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Commonwealth v. Botkin

Court of Appeals of Virginia

October 24, 2017

COMMONWEALTH OF VIRGINIA
v.
SHAWN LYNN BOTKIN

         FROM THE CIRCUIT COURT OF SCOTT COUNTY Jeffrey S. Hamilton, Judge.

          Stephen L. Forster, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellant.

          Helen E. Phillips (Phillips & Thomas Law, PLLC, on brief), for appellee.

          Present: Judges Petty, Beales and O'Brien Argued at Lexington, Virginia.

          OPINION

          WILLIAM G. PETTY JUDGE.

         Pursuant to Code § 19.2-398(C), [1] the Commonwealth appeals the sentence the trial court imposed upon Shawn Lynn Botkin after he pled guilty to two counts of possession of a firearm by a convicted nonviolent felon, in violation of Code § 18.2-308.2(A). The Commonwealth contends that the trial court erred in running the sentences for Botkin's two convictions concurrently when by statute the trial court was mandated to run the sentences consecutively. We agree with the Commonwealth. We reverse the trial court insofar as it imposed a concurrent sentence, vacate that portion of the sentence, and remand for sentencing consistent with this opinion.

         Background[2]

         Botkin pled guilty to two counts of possession of a firearm by a nonviolent felon, in violation of Code § 18.2-308.2(A). Code § 18.2-308.2(A) requires,

Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.

(Emphasis added).

         The trial court sentenced Botkin to five years for each conviction and suspended three years of each sentence. Botkin was thereby left with two active sentences of two years each in accordance with the mandatory minimums required by Code § 18.2-308.2(A). Botkin requested that the two sentences run concurrently, suggesting that the language of the statute would allow for that disposition. The Commonwealth argued that the language of the statute requires the two mandatory minimum sentences to run consecutively. The trial court ordered the two sentences to run "concurrent to each other"; the Commonwealth appealed.

         Analysis

         The issue before this Court is a question of statutory interpretation, which we review de novo. Brown v. Commonwealth, 284 Va. 538, 542, 733 S.E.2d 638, 640 (2012).

         The primary rule of statutory construction is quite clear. "When a statute is unambiguous, we must apply the plain meaning of that language." Altizer v. Commonwealth, 63 Va.App. 317, 323, 757 S.E.2d 565, 568 (2014) (quoting Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)). "If . . . the intention of the legislature is perfectly clear from the language used, rules of construction are not to be applied. We are not allowed to construe that which has no need of construction." Temple v. City of Petersburg, 182 Va. 418, 422-23, 29 S.E.2d 357, 358 (1944). "In such circumstances, a court may look only to the words of the statute to determine its meaning. The intention of the legislature must be determined from those words, unless a literal construction would result in a manifest absurdity." Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 339, 497 S.E.2d 335, 337 (1998). "[W]e will not apply 'an unreasonably restrictive interpretation of the statute' that would subvert the legislative intent expressed therein." Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)). Furthermore, "when one statute speaks to a subject in a general way and another deals with a part of the same ...


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