COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Beales
Argued at Richmond, Virginia
ANDREW ROBERT ALSTON
OPINION BY
v. Record No. 0951-05-2 JUDGE RANDOLPH A. BEALES
DECEMBER 5, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
Edward L. Hogshire, Judge
S. Jane Chittom, Appellate Defender (Virginia Indigent Defense
Commission, on briefs), for appellant.
Stephen R. McCullough, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
A jury convicted Andrew Robert Alston (appellant) of voluntary manslaughter, a Class 5
felony, and fixed his punishment at three years of imprisonment. The trial court sentenced
appellant to serve the three years and added a three-year term of post-release supervision
pursuant to Code § 19.2-295.2. Appellant appeals this sentence, arguing that the addition of
post-release supervision violates his constitutional right to a jury, his constitutional due process
rights, runs counter to the principle of separation of powers, and contradicts the General Assembly’s
intent in enacting Code § 19.2-295.2. For the reasons expressed herein, we affirm appellant’s
sentence.
Appellant does not argue error occurred during the guilt phase of his trial. The alleged error
arose after the jury was excused, when the trial court imposed the three years of imprisonment fixed
by the jury and included three years of post-release supervision pursuant to Code § 19.2-295.2(A).
Therefore, we include only an abbreviated version of the underlying facts supporting the conviction.
On November 7, 2003, Walker Sisk met some friends in Charlottesville, and they spent
the evening going to several bars. James Schwab joined the group at some point during the
evening. At about 2:00 a.m., Sisk and Schwab saw William Fagley, who was across the street
with appellant, a University of Virginia student, and two other people. Sisk and Fagley started
yelling profanities at each other across the street. Sisk eventually crossed the street to where
Fagley’s group stood. Appellant and two other people in Fagley’s group attempted to defuse the
situation.
Sisk and Fagley continued their verbal exchange as they walked along the sidewalk with
the now-merged groups. Suddenly, witnesses noted that appellant appeared to begin punching
Sisk, and Sisk doubled over. The witnesses described the punching as odd, as if appellant had
keys in his hand. Sisk eventually fell to the ground.
Schwab came to Sisk’s defense and punched appellant. Someone then mentioned the
police, and several people, including appellant, ran. Schwab realized that Sisk was bleeding
badly, and he called the police.
The medical examiner testified that Sisk was stabbed approximately twenty times, with
wounds to his heart and to a lung causing his death. Appellant had a wound to his hand
consistent with stabbing someone.
The jury convicted appellant of voluntary manslaughter and fixed his sentence at three
years in the penitentiary. The trial court sentenced appellant to serve three years and added three
years of post-release supervision, pursuant to Code § 19.2-295.2(A).
Code § 19.2-295.2(A) reads, in relevant part:
At the time the court imposes sentence upon a conviction for any
felony offense . . . the court . . . shall, in addition to any other
punishment imposed if such other punishment includes an active
term of incarceration in a state or local correctional facility, except
in cases in which the court orders a suspended term of confinement
of at least six months, impose a term of postrelease supervision of
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not less than six months nor more than three years, as the court
may determine. Such additional term shall be suspended and the
defendant placed under postrelease supervision upon release from
the active term of incarceration. The period of supervision shall be
established by the court; however, such period shall not be less
than six months nor more than three years.
Although the final order here does not include a definite term of suspended confinement for a
violation of the terms of post-release supervision, appellant argues he could serve a total of six years
under the order – the sentence of three years fixed by the jury and an additional three years if he
violates the terms of the post-release supervision.1
The issues presented in this appeal do not involve questions of fact, but instead address
questions of law. Therefore, our standard of review here is de novo. See Gray v. Bourne, 46
Va. App. 11, 20, 614 S.E.2d 661, 665 (2005); Rollins v. Commonwealth, 37 Va. App. 73, 79, 554
S.E.2d 99, 102 (2001).
I. Right to a Jury
Appellant argues that the addition of post-release supervision violates his Sixth Amendment
right to a jury trial, as the jury fixed his sentence at three years. He contends that in Blakely v.
