COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
FRANKLIN ROOSEVELT LAMB
OPINION BY
v. Record No. 0487-02-1 JUDGE SAM W. COLEMAN III
MARCH 11, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Charles D. Griffith, Jr., Judge
Allan D. Zaleski (Weisberg & Zaleski, P.C.,
on brief), for appellant.
John H. McLees, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Franklin Roosevelt Lamb appeals an order revoking his
probation, sentencing him to serve the remaining portion of his
previously suspended sentence and imposing an additional
two-year term of post-release supervision pursuant to Code
§ 19.2-295.2. Lamb does not contest the revocation of his
probation, but contends the trial court erred by imposing the
additional term of post-release supervision. He asserts that
the applicable statutes authorize courts to impose an additional
term of supervision only when the court initially imposes
sentence, not when it revokes and "reimposes" a suspended
sentence. We agree that the trial court erred by imposing an
additional term of post-release supervision after Lamb's release
from incarceration.
In July 1999, Lamb was convicted of possessing cocaine and
sentenced to two years in prison, which sentence the court
suspended and placed Lamb on supervised probation. In April
2000, the trial court revoked Lamb's suspended sentence and
imposed the two-year sentence, which the court again suspended
except for six months. The trial court ordered that Lamb be
placed on supervised probation following his release from
incarceration. In August 2000, the trial court again revoked
Lamb's suspended sentence and imposed the balance of the
two-year sentence, which the court again suspended conditioned
upon Lamb's completion of a diversion program. The court
continued Lamb on supervised probation.
On February 8, 2002, the trial court revoked Lamb's
suspended sentence and imposed the balance of the two-year
sentence, which was approximately one year and six months. When
the trial court revoked the suspended sentence, it also imposed,
relying upon Code § 19.2-295.2, an additional two-year term of
supervision upon Lamb's release from incarceration.
Code § 19.2-295.2(A) provides in pertinent part:
At the time the court imposes sentence upon
a conviction for any felony offense
committed (i) on or after January 1, 1995,
the court may, and (ii) on or after July 1,
2000, shall, in addition to any other
punishment imposed if such other punishment
includes an active term of incarceration in
- 2 -
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, 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.
Lamb argues that the provisions of Code § 19.2-295.2 only
authorize courts to impose a term of post-release supervision at
the time of the initial conviction. Thus, he asserts, the trial
court was without authority under Code § 19.2-295.2 to impose a
period of post-release supervision when on February 8, 2002 it
revoked his probation and suspended sentence. Lamb contends that
revoking a suspended sentence is not "impos[ing] sentence upon a
felony conviction," within the express proviso of Code
§ 19.2-295.2.
The Commonwealth argues that the provision, "at the time the
court imposes sentence upon a felony conviction," is not a
temporal restriction. Thus a court's authority to "impose a term
of post release supervision" is not limited to when the court
initially imposes sentence. Instead, the court may impose an
additional period of supervision whenever the court "imposes" any
part of the original sentence, whether that be when sentence is
first pronounced or is later imposed after revoking a suspended
sentence.
ANALYSIS
- 3 -
The basic tenets of statutory construction
require us to "'ascertain and give effect to
legislative [intent,]'" and "'effect rather
than defeat a legislative purpose evident
from the history of the legislation.'" In
so doing, the "plain, obvious, and rational
meaning of a statute is always preferred to
any curious, narrow or strained construction
. . . ."
Murphy v. Commonwealth, 31 Va. App. 70, 74-75, 521 S.E.2d 301,
303 (1999) (citations omitted). "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).
"In the absence of legislative history to the contrary, penal
statutes are to be strictly construed against the Commonwealth
and in favor of the citizen's liberty. 'Such statutes cannot be
extended by implication or construction, or be made to embrace
cases which are not within their letter and spirit.'" O'Banion
v. Commonwealth, 33 Va. App. 47, 57, 531 S.E.2d 599, 604 (2000)
(en banc) (citations omitted). Moreover, a fundamental rule of
statutory construction requires that courts view the entire body
of legislation and the statutory scheme "to determine the true
intention of each part." McDaniel v. Commonwealth, 199 Va. 287,
292, 99 S.E.2d 623, 627 (1957).
