PRESENT: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.
ANDREW ROBERT ALSTON
OPINION BY
v. Record No. 070007 JUSTICE G. STEVEN AGEE
November 2, 2007
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Andrew Robert Alston was found guilty of voluntary
manslaughter by a jury in the Circuit Court of the City of
Charlottesville. In addition to a term of active incarceration,
the circuit court also imposed a three-year term of postrelease
supervision as required by Code § 19.2-295.2. On appeal in the
Court of Appeals, Alston challenged the term of postrelease
supervision, which he contends violates his rights under the
Sixth Amendment, his right to due process, and constituted an
abuse of sound judicial discretion. The Court of Appeals
affirmed the judgment of the circuit court.
For the reasons set forth below, we will affirm the
judgment of the Court of Appeals.
I. RELEVANT FACTS AND PROCEEDINGS BELOW
On November 9, 2004, a jury in the Circuit Court of the
City of Charlottesville convicted Alston of voluntary
manslaughter in the death of Walker Sisk. The jury recommended
a sentence of three years active incarceration. The circuit
court set the case for sentencing pending the completion of a
pre-sentence investigation report pursuant to Code § 19.2-299.
Prior to the sentencing hearing, Alston filed a motion
challenging a term of postrelease supervision under Code § 19.2-
295.2 on several grounds. Alston contended the application of
that statute to permit the imposition of a term of postrelease
supervision, in addition to the term of active incarceration
recommended by the jury, violated the separation of powers
between the legislative and judicial branches. In an additional
memorandum filed with the circuit court, Alston argued that
postrelease supervision under Code § 19.2-295.2 extends a
sentence beyond the statutory maximum as determined by the line
of cases represented by Apprendi v. New Jersey, 530 U.S. 466
(2000), and Blakely v. Washington, 542 U.S. 296 (2004). He also
argued that the judicial construction of the statute contravened
both the plain language of the statute and the legislature’s
intent in enacting it. When Alston argued his motion at the
sentencing hearing, he expressly rejected a characterization of
his challenge to Code § 19.2-295.2 as one based on due process
grounds.
Based on the briefs and argument, the circuit court found
that, as part of the statutory sentencing framework established
by the General Assembly, postrelease supervision imposed under
Code § 19.2-295.2 does not violate the separation of powers, and
2
that neither Apprendi nor Blakely applied. Alston specifically
requested that the circuit court identify any facts that it, as
opposed to the jury, had found as a basis for imposing a
specific term of postrelease supervision under Code § 19.2-
295.2: “I want to be clear I’ve asked the Court to focus now on
any fact the Court would have to take into consideration or
determine . . . .” The court responded that “I don’t think I
need to make any other fact finding” than the jury’s verdict of
guilty.
The circuit court then imposed the jury’s recommended
three-year period of active incarceration, and ordered that
Alston also be placed under postrelease supervision pursuant to
§ 19.2-295.2(A) for an additional three years.1
The Court of Appeals affirmed the judgment of the circuit
court. Alston v. Commonwealth, 49 Va. App. 115, 117, 637 S.E.2d
344, 345 (2006). We awarded Alston this appeal.
II. ANALYSIS
On appeal in this Court, Alston assigns error to the
judgment of the Court of Appeals on four basic grounds.
Initially, he contends the Court of Appeals erred because it
failed to find that a term of postrelease supervision under Code
§ 19.2-295.2, as applied in this case, violates Alston’s Sixth
1
Alston’s three-year term of active incarceration is not at
issue in this appeal.
3
Amendment rights.2 As a corollary matter, Alston contends that
Code § 19.2-295.2 is unconstitutional on its face.
Separately, Alston contends the imposition of the three-
year term of postrelease supervision “is arbitrary and violates
the principals of sound judicial discretion.” Lastly, Alston
assigns error to the failure of the circuit court and Court of
Appeals to hold that Code § 19.2-295.2, as interpreted,
contradicts legislative intent.
A. STANDARD OF REVIEW
Each of Alston’s assignments of error raises questions of
law. On appeal, we review such issues de novo. Harrell v.
Harrell, 272 Va. 652, 656, 636 S.E.2d 391, 393 (2006); Shivaee
v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005).
B. THE SIXTH AMENDMENT
Alston’s primary argument is that the imposition of a term
of postrelease supervision under Code § 19.2-295.2 constitutes
an unconstitutional enhancement of the sentence of active
incarceration permitted by the jury’s sentence and findings of
fact in his case. Alston bases his argument on the Sixth
Amendment right to trial by jury as explicated by the Supreme
Court of the United States in Apprendi v. New Jersey and its
2
The Sixth Amendment provides in pertinent part that “[i]n
all criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury . . . .” U.S.
Const. amend. VI.
4
progeny, primarily Blakely v. Washington and Cunningham v.