Washington, 542 U.S. 296 (2004), the Supreme Court held that a judge must sentence a defendant
as pronounced by the jury and cannot impose any additional sentence. We disagree with this
interpretation of Blakely.
The analysis in Blakely does not restrict sentencing to the number of years set by the
jury, but instead to the factual findings of the jury. Blakely’s sentence was unconstitutional
because the judge made factual findings that increased the maximum sentence, not simply
1
Code § 19.2-295.2 allows a court to suspend three years of confinement conditioned
upon post-release supervision. The final order includes only the length of the supervision, not a
specific term of suspended confinement. See Code § 18.2-10 (requiring a court, pursuant to
some conditions, to impose an additional sentence of six months to three years and suspend that
sentence as described in Code § 19.2-295.2).
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because the judge increased the sentence. As the Supreme Court explained, judges must
sentence “solely on the basis of the facts reflected in the jury verdict or admitted by the
defendant.” Id. at 303. The Court noted that Blakely pled guilty to second-degree kidnapping in
part to avoid a first-degree offense sentence, but the trial court’s independent fact-finding
essentially sentenced him as if he was convicted of a first-degree crime. Id. at 307. The Court
held:
Whether the judge’s authority to impose an enhanced sentence
depends on finding a specified fact (as in Apprendi [v. New Jersey,
530 U.S. 466 (2000)]), one of several specified facts (as in Ring [v.
Arizona, 536 U.S. 584 (2002)]), or any aggravating fact (as here),
it remains the case that the jury’s verdict [or the guilty plea] alone
does not authorize the sentence. The judge acquires that authority
only upon finding some additional fact. Because the State’s
sentencing procedure did not comply with the Sixth Amendment,
petitioner’s sentence is invalid.
Id. at 305.
The Supreme Court re-examined this issue in United States v. Booker, 543 U.S. 220
(2005), which held the federal sentencing guidelines were unconstitutional; the Court said:
The jury convicted [Booker] of possessing at least 50 grams of
crack in violation of 21 U.S.C. § 841(b)(1)(A)(iii) based on
evidence that he had 92.5 grams of crack in his duffel bag. Under
these facts, the Guidelines specified an offense level of 32, which,
given the defendant’s criminal history category, authorized a
sentence of 210-to-262 months. See USSG § 2D1.1(c)(4). . . .
Booker’s actual sentence, however, was 360 months, almost 10
years longer than the Guidelines range supported by the jury
verdict alone. To reach this sentence, the judge found facts beyond
those found by the jury: namely, that Booker possessed 566 grams
of crack in addition to the 92.5 grams in his duffel bag. The jury
never heard any evidence of the additional drug quantity, and the
judge found it true by a preponderance of the evidence. Thus, just
as in Blakely, “the jury’s verdict alone does not authorize the
sentence. The judge acquires that authority only upon finding
some additional fact.” 542 U.S., at 305, 159 L. Ed. 2d 403, 124
S. Ct. 2531. There is no relevant distinction between the sentence
imposed pursuant to the Washington statutes in Blakely and the
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sentences imposed pursuant to the Federal Sentencing Guidelines
in these cases.
Id. at 235. In contrast, the Virginia Supreme Court, although not discussing Apprendi or
Blakely, has found that trial courts have authority to impose up to a three-year term of probation
in addition to the sentence imposed by a jury, based on the provisions of Code § 19.2-295.2.
Williams v. Commonwealth, 270 Va. 580, 583 n.3, 584, 621 S.E.2d 98, 100 & n.3 (2005).2
In United States v. Liero, 298 F.3d 1175 (9th Cir. 2002), the Ninth Circuit Court of
Appeals addressed the essence of appellant’s argument. A trial judge sentenced Liero to serve
fifteen months in prison. When Liero was released from prison, he began three years of
supervised release, pursuant to a federal statute similar to Code § 19.2-295.2. Id. at 1176. When
he violated the conditions of the supervision, the court returned him to prison for an additional
nine months. Id. The Ninth Circuit explained that a statute can provide for additional
components to a sentence without violating the right to a jury as explained in Apprendi v. New
Jersey, 530 U.S. 466 (2000).3 Id. at 1177-78. The Court noted that, while the exercise of
judicial discretion can affect the ultimate sentence, that exercise does not increase a defendant’s
sentence beyond the maximum by statute and the jury’s findings. Id.
