Young v. Com.

PRESENT: All the Justices

GREGORY LEON YOUNG

v. Record No. 060473 OPINION BY JUSTICE BARBARA MILANO KEENAN
April 20, 2007
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in remanding a robbery conviction for a new sentencing

proceeding under Code § 19.2-295.1, rather than ordering a new

trial on all issues, based on the erroneous admission of

evidence of other crimes during the guilt phase of a defendant’s

trial.

Gregory Leon Young was tried by a jury in the Circuit Court

of the City of Danville for robbery, in violation of Code

§ 18.2-58. Young was convicted of the offense and sentenced, in

accordance with the jury verdict, to a term of life

imprisonment.1

Young chose to represent himself at his trial. The

evidence at trial showed that in January 2004, a robbery

occurred at “Check ‘n Go,” a check-cashing establishment in the

City of Danville (the Danville robbery).

1
In the same trial, Young also was convicted for use of a
firearm in the commission of a robbery, in violation of Code
§ 18.2-53.1. However, Young’s conviction for use of a firearm
is not before us in this appeal.

1
Shanna D. Jones was the sole cashier in the store when a man

entered and handed her a note that read, “I Have a Gun Give me

$2,100 you have 10 seconds.” The man produced a gun from inside

his coat and stated, “Just do what I say and you don’t get

hurt.” Jones gave the man $1,776, the entire contents of her

“money drawer.”

The Commonwealth offered into evidence several segments of

a video recording made of Young in the Henry County Sheriff’s

Office about one week after the Danville robbery. Young had

been taken into custody in Henry County for a separate bank

robbery that had occurred in the City of Martinsville (the

Martinsville robbery). While Young was in custody at the Henry

County Sheriff’s Office, City of Martinsville police officers

interviewed him for about three hours regarding the Martinsville

robbery. When the Martinsville police officers concluded their

interview, City of Danville police officers questioned Young for

an additional hour regarding the Danville robbery. Both

interviews were preserved on a video recording (the Henry County

interview). During the Henry County interview, Young confessed

that he committed the Danville robbery.

The Commonwealth informed the circuit court that the

Commonwealth did not intend to present to the jury any

statements in the Henry County interview that would be

inadmissible in evidence. The circuit court stated that it

2
would allow the Commonwealth to play the portions of the Henry

County interview relating to the Danville robbery, but ruled

that other portions of the video recording that were unrelated

to the Danville offenses would be inadmissible.

The Commonwealth showed the jury the portion of the Henry

County interview in which Young confessed to the Danville

robbery. The jury also was shown, however, some inadmissible

portions of the Henry County interview, including Young’s

statements concerning his purchase and use of illegal drugs, his

previous robbery charges, and his admission that he had

committed other robberies in the past.2

Young repeatedly objected to the introduction of any

statements he made in the Henry County interview concerning his

prior crimes and drug use. On three occasions, the circuit

court instructed the jury to disregard any evidence of Young’s

prior crimes or other acts that were not related to the Danville

robbery.

2
The jury was shown portions of the Henry County interview
in which Young mentioned a robbery that occurred in Henry
County, and in which he referred to the Danville robbery as
“this particular job.” At other points in the Henry County
interview, Young admitted that he had been involved in “some
more armed robberies,” stated that he had a “bad history” and
had made “several” mistakes, and began discussing a prior
robbery charge. The jury also was shown a portion of the Henry
County interview in which Young asked his interviewer, “[D]id
those guys really get me in Martinsville?” The jury also
observed Young stating that he used the proceeds of the Danville

3
 After the jury found Young guilty on the robbery charge,

the circuit court conducted a sentencing proceeding. At the

sentencing proceeding, the jury heard evidence presented by the

Commonwealth that Young previously had been convicted of armed

robbery, common law robbery, statutory burglary, “first degree”

burglary, breaking and entering, grand larceny, three other

felony convictions of larceny, and misdemeanor larceny.

Young appealed his conviction to the Court of Appeals,

which concluded that the circuit court erred in allowing the

jury to see the portions of the Henry County interview relating

to Young’s other crimes and drug use. However, the Court of

Appeals determined that the circuit court’s error was harmless

with respect to the issue of Young’s guilt because the evidence

of guilt was overwhelming. Young v. Commonwealth, 47 Va. App.

616, 633-35, 625 S.E.2d 691, 701-02 (2006).

