COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bray
Argued at Richmond, Virginia
DANIEL ERIC BOYD
OPINION BY
v. Record No. 1485-97-2 JUDGE LARRY G. ELDER
DECEMBER 1, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
John B. Mann (Levit & Mann, on brief), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Daniel Boyd (appellant) appeals from the sentences imposed
for his jury trial convictions on two related cocaine offenses.
He contends the trial court violated his due process rights by
imposing pursuant to Code § 18.2-10(g) additional punishment for
each offense in the form of a suspended term of post-release
incarceration, which was "conditioned upon his successful
completion of a period of post-release supervision pursuant to
§ 19.2-295.2." For the reasons that follow, we reject
appellant's contention and affirm his sentences.
I.
FACTS
On April 9, 1997, appellant was convicted by a jury for
possession of cocaine with intent to distribute, after previously
having been convicted of a like offense, and for possession of
cocaine with intent to distribute within one-thousand feet of a
school, in violation of Code §§ 18.2-248 and 18.2-255.2,
respectively. Both offenses occurred on June 11, 1996. The jury
fixed punishment at five years and a $1 fine on the first charge
and one year and a $1 fine on the second charge.
On May 19, 1997, the trial judge sentenced appellant in
accordance with the jury verdicts. In addition, pursuant to Code
§ 18.2-10, he sentenced appellant to a suspended post-release
term of three years on each offense. Pursuant to Code
§ 19.2-295.2(A), he imposed a three-year term of post-release
supervision on each charge. Counsel for appellant objected,
arguing that the post-release terms violated appellant's right to
due process because they were beyond the sentences imposed by the
jury. The trial court rejected appellant's contention, and this
appeal followed.
II.
ANALYSIS
Appellant contends the trial court's imposition of
post-release terms of suspended incarceration and supervision
under Code §§ 18.2-10 and 19.2-295.2 violated his due process
right to be sentenced by the jury. Guided by the logic we
employed in Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d
139 (1997), 1 we affirm appellant's sentences.
1
Appellant contends that the portion of Allard rejecting the
argument he advances here is dicta and, therefore, is not
controlling. Assuming without deciding that appellant is correct,
we remain free to make independent application of the reasoning in
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In Virginia, the legislature has given juries the power to
"sentence [a] defendant according to the evidence in the trial
and within the limits set by the General Assembly for the crimes
committed." See Walker v. Commonwealth, 25 Va. App. 50, 62, 486
S.E.2d 126, 132 (1997); see also Code §§ 19.2-295, 19.2-295.1.
"This phenomenon [of jury sentencing] did not arise by accident;
the General Assembly made a conscious decision to depart from the
common law, under which the court sentenced the defendant."
Walker, 25 Va. App. at 61, 486 S.E.2d at 131-32.
However, nothing in the United States or Virginia
Constitution gives a defendant the right to be sentenced by a
jury or solely by a jury. See Fogg v. Commonwealth, 215 Va. 164,
166-67, 207 S.E.2d 847, 849-50 (1974). As we recognized in
Allard, "'[t]he choice of sentencing procedures is a matter for
legislative determination[,]' [and] . . . under Virginia's
statutory scheme, the sentence ascertained by the jury is not
final or absolute." Allard, 24 Va. App. at 67, 480 S.E.2d at 144
(quoting Duncan v. Commonwealth, 2 Va. App. 342, 344-45, 343
S.E.2d 392, 393-94 (1986)).
Code § 19.2-303, for example, provides that, "[a]fter
conviction, whether with or without a jury, the court may suspend
imposition of sentence or suspend the sentence in whole or part
and in addition may place the accused on probation under such
conditions as the court shall determine . . . ." That statutory
Allard to the facts of this case.
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authorization is long standing in Virginia. See 1918 Acts ch.
349 § 2 (enacting predecessor code section). Similarly, Code
§ 19.2-295.2, and related provisions in Code § 18.2-10, 2
expressly permit the court under certain circumstances to enlarge
the sentence recommended by the jury:
At the time the court imposes sentence upon a
conviction for any felony offense committed
on or after January 1, 1995, the court may,
in addition to any other punishment imposed
if such other punishment includes an active
term of incarceration in a state or local
correctional facility, impose a term in
addition to the active term 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 post-release supervision upon release
from the active term of incarceration.
Code § 19.2-295.2(A).
2
The relevant portions of Code § 18.2-10 provide:
For any felony offense committed on or after
January 1, 1995, the court may 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.
Code § 19.2-295.2(A) paraphrases this language and contains
additional provisions regarding the period of supervision.
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Appellant contends that Code § 19.2-295.1, which provides
for bifurcated jury sentencing, 3 gives an accused a due process
right to be sentenced by a jury, thereby rendering
unconstitutional the provisions of Code § 19.2-295.2, which
permit the imposition of a post-release suspended sentence and
supervision. Again, guided by the reasoning in Allard, we
disagree.
Although we did not expressly consider the provisions of
Code § 19.2-295.1 in Allard, we discussed principles of statutory
interpretation that are equally applicable here. As we said in
Allard, "[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.'" 24 Va.
App. at 67, 480 S.E.2d at 144 (quoting Virginia Real Estate Bd.
v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989) (quoting
McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627
(1957))). "To do so, '[t]wo statutes which are closely
interrelated must be read and construed together and effect given
to all of their provisions.' Potentially conflicting statutes
should be harmonized to give force and effect to each." Zamani
v. Commonwealth, 26 Va. App. 59, 63, 492 S.E.2d 854, 856 (1997)
(quoting ACB Trucking, Inc. v. Griffin, 5 Va. App. 542, 547-48,
3
Code § 19.2-295.1 provides that, "[i]n 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." In
that proceeding, the Commonwealth may introduce evidence of
aggravating factors, including prior convictions, and "the
defendant may introduce relevant, admissible evidence related to
punishment." Id.
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365 S.E.2d 334, 337-38 (1988)).
To interpret Code § 19.2-295.1 in the manner appellant urges
would violate these principles. Furthermore, as we reasoned in
Allard, "a plain reading" of § 19.2-295.2 "reveals that [it]
applies to both bench and jury trials." 24 Va. App. at 67, 480
S.E.2d at 144. Therefore, we hold that the legislature intended
the procedures outlined in Code § 19.2-295.1 for the jury's
ascertainment of punishment to be subject to (1) the provisions
of § 19.2-295, which require the jury's sentence to be "[w]ithin
the limits prescribed by law"; (2) the provisions of
§ 19.2-295.2, which permit the trial court to impose a suspended
term of incarceration and post-release supervision when the
jury's sentence includes an active term of incarceration; and (3)
the provisions of Code § 19.2-303, which permit the trial court
to suspend some or all of a sentence and impose probation.
As construed above, the provisions of Code § 19.2-295.2 do
not violate due process as alleged by appellant and do not
conflict with Code §§ 19.2-295, 19.2-295.1 or 19.2-303.
Therefore, the trial court did not violate appellant's due
process rights by imposing post-release periods of suspended
incarceration and supervision pursuant to Code § 19.2-295.2.
For these reasons, we affirm appellant's sentences.
Affirmed.
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