California, 549 U.S. ___, 127 S.Ct. 856 (2007). He contends the
Court of Appeals erred in its application of those decisions
because it found no Sixth Amendment violation in his case.
In Apprendi, the Supreme Court enunciated the Sixth
Amendment requirement that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
The defendant in Apprendi pled guilty to the crime of
“possession of a firearm for an unlawful purpose,” which was
punishable by statute for a term of incarceration “between five
years and 10 years.” However, the applicable New Jersey law
permitted “an extended term of imprisonment if the trial judge
finds, by a preponderance of the evidence,” that the defendant
acted with a purpose to intimidate the victim on the basis of
race or similar factors. Id. at 468-69. The trial judge so
found and sentenced Apprendi to twelve years in prison instead
of the five to ten years that otherwise would have been the
applicable range of sentence. Id. at 471.
The Supreme Court reversed Apprendi’s sentence because his
Sixth Amendment rights were violated when the trial judge
increased the otherwise applicable statutory maximum sentence
(five to ten years) based upon facts only found by the judge and
5
which were beyond those inherent in Apprendi’s guilty plea and
by a standard lower than beyond a reasonable doubt. Id. at 476.
Apprendi set the stage for further refinement of the Sixth
Amendment concept in Blakely, Cunningham, and United States v.
Booker, 543 U.S. 220 (2005).
In Blakely, the Court clarified “that the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the
jury verdict or admitted by the defendant.” Blakely, 542 U.S.
at 303 (emphasis in original). Blakely pled guilty to the
abduction of his spouse, which carried a maximum sentence by
statute in the State of Washington of no more than ten years.
However, other statutory restrictions limited the trial judge’s
sentencing option to a maximum range of 49 to 53 months, unless
the judge “finds ‘substantial and compelling reasons justifying
an exceptional sentence.’” Id. at 299 (quoting Wash. Rev. Code
§ 9.94A.120(2)). The trial judge alone made such additional
findings of fact and based on the additional findings imposed an
“exceptional sentence of 90 months⎯37 months beyond the standard
maximum.” Id. at 300.
Citing Apprendi, the Supreme Court reversed Blakely’s
sentence because it exceeded the “relevant statutory maximum” –
that is, the sentence that could be derived only from a jury
verdict and findings or the defendant’s admissions.
6
Our precedents make clear, however, that the
"statutory maximum" for Apprendi purposes is the
maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or
admitted by the defendant. In other words, the
relevant "statutory maximum" is not the maximum
sentence a judge may impose after finding additional
facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment
that the jury's verdict alone does not allow, the jury
has not found all the facts "which the law makes
essential to the punishment," and the judge exceeds
his proper authority.
Id. at 303-04 (internal citations omitted) (emphasis in
original).
The Supreme Court’s decision in Blakely effectively
overturned the mandatory sentencing guideline system in the
State of Washington. Shortly thereafter, the Supreme Court
similarly invalidated the federal mandatory sentencing guideline
system in Booker. In referencing Blakely as it considered the
federal sentencing scheme, the Court in Booker reiterated that
“[t]he application of Washington’s sentencing scheme violated
the defendant’s right to have the jury find the existence of
‘any particular fact’ that the law makes essential to his
punishment.” Booker, 543 U.S. at 232.
Booker was convicted by a jury under 21 U.S.C. § 841(a)(1)
for possession with the intent to distribute cocaine based on
the evidence at trial that Booker had 92.5 grams of cocaine in
his possession. On those facts alone, under the federal
sentencing guidelines, Booker was subject to a sentence of no
7
more than 262 months incarceration. However, the trial judge
found separately from the jury and only by a preponderance of
the evidence, that Booker possessed a substantially greater
quantity of cocaine than 92.5 grams and was also guilty of
obstructing justice. Based on these additional findings, the
federal sentencing guidelines required that the trial judge
exceed the otherwise applicable maximum sentence of 262 months
and sentence Booker to 360 months. In considering Booker’s
enhanced sentence, the Supreme Court restated its declaration in
Blakely “that the ‘statutory maximum’ for Apprendi purposes is
the maximum sentence a judge may impose solely on the basis of
facts reflected in the jury verdict or admitted by the
defendant.” Booker, 543 U.S. at 228 (emphasis in original).
Because Booker’s enhanced sentence was based on facts
neither found by the jury nor admitted by him, that sentence
violated his Sixth Amendment rights and was reversed.
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." There is no
relevant distinction between the sentence imposed
pursuant to the Washington statutes in Blakely and the
sentences imposed pursuant to the Federal Sentencing
Guidelines in these cases.
Booker, 543 U.S. at 235 (internal citations omitted).
8
Importantly, the Court in Booker went on to explain that
when a sentence is within the permissible statutory range, and
no additional facts are required to be found by the sentencing
judge in order to impose sentence, then the inherent judicial
discretion in imposing a sentence within the statutory range
does not implicate the Sixth Amendment.