Code § 19.2-295.2 was enacted as part of the General
Assembly's statutory scheme abolishing parole in Virginia. See
Summary of S.B. 3001, Abolition of Parole, 1994, 2nd Spec. Sess.
(Va. 1994) ("The bill authorizes the court to impose additional
- 4 -
terms of between six months and three years for felony offenses
. . . . These additional terms will be used for periods of
post-release supervision."). As part of this statutory scheme
the General Assembly also enacted Code § 18.2-10, which provides,
in pertinent part:
For any felony offense committed (i) on or
after January 1, 1995, the court may, and
(ii) on or after July 1, 2000, shall, except
in cases in which the court orders a
suspended term of confinement of at least
six months, impose an additional term of not
less than six months nor more than three
years, which shall be suspended conditioned
upon successful completion of a period of
post-release supervision pursuant to
§ 19.2-295.2 and compliance with such other
terms as the sentencing court may require.
However, such additional term may only be
imposed when the sentence includes an active
term of incarceration in a correctional
facility.
These statutes are both penal in nature and remedial.
Prior to the abolition of parole, a felon who was paroled
from prison into the community would be under the supervision of
parole authorities for a specified period of time. See Code
§ 53.1-159. The obvious purpose of both the amendment to Code
§ 18.2-10 and Code § 19.2-295.2 is to provide for a period of at
least six months' supervision after parole was abolished for
felons upon their release from active incarceration. Except for
Code §§ 18.2-10 (1995 amendment) and 19.2-295.2, a felon who
would have served a term of incarceration after the abolition of
parole, perhaps a lengthy term, would have been released into the
community without any supervision.
- 5 -
The unambiguous terms of Code § 19.2-295.2 authorize courts
"[a]t the time" it imposes "sentence upon conviction of a felony"
to also impose "a term of post-release supervision." A sentence
is "[t]he judgment that a court formally pronounces after finding
a criminal defendant guilty; the punishment imposed on a criminal
wrongdoer." Black's Law Dictionary 1368 (7th ed. 1999). A
conviction is "[t]he act or process of finding someone guilty of
a crime." Id. at 335. Furthermore, Code § 19.2-298 provides
that "sentence shall be pronounced . . . without unreasonable
delay" after a guilty finding. The imposition of a sentence
"upon a conviction" of a felony occurs at a defined point in
time.
The trial court convicted Lamb in July 1999 of possession of
cocaine and imposed the punishment for the conviction at that
time. The proceedings in 2000 and 2002 were not additional
criminal "convictions," but were revocation proceedings which
reimposed Lamb's original sentence. See Merritt v. Commonwealth,
32 Va. App. 506, 508-09, 528 S.E.2d 743, 744 (2000) (finding that
a probation violation is not itself a criminal conviction, but a
modification of the sentence). Although the trial court imposed
a previously suspended sentence at the 2000 and 2002 revocation
proceedings, it did not do so "upon a conviction of a felony."
The trial judge was modifying Lamb's sentence for a 1999 felony
conviction and ordering Lamb to serve a period of incarceration
imposed in July 1999.
In keeping with the legislative intent that a felon would
not be released from incarceration into the community without
having a minimum of six months' supervision, here the trial court
- 6 -
had provided for a period of at least six months' supervision
when it first suspended the sentence and on at least two
successive periods when it revoked probation but resuspended the
sentence. Appellant would not be released from incarceration
without having had at least six months' supervision as envisioned
by Code §§ 18.2-10 and 19.2-295.2.
Accordingly, we hold that the trial court erred by imposing
an additional two-year term of post-release supervision pursuant
to Code § 19.2-295.2(A) for the first time at the revocation
hearings. The record establishes that this term of post-release
supervision was not imposed at the time of the conviction.
Reversed.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
- 7 -