The Court of Appeals further determined that the

presentation of Young’s statements in the Henry County interview

relating to the “Henry County offense,” for which Young had not

yet been convicted, and of the statements relating to Young’s

involvement with illegal drugs, introduced into evidence during

the guilt phase, did not constitute harmless error with regard

to the sentencing proceeding. The Court of Appeals held that

robbery to buy illegal drugs, and that his purpose in coming to
Henry County was “[f]or drugs.”

4
because this evidence would have been inadmissible in the

sentencing proceeding, its erroneous admission during the guilt

phase prejudiced Young in the jury’s determination of his

sentence. Id. at 637-38, 625 S.E.2d at 701-02.

The Court of Appeals affirmed Young’s conviction, but

remanded the case to the circuit court for a new sentencing

proceeding under Code § 19.2-295.1, which provides for such a

proceeding when a sentence is “set aside or found invalid solely

due to an error in the [original] sentencing proceeding.” Id.

The Court of Appeals concluded that because the error in the

guilt phase of the trial affected the sentencing proceeding but

was harmless with respect to the issue of Young’s guilt, the

sentence was invalid “solely due to an error in the sentencing

proceeding” within the meaning of Code § 19.2-295.1. Young

appeals from the Court of Appeals’ judgment.

Young contends that the Court of Appeals set his sentence

aside only because of evidentiary error during the guilt phase

of his trial, not because of an error “in the sentencing

proceeding.” Therefore, Young argues, the Court of Appeals

erred in ordering a new sentencing proceeding under Code § 19.2-

295.1, which only affords a remedy for errors that occur in the

sentencing phase of a trial. Young asserts that because the

evidentiary error occurred during the guilt phase of his trial,

his case should be remanded for a new trial on all issues.

5
 In response, the Commonwealth argues that the Court of

Appeals properly concluded that because the evidentiary error

was harmless with regard to the issue of Young’s guilt, the

error affected only the sentence imposed by the jury. Thus, the

Commonwealth contends that the erroneous admission of evidence

occurred “in the sentencing proceeding,” within the meaning of

Code § 19.2-295.1, and the Court of Appeals properly remanded

the case for a new sentencing proceeding under Code § 19.2-

295.1, rather than for a new trial on all issues. We disagree

with the Commonwealth’s arguments.

An issue of statutory interpretation presents a pure

question of law, which we review de novo on appeal. Conyers v.

Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639

S.E.2d 174, 178 (2007); Washington v. Commonwealth, 272 Va. 449,

455, 634 S.E.2d 310, 313 (2006); Ainslie v. Inman, 265 Va. 347,

352, 577 S.E.2d 246, 248 (2003). We determine the meaning of

certain statutory language from the express words contained in

the statute. Washington, 272 Va. at 255, 634 S.E.2d at 313;

Alger v. Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565

(2004); Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d 66,

68 (2004).

We consider the disputed language in the context of the

entire statute, rather than by isolating particular words or

phrases. Carpitcher v. Commonwealth, 273 Va. 335, 345, 641

6
S.E.2d 486, 492 (2007); Cummings v. Fulghum, 261 Va. 73, 77, 540

S.E.2d 494, 496 (2001); Earley v. Landsidle, 257 Va. 365, 369,

514 S.E.2d 153, 155 (1999). When statutory language is

unambiguous, we are bound by the plain meaning of that language

and may not give the words a construction that amounts to

holding that the General Assembly did not mean what it actually

stated. Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324,

327 (2006); Tucker, 268 Va. at 493, 604 S.E.2d at 68; Alger, 267

Va. at 259, 590 S.E.2d at 565.

The statute we examine in the present case, Code § 19.2-

295.1, provides in relevant part:

In cases of trial by jury, upon a finding that the
defendant is guilty of a felony . . . a separate proceeding
limited to the ascertainment of punishment shall be held as
soon as practicable before the same jury. At such
proceeding, the Commonwealth shall present the defendant’s
prior criminal convictions. . . . After the Commonwealth
has introduced such evidence of prior convictions, or if no
such evidence is introduced, the defendant may introduce
relevant, admissible evidence related to punishment. . . .
If the sentence imposed pursuant to this section is
subsequently set aside or found invalid solely due to an
error in the sentencing proceeding, the court shall impanel
a different jury to ascertain punishment. . . .

Id.

We conclude that this statutory language is plain and

unambiguous. The statute refers to the sentencing proceeding as

a “separate proceeding limited to the ascertainment of

punishment,” and specifies the evidence that the parties may

present “[a]t such proceeding.” Id. Thus, as set forth in the

7
statute, “the sentencing proceeding” is a distinct phase of a

criminal trial that follows a jury’s determination of a

defendant’s guilt. Accordingly, an error “in the sentencing

proceeding” can occur only after the jury determines the issue

of the defendant’s guilt and in the stage of the trial when the

jury considers the separate issue of the defendant’s punishment.