Code § 19.2-295.2 applies to all felony sentences involving incarceration “except in cases in
which a court orders a suspended term of confinement of at least six months.” This statute does not
2
This Court also previously upheld the provisions of Code § 19.2-295.2, although in the
context of due process rights rather than the right to a jury. See generally Boyd v.
Commonwealth, 28 Va. App. 537, 507 S.E.2d 107 (1998).
3
As mentioned in Blakely, 542 U.S. at 301-05, Apprendi was the first decision in a line
of cases by the United States Supreme Court that found the right to a jury trial extended beyond
the guilt phase and into the sentencing phase, where the length of the sentence is based on an
additional factual finding. The Apprendi Court held, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490.
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require that a trial court find proof of particular facts independent of the jury’s conviction. The trial
court here did not make any factual determinations beyond those implicit in the jury’s conviction.
Although the trial court stated it was imposing three years of post-release supervision based on the
seriousness of the crime, such a statement does not support appellant’s contention that the trial court
made independent findings of fact. The jury found him guilty of voluntary manslaughter, which is a
serious crime involving a death.
We find no merit to appellant’s contention that his Sixth Amendment right to a jury trial was
violated. Appellant also contends Code § 19.2-295.2 is “facially unconstitutional” because it
requires that the trial court violate a defendant’s Sixth Amendment right to a jury. As this
argument is essentially dependent on the argument we just rejected, we do not address the
“facially unconstitutional” issue separately.
II. Due Process
Appellant also claims that his due process rights were violated when the trial court abused
its discretion by adding post-release supervision to the jury’s sentence. This argument was not
preserved.
During the trial, appellant did not argue specifically that the court violated his due
process rights. In fact, at one point he specifically stated “due process . . . [is] not our
challenge,” conceding that he was not making a due process argument. Therefore, this argument
is not preserved. See Singson v. Commonwealth, 46 Va. App. 724, 749, 621 S.E.2d 682, 693-94
(2005); Farnsworth v. Commonwealth, 43 Va. App. 490, 500-01, 599 S.E.2d 482, 487 (2004),
aff’d, 270 Va. 1, 613 S.E.2d 459 (2005), cert. denied, 126 S. Ct. 1628 (2006). We will not
consider this issue on appeal. See Rule 5A:18.4
4
The Virginia Supreme Court has addressed the issue of judicial discretion in the
application of Code § 19.2-295.2, although without discussing due process. See generally
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III. Separation of Powers
Appellant next argues that Code § 19.2-295.2 violates the principle of separation of powers.
He contends the statute impermissibly allows a judge to “perform what is quite essentially a
legislative function, namely determining what the actual maximum punishment for a crime shall
be.” In other words, appellant contends the legislature, in enacting Code § 19.2-295.2, ceded its
authority to set the maximum penalty for a crime to the trial court.
Appellant was convicted of voluntary manslaughter, a Class 5 felony. See Code
§ 18.2-35. Under Code § 18.2-10, “The authorized punishments for conviction of a felony are
. . . (e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10
years . . . .” Therefore, the maximum sentence for voluntary manslaughter is ten years. The jury
determined that appellant’s sentence should be three years of incarceration. The trial court
imposed that sentence and, pursuant to Code § 19.2-295.2(A), added three years of post-release
supervision.
The legislature clearly established the maximum sentence for voluntary manslaughter
at ten years. The mandate of Code § 19.2-295.2, not the trial court, increases the range of
punishment set by the legislature. Thus, appellant’s argument fails because the legislature, not
the trial court, established the range of punishment. The Virginia appellate courts addressed this
issue previously in Williams, 270 Va. 580, 621 S.E.2d 98, and Boyd v. Commonwealth, 28
Va. App. 537, 507 S.E.2d 107 (1998). The Supreme Court explained:
Under a proper application of the Code section, in determining the
length of a permitted sentence, the three-year term of postrelease
supervision is added to the ten-year term that could have been
imposed for the two offenses of which the defendant was
convicted. This produces a permitted term of thirteen years,
greater by thirty months than the ten and one-half years of
Williams, 270 Va. 580, 621 S.E.2d 98. This Court in Boyd, 28 Va. App. 537, 507 S.E.2d 107,
explicitly found Code § 19.2-295.2 does not violate a defendant’s due process rights.
