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
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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).
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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,
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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
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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
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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.”).
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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
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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
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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.
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