We find no support in the language of Code § 19.2-295.1 for

the Court of Appeals’ contrary interpretation, that any error

occurring during the guilt phase of a trial but affecting the

sentence a defendant receives, is an error “in the sentencing

proceeding.” That rationale would render any part of a criminal

trial, even the voir dire of potential jurors, a part of “the

sentencing proceeding” if jurors were exposed to inadmissible

evidence that may ultimately have affected the jury’s sentencing

decision.

We also must reject the Court of Appeals’ construction of

Code § 19.2-295.1 because that construction effectively would

require us to add language to the statute. The Court of

Appeals’ construction would require us to discount the

unambiguous phrase, “due to an error in the sentencing

proceeding” and effectively replace that language with the

phrase “due to an error affecting the sentencing proceeding.”

Such an interpretation of the statute would violate the basic

principle that courts cannot, by judicial interpretation, add

8
language to a statute that the General Assembly did not include

in its enactment. Washington, 272 Va. at 459, 634 S.E.2d at

316; Holsapple v. Commonwealth, 266 Va. 593, 599, 587 S.E.2d

561, 564-65 (2003); Burlile v. Commonwealth, 261 Va. 501, 511,

544 S.E.2d 360, 365 (2001).

In addition, we observe that we have ordered a new

sentencing proceeding under Code § 19.2-295.1 only when we have

reversed a judgment solely due to an error committed in the

sentencing phase of a trial. See, e.g., Gillespie v.

Commonwealth, 272 Va. 753, 761, 636 S.E.2d 430, 434 (2006)

(remand of statutory burglary conviction for new sentencing

proceeding because sentence imposed for prior offense and fact

of acquittal on other charge were erroneously admitted into

evidence in sentencing proceeding); Jaccard v. Commonwealth, 268

Va. 56, 59, 597 S.E.2d 30, 31 (2004) (remand of malicious

wounding conviction for new sentencing proceeding because jury

erroneously was informed in sentencing phase that defendant’s

prior probation status had been revoked); Hills v. Commonwealth,

262 Va. 807, 812, 553 S.E.2d 722, 725 (2001) (remand of rape

conviction for new sentencing proceeding because circuit court

failed to instruct jury in sentencing phase that parole had been

abolished in Virginia); Fishback v. Commonwealth, 260 Va. 104,

117, 532 S.E.2d 629, 635 (2000) (remand of eight felony

convictions for new sentencing proceeding because circuit court

9
failed to instruct jury in sentencing phase that parole had been

abolished in Virginia).

Here, because the improper evidence of other crimes was

presented during the guilt phase of Young’s criminal trial, not

in his sentencing proceeding, the remedy of a new sentencing

proceeding afforded by Code § 19.2-295.1 is inapplicable.3

Accordingly, we hold that the Court of Appeals erred in ordering

that Young’s case be remanded solely for a new sentencing

proceeding.

For these reasons, we will reverse the Court of Appeals’

judgment and remand the case to the Court of Appeals for further

remand to the circuit court for a new trial on the robbery

indictment, if the Commonwealth be so advised.

Reversed and remanded.

JUSTICE KINSER, with whom JUSTICE LEMONS and JUSTICE AGEE join,
dissenting.

The majority decides today that Gregory Leon Young, a

convicted armed robber, is entitled to a new opportunity to

adjudicate his guilt notwithstanding the finality of the Court

of Appeals’ conclusions that “the evidence of [Young’s] guilt

3
The Court of Appeals’ holding determining which items of
“other crimes” evidence resulted in prejudicial error is not
before us in this appeal. Therefore, we express no opinion
regarding which statements in the Henry County interview
resulted in prejudice to Young.

10
was overwhelming,” Young v. Commonwealth, 47 Va. App. 616, 636,

625 S.E.2d 691, 701 (2006), and that the error in his trial

prejudiced only the jury’s sentencing determination, not its

finding of guilt. Id. at 638, 625 S.E.2d at 702. In my view,

to disturb the conclusive effect of a jury’s valid determination

of guilt runs counter to the General Assembly’s manifest purpose

for creating a bifurcated jury-trial procedure for non-capital

felonies and Class 1 misdemeanors. Therefore, I respectfully

dissent.