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punishment actually imposed upon the defendant. Thus, the
sentences imposed by the trial court, including the three-year term
of postrelease supervision, were within the ranges set by the
General Assembly and, therefore, were not illegal.
Williams 270 Va. at 584, 621 S.E.2d at 100. Appellant’s argument does not convince us that the
General Assembly ceded its authority to the judiciary when it enacted Code § 19.2-295.2.
IV. Legislative Intent
Appellant argues that the trial court’s sentence violated the General Assembly’s intention in
enacting Code § 19.2-295.2. He argues that the legislature intended to eliminate parole, but wanted
to keep some form of supervision over released prisoners. He claims the Virginia legislature
intended that judges suspend part of the traditional sentence, imposed by a jury under Code
§ 18.2-10, rather than add to that sentence. We disagree with appellant’s analysis.
Appellant suggests the Court should be guided by Waller v. Commonwealth, 192 Va. 83,
88, 63 S.E.2d 713, 716 (1951), which states, “[A] penal statute must be construed strictly in
favor of the accused.” However, “probation statutes are highly remedial and should be liberally
construed to provide trial courts a valuable tool for rehabilitation of criminals.” Grant v.
Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982) (emphasis added). Code
§ 19.2-295.2 imposes supervision after release from incarceration. As appellant admits on brief,
the statute was intended to provide supervision after a prisoner is released from incarceration.
Code § 19.2-295.2 is more similar to probation than to traditional penal codes and, therefore,
should be interpreted liberally.
When considering the meaning and effect of a statute, this Court follows the long-held
standard that the clear meanings of words are controlling:
“While in the construction of statutes the constant endeavor of the
courts is to ascertain and give effect to the intention of the
legislature, that intention must be gathered from the words used,
unless a literal construction would involve a manifest absurdity.
Where the legislature has used words of a plain and definite import
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the courts cannot put upon them a construction which amounts to
holding the legislature did not mean what it has actually
expressed.”
Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934) (quoting Floyd v. Harding, 69 Va.
401, 405 (1877)).
Code § 19.2-295.2(A) requires that:
the court . . . in addition to any other punishment imposed if such
other punishment includes an active term of incarceration in a state
or local correctional facility, except in cases in which the court
orders a suspended term of confinement of at least six months,
impose a term of postrelease supervision of not less than six
months nor more than three years.
By its clear terms, the statute comes into effect only when a judge suspends less than six months
of a felony sentence. Therefore, it explicitly addresses circumstances when a court will not
suspend any of the sentence. Clearly, the General Assembly considered the possibility that a
judge may not suspend any of the imposed sentence and, therefore, put in place a requirement for
“postrelease supervision of not less than six months nor more than three years” in such
circumstances.
Additionally, Code § 19.2-295.2 states that post-release supervision is “in addition to any
other punishment imposed if such other punishment includes an active term of incarceration.”
(Emphasis added.) This language does not direct the trial court to suspend a part of the
traditional sentence under Code § 18.2-10, but instead to add a period of post-release supervision
when less than six months of the traditional sentence is suspended.5
5
This Court recently held that Code § 19.2-295.2 also requires a trial court to impose an
additional term of supervision when the agreed upon sentence in a plea agreement includes no
suspended time. See generally Wright v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d
___, ___ (2006).
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As this Court previously held in Allard v. Commonwealth, 24 Va. App. 57, 66-69, 480
S.E.2d 139, 143-45 (1997), Code § 19.2-295.2 permissibly extends a felon’s sentence beyond the
sentence imposed by a jury. The General Assembly did not create a conflict with the older
sentencing structure, but instead changed it. Id. at 68, 480 S.E.2d at 144. Appellant asks this
Court to find that the legislature did not intend what it clearly expressed in Code § 19.2-295.2.
This suggestion runs counter to the basic principles of statutory construction.
V. Conclusion
We find that appellant’s arguments are without merit and affirm his sentence.
Affirmed.
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