Brown v. Commonwealth

• Court: Supreme Court of Virginia
• Decided: November 1, 2012
• Docket: 120112
• Status: Published

Opinion

Present: All the Justices

TIMOTHY A. BROWN OPINION BY v. Record No. 120112 JUSTICE S. BERNARD GOODWYN November 1, 2012 COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether multiple sentences

imposed pursuant to Code § 18.2-53.1 may be run concurrently.

Material Facts and Proceedings

Timothy A. Brown was charged in the Circuit Court of the

City of Richmond with three counts of robbery, three counts of

abduction and six counts of use or display of a firearm in the

commission of a felony. The charges stem from an armed robbery

of a marijuana dealer and two other individuals at the dealer’s

residence on May 24, 2010. Brown entered not guilty pleas to

all charges and waived a jury trial.

At the conclusion of the Commonwealth’s evidence, the

circuit court dismissed the three abduction charges and the

three counts of use or display of a firearm associated with

those charges. At the conclusion of the trial, the court found

Brown guilty of the three counts of robbery and three counts of

use or display of a firearm in committing those felonies.

At the sentencing hearing, Brown urged the circuit court

to exercise its discretion to run the mandatory minimum sentences on the use or display of a firearm charges

concurrently with each other. He argued that this was

justified in light of Brown’s record, which did not include any

previous felony convictions, and the fact that he was a

teenager. He also argued that it was justified because Brown’s

co-perpetrator, a five-time felon who was the much older

probable mastermind of the two, and who had, as conceded by the

Commonwealth, lied to the court, had received a lighter

sentence because he pled guilty in exchange for one of his use

or display of a firearm charges being dropped.

The circuit court stated that it preferred to run the

firearm sentences concurrently, but it felt compelled to run

them consecutively based upon Court of Appeals precedent. The

court stated, “[I]t goes against every grain of my body, having

heard from [Brown’s co-perpetrator]. But I will sentence

[Brown] to the mandatory minimum [sentences run consecutively],

because I feel like I have to do that.”

Brown appealed and a panel of the Court of Appeals denied

his petition. Brown appeals to this Court.

Analysis

Brown argues that the circuit court erred in ruling that

it lacked the authority to run the firearm sentences

concurrently with each other, and that the Court of Appeals

should not have denied his petition. Brown asserts that

2 neither the language of the use or display of a firearm statute

(Code § 18.2-53.1) nor the language of the mandatory minimum

sentencing statute (Code § 18.2-12.1) prohibits the sentences

imposed for such firearm charges from being run concurrently

with each other.

The Commonwealth argues that the Court of Appeals did not

err in denying Brown’s petition, and that Bullock v.

Commonwealth, 48 Va. App. 359, 631 S.E.2d 334 (2006), which

states that such sentences may not be run concurrently, id. at

378, 631 S.E.2d at 343, should be given stare decisis effect. ∗

The Commonwealth asserts that the General Assembly, in imposing

a mandatory minimum sentence for violation of the use or

display of a firearm in the commission of a felony statute,

intended to create inflexible penalties and “deter violent

crime.” It argues that sentences imposed for violation of the

use or display of a firearm statute must be run consecutively

with each other to give effect to the General Assembly’s

intent.

Generally, circuit courts have the authority to exercise

discretion to run sentences concurrently. See Code § 19.2-308.

However, this discretionary exercise of authority may be, and

∗ “[A] decision of a panel of the Court of Appeals becomes a predicate for application of the doctrine of stare decisis until overruled by a decision of the Court of Appeals sitting en banc or by a decision of this Court.” Johnson v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996).

3 has been proscribed by the General Assembly when it has

directed that sentences for certain crimes may not be run

concurrently. See, e.g., Code §§ 18.2-53.1, 18.2-255.2 and

18.2-308.1. The issue presented in this case is whether Code

§ 18.2-53.1 and/or Code § 18.2-12.1 prohibit a court from

running multiple sentences imposed under Code § 18.2-53.1

concurrently with each other.