If the Guidelines as currently written could be read
as merely advisory provisions that recommended, rather
than required, the selection of particular sentences
in response to differing sets of facts, their use
would not implicate the Sixth Amendment. We have
never doubted the authority of a judge to exercise
broad discretion in imposing a sentence within a
statutory range. . . . For when a trial judge
exercises his discretion to select a specific sentence
within a defined range, the defendant has no right to
a jury determination of the facts that the judge deems
relevant.
Booker, 543 U.S. at 233.
Earlier this year, in setting aside a similarly enhanced
sentence under California’s determinate sentencing system in
Cunningham, the Supreme Court again reiterated the basic
principles of the foregoing cases.
This Court has repeatedly held that, under the Sixth
Amendment, any fact that exposes a defendant to a
greater potential sentence must be found by a jury,
not a judge, and established beyond a reasonable
doubt, not merely by a preponderance of the evidence.
. . . .
We cautioned in Blakely, however, that broad
discretion to decide what facts may support an
enhanced sentence, or to determine whether an enhanced
sentence is warranted in any particular case, does not
shield a sentencing system from the force of our
decisions. If the jury's verdict alone does not
9
authorize the sentence, if, instead, the judge must
find an additional fact to impose the longer term, the
Sixth Amendment requirement is not satisfied.
Cunningham, 127 S.Ct. at 863, 869.
As in Booker, the Court in Cunningham clarified that if the
sentence in a criminal case is within the permitted statutory
limit based solely upon the finding of a jury or the defendant’s
admissions, without any additional fact-finding by the trial
court, then a sentence within that range raised no Sixth
Amendment claim. “Other States have chosen to permit judges
genuinely ‘to exercise broad discretion within a statutory
range,’ which, ‘everyone agrees,’ encounters no Sixth Amendment
shoal.” Cunningham, 127 S.Ct. at 871 (quoting Booker, 543 U.S.
at 233).
It is against this precedential background that Alston
raises his Sixth Amendment claim. In short, he argues that the
“relevant statutory maximum” for Apprendi purposes is solely the
three years of active incarceration set by the jury. He grounds
this argument in his reading of Code § 19.2-295 as a state law
limitation on the statutory maximum, but alternatively asserts
that the circuit court also engaged in the type of additional
fact-finding Apprendi prohibits.
Alston first contends that Code § 19.2-295, which provides
that the term of confinement “of a person convicted of a
criminal offense shall be ascertained by the jury,” unless the
10
case is tried without a jury, is a Virginia statutory limit that
also serves as the Apprendi relevant statutory maximum when a
jury recommends a sentence. Alston thus concludes that the
terms of Code § 19.2-295 prohibit any sentence under Code
§ 19.2-295.2 since the latter code section does not involve a
sentence from the jury.3
The Commonwealth responds that this issue was addressed in
Williams v. Commonwealth, 270 Va. 580, 621 S.E.2d 98 (2005),
when we decided that the Code § 19.2-295.2 term of postrelease
supervision was combined with any term of active incarceration
for the purposes of calculating the statutory maximum sentence.
Id. at 584, 621 S.E.2d at 100. However, the Sixth Amendment
claims raised under Apprendi and Blakely were not before the
Court in Williams because those issues had been waived. 270 Va.
at 583 & n.3, 621 S.E.2d at 100 & n.3. Nevertheless, the
Commonwealth contends that Williams is dispositive in this case
because Alston did not receive the statutory maximum under
Williams. In the Commonwealth’s view, since voluntary
manslaughter is punishable as a Class 5 felony under Code
§ 18.2-10 with a maximum term of ten-years incarceration,
Alston’s
3
In Alston’s view, a term of postrelease supervision under
Code § 19.2-295.2 could be imposed, consonant with Code § 19.2-
295, only if an equivalent part of the sentence of active
11
incarceration permitted by the jury recommendation were
suspended.
12
sentence of three-years active incarceration and three-years
postrelease supervision is within the Code § 18.2-10 maximum
term and thus does not violate the Apprendi Sixth Amendment
framework. We disagree with both parties.
There are several fatal flaws in Alston’s analysis. First,
he ignores the necessity to read the statutes, Code §§ 19.2-295
and 19.2-295.2, together and not in isolation. “It is a
cardinal rule of construction that statutes dealing with a
specific subject must be construed together in order to arrive
at the object sought to be accomplished.” Prillaman v.
Commonwealth, 199 Va. 401, 406, 100 S.E.2d 4, 7 (1957) (quoting
Seaboard Fin. Corp. v. Commonwealth, 185 Va. 280, 286, 38 S.E.2d
770, 772 (1946) (internal quotation marks omitted)).
