves pled guilty to a number of charges in connection with a murder, including use of a firearm in the commission of a felony. In February 2016, he filed a motion to vacate his sentence for use of a firearm in the commission of a felony. He objected to the imposition of a five-year prison sentence, arguing that it exceeded the statutory maximum and was, therefore, void. The trial court denied that motion, as well as a motion to reconsider. This appeal followed.

         ANALYSIS

         We review a trial court's interpretation of a statute de novo. Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006).

         Code § 18.2-53.1 provides in relevant part:

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder . . . . Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.

         In Hines v. Commonwealth, 59 Va.App. 567, 721 S.E.2d 792 (2012), a divided panel of the Court of Appeals of Virginia held that the three-year "mandatory minimum" sentence in Code § 18.2-53.1 constitutes both the mandatory minimum and the mandatory maximum. Id. at 575-80, 721 S.E.2d at 795-98. Given the unique background of Code § 18.2-53.1, we agree with the Court of Appeals.

         I. Although Code § 18.2-53.1 does not specify a maximum sentence, Code §18.2-14 and legislative history answer the question of what constitutes a statutory maximum under this statute.

         A. Code § 18.2-53.1 is an anomaly.

         The Virginia Code employs two methods to assign a punishment for a crime. For many crimes, the offense is assigned a numbered "class" of felony or misdemeanor. There are six Classes of felonies and four Classes of misdemeanors, each of which provides a specifically defined punishment. See Code §§ 18.2-10, 18.2-11. For example, Class 6 felonies are punished with "a term of imprisonment of not less than one year nor more than five years, or . . . confinement in jail for not more than 12 months and a fine of not more than $2, 500, either or both." Code § 18.2-10(f); see, e.g., Code § 18.2-308.4 (unlawful possession of a controlled substance while "simultaneously with knowledge and intent possess[ing] any firearm . . . is a Class 6 felony."). Other crimes fall outside of this classification scheme. For such unclassified crimes, the statute itself specifies the range of punishment. See, e.g., Code § 18.2-95 (grand larceny is "punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years.").

         Code § 18.2-53.1 is anomalous because it neither assigns a particular Class of felony nor specifies a range of punishment within the text of the statute. The Code contains a multitude of statutes criminalizing some aspect or another of the possession or use of a firearm, and, with the exception of Code § 18.2-53.1, all of them specify a Class of felony or misdemeanor.[2] Furthermore, the Code contains 42 statutes that impose a mandatory minimum punishment. Except for Code § 18.2-53.1, each of the other 41 statutes either assigns a class to the offense or specifically establishes a maximum punishment, thereby establishing a defined range.[3]

         B. Code § 18.2-14 specifies that punishment is determined by resorting to the statutory text.

         Code § 18.2-14 provides that

Offenses defined in Title 18.2 and in other titles in the Code, for which punishment is prescribed without specification as to the class of the offense, shall be punished according to the punishment prescribed in the section or sections thus defining the offense.

         The command of Code § 18.2-14 is to look inwardly in interpreting Virginia sentencing provisions, to the text of the statute, rather than outwardly, to persuasive authority from other jurisdictions.

         Code § 18.2-53.1 does not specify a class of offense. According to the plain language of Code § 18.2-14, the crime should be punished "according to the punishment prescribed in the section or sections thus defining the offense." The punishment prescribed in Code § 18.2-53.1 is a minimum of three years for a first conviction and a minimum of five years for a second or subsequent conviction. The Court of Appeals put its finger on the interpretive dilemma when it noted that, on the one hand, "'mandatory minimum' suggests that the trial court has some discretion in imposing a sentence greater than the mandatory term of incarceration." Hines, 59 Va.App. at 575, 721 S.E.2d at 796. On the other hand, however, "application of Code § 18.2-14 would seem to indicate that the trial court may impose only a three or five-year term of incarceration." Id. at 576, 721 S.E.2d at 796. Given the ambiguity of the statute, we consult its legislative history to ascertain its meaning.