Because the issue before this Court is one of statutory

interpretation, it is “a pure question of law which we review

de novo.” Kozmina v. Commonwealth, 281 Va. 347, 349, 706

S.E.2d 860, 862 (2011). In statutory interpretation, “[t]he

primary objective . . . is to ascertain and give effect to

legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395,

507 S.E.2d 608, 609 (1998). Thus, this Court construes a

statute “with reference to its subject matter, the object

sought to be attained, and the legislative purpose in enacting

it; the provisions should receive a construction that will

render it harmonious with that purpose rather than one which

will defeat it.” Esteban v. Commonwealth, 266 Va. 605, 609,

587 S.E.2d 523, 526 (2003). “[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,

4 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761,

250 S.E.2d 760, 761 (1979)).

Moreover, “[t]he plain, obvious, and rational meaning of a

statute is to be preferred over any curious, narrow, or

strained construction.” Meeks v. Commonwealth, 274 Va. 798,

802, 651 S.E.2d 637, 639 (2007) (quoting Zamani, 256 Va. at

395, 507 S.E.2d at 609). In addition, “penal statutes are to

be construed strictly against the [Commonwealth and] cannot be

extended by implication, or be made to include cases which are

not within the letter and spirit of the statute.” Wade v.

Commonwealth, 202 Va. 117, 122, 116 S.E.2d 99, 103 (1960).

If language is clear and unambiguous, there is no need for construction by the court; the plain meaning and intent of the enactment will be given it. When an enactment is clear and unequivocal, general rules for construction of statutes . . . do not apply. Therefore, when the language of an enactment is free from ambiguity, resort to legislative history and extrinsic facts is not permitted . . . .

Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)

(citations omitted).

Upon conviction under Code § 18.2-53.1, use or display of

a firearm in committing a felony,

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

5 punishment received for the commission of the primary felony.

The mandatory minimum term must be made to run consecutively

with any punishment received for the primary felony. The plain

language of the statute does not, however, require that any

sentence imposed pursuant to it be run consecutively with

punishment received for a crime other than the primary felony.

Thus, Code § 18.2-53.1 does not specifically prohibit multiple

sentences for use or display of a firearm from being run

concurrently with each other. We must examine whether Code

§ 18.2-12.1, which defines mandatory minimum sentences,

prevents the mandatory minimum sentences required by Code

§ 18.2-53.1 from being run concurrently with each other.

Code § 18.2-12.1 defines “[m]andatory minimum . . . for

the purposes of imposing punishment upon a person convicted of

a crime.” It states that “the court shall impose the entire

term of confinement, the full amount of the fine and the

complete requirement of community service prescribed by law.

The court shall not suspend in full or in part any punishment

described as mandatory minimum punishment.” Id.

Code § 18.2-12.1 prohibits a court from “suspending” or

imposing less than the “entire” term of confinement of a

mandatory minimum sentence. This Court has defined

“suspension” in these statutes to mean delaying the sentence or

6 actually and literally suspending it. In re Commonwealth, 229

Va. 159, 163, 326 S.E.2d 695, 698 (1985) (interpreting a prior

version of the statute, which the General Assembly changed in

form but not in substance). Neither the statutory language

prohibiting suspending the sentence nor the statutory mandate

to impose the “entire” sentence prohibits the imposed sentence

from being run concurrently with another sentence.

Further, it is a “settled principle of statutory

construction that every part of a statute is presumed to have

some effect and no part will be considered meaningless unless

absolutely necessary.” Hubbard v. Henrico Ltd. P’ship, 255 Va.