The issue before us is whether the Court of Appeals erred

by ordering only a new sentencing proceeding under Code § 19.2-

295.1 instead of a new trial on the issues of both guilt and

sentencing. The relevant portion of Code § 19.2-295.1 states:

If the sentence imposed pursuant to this section
is subsequently set aside or found invalid solely due
to an error in the sentencing proceeding, the court
shall impanel a different jury to ascertain
punishment, unless the defendant, the attorney for the
Commonwealth and the court agree, in the manner
provided in [Code] § 19.2-257, that the court shall
fix punishment.

The majority “conclude[s] that this statutory language is plain

and unambiguous.” With respect to the phrase “solely due to an

error in the sentencing proceeding,” I disagree.

“Language is ambiguous if it admits of being understood in

more than one way, refers to two or more things simultaneously,

is difficult to comprehend, is of doubtful import, or lacks

11
clearness and definiteness.” Gillespie v. Commonwealth, 272 Va.

753, 758, 636 S.E.2d 430, 432 (2006) (citing Brown v. Lukhard,

229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)). Where the language

of an enactment is ambiguous, resort to the rules of statutory

construction is appropriate. Buonocore v. Chesapeake & Potomac

Tel. Co., 254 Va. 469, 472, 492 S.E.2d 439, 441 (1997) (citing

USAA Cas. Ins. Co. v. Alexander, 248 Va. 185, 194, 445 S.E.2d

145, 150 (1994); City of Virginia Beach v. Board of Supervisors,

246 Va. 233, 236, 435 S.E.2d 382, 384 (1993); Wertz v. Grubbs,

245 Va. 67, 70, 425 S.E.2d 500, 501 (1993)); Virginia Dep’t of

Labor & Indus. v. Westmoreland Coal Co., 233 Va. 97, 101−02, 353

S.E.2d 758, 762 (1987) (Where statutory language is ambiguous,

“we . . . must resort to extrinsic evidence and the rules of

construction to determine legislative intent, ‘the paramount

object of statutory construction.’ ”) (quoting Vollin v.

Arlington County Electoral Bd., 216 Va. 674, 678−79, 222 S.E.2d

793, 797 (1976)).

On its face, the text of Code § 19.2-295.1 is not clear

whether “an error in the sentencing proceeding” means, as the

majority concludes, a discrete act or occurrence that happens

between the temporal beginning and ending of a sentencing

proceeding, or the prejudicial impact such an event has on the

validity of the sentence imposed, irrespective of when it

temporally occurs. The majority dismisses the latter

12
interpretation, claiming that if we adopted it, we would be

impermissibly rewriting the pertinent provision of Code § 19.2-

295.1 to read, “due to an error affecting the sentencing

proceeding.” Yet, the majority engages in the very sort of

statutory revision that it claims to eschew when it effectively

replaces the enacted language with the phrase “due to an error

during the sentencing proceeding.” Thus, despite its claim that

the relevant text is unambiguous and its recitation of the plain

meaning rule, the majority engages in its own statutory

construction to reach the conclusion that Young is entitled to a

new trial on the robbery indictment.

Since the General Assembly’s use of the word “in” allows

the provision at issue to be “understood in more than one way,”

Gillespie, 272 Va. at 758, 636 S.E.2d at 432, resort to the

principles of statutory construction is appropriate in order to

decide the issue before us. See Buonocore, 254 Va. at 472, 492

S.E.2d at 441. “A statute must be construed 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)

(citing Stanley v. Tomlin, 143 Va. 187, 195, 129 S.E. 379, 382

(1925)); see also Bulala v. Boyd, 239 Va. 218, 227, 389 S.E.2d

13
670, 674 (1990) (“ ‘Every statute is to be read so as to promote

the ability of the enactment to remedy the mischief at which it

is directed.’ ”) (quoting Board of Supervisors v. King Land

Corp., 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989)).