         C. Legislative history explains the anomalous language of Code § 18.2-53.1.

         Code § 18.2-53.1 does not specify a maximum sentence. To fill this lacuna and resolve the conundrum of legislative intent, we examine its legislative history. The predecessor statute to Code § 18.2-53.1 classified the offense as a Class 6 felony, and a second or subsequent offense as a Class 5 felony. 1975 Acts chs. 1296, 1299-1300. In 1976, the General Assembly substituted a fixed term of incarceration for the felony classifications, making the offense punishable by a one-year sentence for a first offense and three years for a second or subsequent offense. 1976 Acts ch. 430. The General Assembly also specified that "the sentence prescribed for a violation of the provisions of this section shall not be suspended in whole or in part." Id. This change, we recognized, had the effect of displacing "the wide range of discretionary penalties originally authorized" with "[i]nflexible penalties" of specific duration. Ansell v. Commonwealth, 219 Va. 759, 763, 250 S.E.2d 760, 762 (1979). The General Assembly later increased the sentences, but retained their character as fixed terms of incarceration. 1982 Acts ch. 1225; 1993 Acts ch. 1207.

         In 2001, the General Assembly tasked the Virginia State Crime Commission "to study the organization of and inconsistencies in Title 18.2 of the Code." H.J. Res. 687, Va. Gen. Assem. (Reg. Sess. 2001). The Crime Commission issued its report in 2004, proposing various recommendations and suggesting "amendments throughout the Virginia Code to use consistent language when describing mandatory minimum criminal sentences." Virginia State Crime Commission, Report to the Governor and General Assembly of Virginia: The Reorganization and Restructuring of Title 18.2, H. Doc. No. 15, at 5 (2004). The report noted that "[t]he Code of Virginia currently has inconsistent language for the concept of a mandatory minimum punishment." The Code contained such variations as "minimum mandatory;" "mandatory minimum;" "minimum, mandatory;" "none of which may be suspended;" sentence "shall not be subject to suspension;" and, that the sentence "shall not be subject to suspension in whole or in part." Id. at 37. The Commission proposed the adoption of a definition for "mandatory minimum punishment" as well as amending existing statutes to adopt uniform language. Id.

         Although the General Assembly did not adopt all of the recommendations contained in the Crime Commission's report, it did follow through on its suggestion to adopt a definition of "mandatory minimum punishment" and to adopt uniform language throughout the Code. 2004 Acts ch. 461, proposed as House Bill 1059. The legislation was introduced by a member of the Crime Commission. Other members of the Crime Commission also served as patrons of the bill. House Bill 1059 is attached as an exhibit to the Crime Commission's 2004 report.

         The bill established a definition of "mandatory minimum punishment, " now codified at Code § 18.2-12.1, and replaced the disparate descriptions of mandatory minimum sentences with the language recommended by the Crime Commission. For example, the General Assembly amended Code § 4.1-305, altering the language from "a fine of at least $500" to "a mandatory minimum fine of $500." 2004 Acts ch. 461, at 1. As another illustration, Code § 18.2-57 was changed in pertinent part from a term of incarceration, of which 30 days "shall not be suspended, in whole or in part" to read instead that the 30 days "shall be a mandatory minimum term of confinement." Id. at 3.

         The bill amended Code § 18.2-53.1 as follows:

It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate or animate object sexual penetration as defined in § 18.2-67.2, robbery, carjacking, burglary, malicious wounding as defined in § 18.2-51, malicious bodily injury to a law-enforcement officer as defined in § 18.2-51.1, aggravated malicious wounding as defined in § 18.2-51.2, malicious wounding by mob as defined in § 18.2-41 or abduction. Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and for to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section. Notwithstanding any other provision of law, the sentence prescribed for a violation of the provisions of this section shall not be suspended in whole or in part, nor shall anyone convicted hereunder be placed on probation. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony.

Id. at 674.

         This amendment and the insertion of the now standard language establishing a mandatory minimum sentence had the effect of displacing a fixed sentence without specifying a mandatory maximum. The amendments to Code § 18.2-53.1, however, are entirely in keeping with the other changes in the bill. The singular common thread throughout the entire bill is the adoption of a uniform style for prescribing mandatory minimum punishment.[4] None of the changes to the other statutes increased a penalty for a crime. This background reveals that the changes ...


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