335, 340, 497 S.E.2d 335, 338 (1998). In this case, the

express language in Code § 18.2-53.1 stating that the sentence

shall be made to run consecutively with any punishment received

for the commission of the primary felony (i.e., not be run

concurrently with the primary felony) would be meaningless if

no mandatory minimum sentence can be run concurrently with any

other sentence. The language in the firearm statute requiring

sentences to be run consecutively with the punishment for the

primary sentence should not be interpreted as superfluous. See

Cook v. Commonwealth, 268 Va. 111, 114, 597 S.E.2d 84, 86

(2004) (“Words in a statute should be interpreted . . . to

avoid rendering words superfluous.”).

7 In other instances, the General Assembly has directed that

a mandatory minimum sentence not be run concurrently with any

other punishment. See Code § 18.2-255.2(B) (“Violation of this

[statute] shall constitute a separate and distinct felony

. . . .” A second conviction under the statute “shall be

punished by a mandatory minimum term of imprisonment of one

year to be served consecutively with any other sentence.”)

(emphasis added); Code § 18.2-308.1 (“If any person possesses

any firearm designed or intended to expel a projectile by

action of an explosion of a combustible material within a

[school], such person shall be . . . sentenced to a mandatory

minimum term of imprisonment . . . to be served consecutively

with any other sentence.”) (emphasis added). If it desired,

the legislature could have stated that sentences imposed

pursuant to Code § 18.2-53.1 may not be run concurrently with

any other punishment, but it did not.

It must be presumed that the legislature acted

deliberately in using different language in similar statutes,

and that judgment should be respected by the courts. When the

General Assembly uses two different terms, it is presumed the

terms are to mean two different things. See Forst v.

Rockingham Poultry Marketing Coop., Inc., 222 Va. 270, 278, 279

S.E.2d 400, 404 (1981); see also Halifax Corp. v. Wachovia

Bank, 268 Va. 641, 654, 604 S.E.2d 403, 408 (2004) (“[W]hen the

8 General Assembly includes specific language in one . . .

statute, but omits that language from another . . . statute,

[courts] must presume that the exclusion of the language was

intentional” because under these circumstances, it is evident

that the General Assembly “knows how” to include such language

in a statute to achieve an intended objective; thus the

“omission of [such] language [in another statute] represents an

unambiguous manifestation of a contrary intention.” (quoting

Halifax Corp. v Fist Union Nat’l Bank, 262 Va. 91, 100, 546

S.E.2d 696, 702 (2001))).

Conclusion

Accordingly, we hold that multiple sentences imposed

pursuant to Code § 18.2-53.1 may be run concurrently. We will

reverse the judgment appealed from and remand the case to the

Court of Appeals with direction to remand the same to the

circuit court for resentencing consistent with this opinion.

To the extent that the holding in Bullock is inconsistent with

the holding we express here, we overrule that portion of the

Court of Appeals’ decision.

Reversed and remanded.

JUSTICE MCCLANAHAN, with whom JUSTICE MIMS joins, dissenting.

To the extent a trial court allows a defendant

convicted under Code § 18.2-53.1 of three “separate and

distinct felon[ies]” to serve the mandatory terms of

9 confinement concurrently, “the entire term of

confinement” has not been “impose[d]” upon him for each

crime, as mandated by Code § 18.2-12.1. The purpose of

Code § 18.2-53.1 is “to deter violent criminal conduct

rather than to reform the most dangerous class of

criminals.” Ansel v. Commonwealth, 219 Va. 759, 763, 250

S.E.2d 760, 762 (1979). Read in conjunction with Code

§ 18.2-12.1, Code § 18.2-53.1 expressly requires courts

to “impose the entire term of confinement.” Code § 18.2-

12.1 (emphasis added). In construing these statutes, the

majority applies “ ‘an unreasonably restrictive

interpretation of the[m]’ [and] subvert[s] the

legislative intent expressed therein,” which we may not

do. Armstrong v. Commonwealth, 263 Va. 573, 581, 562

S.E.2d 139, 144 (2002)(quoting Ansel, 219 Va. at 761, 250

S.E.2d at 761). Therefore, I respectfully dissent.