Before the General Assembly’s enactment of Code § 19.2-

295.1 in 1994, see 1994 Acts chs. 828, 860, 862, 881, a jury

made its guilt and sentencing decisions for non-capital offenses

in an unitary proceeding, based solely on evidence relevant to

the charged offense and the statutory range of permissible

punishment. See Commonwealth v. Shifflett, 257 Va. 34, 42, 510

S.E.2d 232, 235 (1999); Auer v. Commonwealth, 46 Va. App. 637,

648, 621 S.E.2d 140, 145 (2005). With the enactment of that

statute and the resulting change to a bifurcated system for jury

trials of non-capital felonies and Class 1 misdemeanors, the

General Assembly advanced the laudable goal of “truth in

sentencing,” Fishback v. Commonwealth, 260 Va. 104, 113, 532

S.E.2d 629, 632 (2000), by expanding the scope of information

that a jury can receive in making its sentencing decision. With

the advent of two separate proceedings, one for the

determination of guilt and the other for the determination of an

appropriate sentence, the General Assembly recognized that an

error committed during an accused’s trial could conceivably

prejudice only a jury’s sentencing decision. Thus, one year

14
after the General Assembly first created the bifurcated system,

it added the provision now at issue. See 1995 Acts ch. 567.1

The entirety of Code § 19.2-295.1 is directed at post-

conviction sentencing proceedings. The contested language

directs that, when a sentence is “set aside or found invalid

solely due to an error in the sentencing proceeding,” the trial

court shall impanel a different jury to determine only

punishment. Code § 19.2-295.1 (emphasis added). The statute

does not address those instances when the basis for reversal is

an error in the determination of a defendant’s guilt. Nor

should it. When an error at trial requires the reversal of a

jury’s guilt determination and the award of a new trial, the

sentence imposed by that jury is necessarily also set aside.

But, as the General Assembly recognized, with separate

proceedings for determining guilt and sentencing, there is no

reason to set aside a jury’s guilt determination when an error

prejudices only its imposition of sentence. The majority’s

construction of Code § 19.2-295.1, however, renders this

distinction meaningless and is irreconcilable with that

1
In 1995, the relevant portion of Code § 19.2-295.1
provided, “If the sentence on appeal is subsequently set aside
or found invalid solely due to an error in the sentencing
proceeding, the court shall impanel a different jury to
ascertain punishment, unless the defendant, the attorney for the
Commonwealth and the court agree, in the manner provided in
§ 19.2-257, that the court shall fix punishment.” The General

15
statute’s express declaration that the penalty phase of a

bifurcated criminal trial is “a separate proceeding limited to

the ascertainment of punishment.”

The basis of the Court of Appeals’ decision to invalidate

Young’s life sentence was the prejudicial impact of the jurors’

knowledge of Young’s unadjudicated criminal conduct on their

sentencing decision. Young, 47 Va. App. at 638, 625 S.E.2d at

702. The Court of Appeals found no reversible error either in

the guilt phase alone, or in the guilt and sentencing

proceedings collectively. Id. “The only harm done was in

sentencing.” Id. at 638 n.10, 625 S.E.2d at 702 n.10. Thus,

the Court of Appeals set aside Young’s sentence “solely due to

an error in the sentencing proceeding.” The appropriate remedy

under such circumstances is to remand the case to the trial

court to “impanel a different jury to ascertain punishment.”

Code § 19.2-295.1. As the Court of Appeals appropriately noted,

“[t]o remand for a new trial would be a futile act.” Young, 47

Va. App. at 638 n.10, 625 S.E.2d at 702 n.10. It also would be

a waste of judicial resources.

Nevertheless, the majority opines that the Court of

Appeals’ “rationale would render any part of a criminal trial,

even the voir dire of potential jurors, a part of ‘the

Assembly amended the statute to its current version in 2001.
2001 Acts ch. 389.

16
sentencing proceeding’ if jurors were exposed to inadmissible

evidence that may ultimately have affected the jury’s sentencing

decision.” This concern, however, is misplaced because the

majority’s observation actually reflects how bifurcated trials

proceed. Jurors are not told to disregard all the evidence

heard during the guilt phase of a trial upon commencement of the

sentencing proceeding. Instead, all the evidence presented

during the guilt proceeding carries forward and is appropriately

considered by the jury during the penalty phase. Indeed, that

is precisely why the inadmissible evidence regarding Young’s

unadjudicated conduct, which was introduced during the guilt

phase, rendered the jury’s imposition of sentence invalid.

Otherwise, there would have been no error in the sentencing

proceeding.2

Accordingly, I respectfully dissent and would affirm the

judgment of the Court of Appeals remanding Young’s case for a

new sentencing proceeding only.

2
Citing Gillespie, 272 Va. at 761, 636 S.E.2d at 434,
Jaccard v. Commonwealth, 268 Va. 56, 59, 597 S.E.2d 30, 31
(2004), Hills v. Commonwealth, 262 Va. 807, 812, 553 S.E.2d 722,
725 (2001), and Fishback, 260 Va. at 117, 532 S.E.2d at 635, the
majority states “that we have ordered a new sentencing
proceeding under Code § 19.2-295.1 only when we have reversed a
judgment solely due to an error committed in the sentencing
phase of a trial.” (Emphasis added.) But, the issue before us
today is one of first impression.

17