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Botkin v. Commonwealth

Supreme Court of Virginia

November 1, 2018

SHAWN LYNN BOTKIN
v.
COMMONWEALTH OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey and McCullough, JJ., and Millette, S.J.

          OPINION

          S. BERNARD GOODWYN JUSTICE

         FROM THE COURT OF APPEALS OF VIRGINIA In this appeal of a judgment from the Court of Appeals, we consider whether the Court of Appeals erred when it held that multiple mandatory minimum terms of imprisonment, imposed for multiple convictions under Code § 18.2-308.2(A), are required to be served consecutively.

         Background

         On August 1, 2016, Botkin was indicted by a grand jury of the Circuit Court of Scott County, for two counts of possession of a firearm within ten years of having been convicted of a felony, in violation of Code § 18.2-308.2(A). Botkin's possessions were alleged to have occurred on two separate occasions in November 2015. Botkin pled guilty to both charges and the circuit court held a sentencing hearing.

         During the sentencing hearing, the Commonwealth argued that under Code § 18.2-308.2(A), each of Botkin's convictions was subject to a mandatory minimum sentence of two years, and that each of those mandatory sentences was required to run consecutively with any other sentence, including each other. Botkin disagreed and argued that Code § 18.2-308.2(A) allowed the two mandatory minimum sentences imposed under that statute to run concurrently with each other.

          On March 16, 2017, the circuit court entered an order sentencing Botkin to five years for each violation of Code § 18.2-308.2(A), with three years suspended on each sentence. The circuit court ordered that the sentences run concurrently.

         The Commonwealth appealed the concurrent sentences to the Court of Appeals, which reversed the ruling of the circuit court. In a published opinion, Commonwealth v. Botkin, 68 Va.App. 177 (2017), the Court of Appeals held that

the trial court erred in ordering that the sentences for Botkin's two convictions under Code § 18.2-308.2 run concurrently. Accordingly, we reverse the judgment of the circuit court insofar as it imposes concurrent sentences, vacate the portion of the order that so provides, and remand for sentencing in conformity with this opinion. See Graves v. Commonwealth, 294 Va. 196, 221 (2017).

Id. at 182.

         Botkin appeals. This Court granted two assignments of error:

1. The Court of Appeals erred when it confined its interpretation of language in Virginia Code § 18.2-308.2(A) to the phrase "shall be served consecutively with any other sentence," instead of the entire sentence which reads, "The mandatory minimum term of imprisonment prescribed for violation of this section shall be served consecutively with any other sentence."
2. The Court of Appeals erred when it held this case should be remanded to the circuit court "for sentencing in conformity with [its] opinion," based on Graves v. Commonwealth, 294 Va. 196, 805 S.E.2d 226 (2017), ...

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