Under the rule of statutory construction of statutes
in pari materia, statutes are not to be considered as
isolated fragments of law. . . . [T]hey should be so
construed as to harmonize the general tenor or purport
of the system and make the scheme consistent in all
its parts and uniform in its operation, unless a
different purpose is shown plainly or with
irresistible clearness.
Prillaman, 199 Va. at 405, 100 S.E.2d at 7 (quoting 50 Am. Jur.,
Statutes § 349). Alston also ignores the plain language of the
statutes. “When the language of a statute is plain and
unambiguous, we are bound by the plain meaning of that statutory
language.” Lee County v. Town of St. Charles, 264 Va. 344, 348,
568 S.E.2d 680, 682 (2002).
13
Notwithstanding any limitations Code § 19.2-295 may place
upon a term of confinement a jury may determine, Code § 19.2-
295.2 unequivocally directs the circuit court, “in addition to
any other punishment imposed,” to impose the term of postrelease
supervision. Code § 19.2-295.2(A) (emphasis added). The term
of postrelease supervision is a mandate to the court, not the
jury, and applies by the plain terms of Code § 19.2-295.2
irrespective of any limitations Code § 19.2-295 may apply to a
jury’s sentence. “In addition to any other punishment imposed”
means what it says and, by those plain terms, contains no
limitation from Code § 19.2-295. In short, Code § 19.2-295.2 is
a clear and unmistakable requirement upon the court that is
unrelated to any jury limitation under Code § 19.2-295.
As we noted in Williams, the term of postrelease
supervision under Code § 19.2-295.2 is part of the maximum term
permitted by statute and is not limited by Code § 19.2-295.
“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 . . . term that could
have been imposed for the . . . offenses of which the defendant
was convicted.” Williams, 270 Va. at 584, 621 S.E.2d at 100.
Thus, properly read, Code §§ 19.2-295 and 19.2-295.2 do not
support Alston’s thesis that Virginia law limits the relevant
statutory maximum term, for Apprendi purposes, to the three-year
14
term of active incarceration determined by the jury.4 However,
as we recognized in Williams, resolution of the question of
Virginia statutory law does not answer the federal
constitutional question. 270 Va. at 583 n.3, 621 S.E.2d at 100
n.3.
To answer that query, we must determine what constitutes
“the relevant statutory maximum” for Sixth Amendment purposes
under Apprendi, regardless of what that maximum term may be
under Virginia statute. The roadmap to determine that answer
has been clearly demarcated by the Supreme Court as we noted
above in quoting the Blakely decision.
[T]he "statutory maximum" for Apprendi purposes is the
maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict . . .
. [T]he relevant "statutory maximum" is not the
maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose
without any additional findings.
Blakely, 542 U.S. at 303-04 (internal citations omitted)
(emphasis in original).
4
Alston’s statutory language argument under Code § 19.2-295
is also rebutted by the multitude of actions a trial court is
authorized to take by statute in addition to any sentence
“ascertained by the jury.” These include ordering substance
abuse screenings under Code § 19.2-299.2 of a person convicted
of possession of controlled substances; collection of a DNA
sample under Code § 19.2-310.2 of a person convicted of a
felony; and ordering restitution to victims under Code § 19.2-
305.1, to name but three. If Alston’s theory of the
exclusiveness of a jury sentence under Code § 19.2-295 were
correct, all the foregoing could arguably be a legal nullity.
15
Clearly, the Commonwealth’s position that the maximum term
of incarceration permitted by statute for a particular crime is
the equivalent of the relevant statutory maximum for Sixth
Amendment purposes was rejected in Blakely. While the maximum
term provided by a statute and the Apprendi relevant statutory
maximum may be coterminous, that circumstance depends on the
“facts reflected in the jury verdict.” As a matter of federal
constitutional law, only those facts found by the jury or
necessarily derived from its verdict can be the basis of the
relevant statutory maximum sentence that a court can impose
consonant with the defendant’s Sixth Amendment rights.
So viewed, we agree with the conclusion of the Court of
Appeals on this issue. “This statute[, Code § 19.2-295.2,] does
not 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.” Alston, 49 Va. App. at 121-22, 637 S.E.2d
at 347.
The verdict of guilty to the charge of voluntary
manslaughter was the sole factual finding by the jury that was
needed by the circuit court for the imposition of a term of
postrelease supervision under Code § 19.2-295.2. The jury’s
verdict of guilty was the only factual predicate required by
Code § 19.2-295.2 before the statutory mandate was triggered
16
that the circuit court “impose a term of postrelease supervision
of not less than six months nor more than three years.” The
jury finding of Alston’s guilt was “all the facts which the law
makes essential to the punishment” under Code § 19.2-295.2.
Thus, the Apprendi requirement that the sentence imposed be
“solely on the basis of facts reflected in the jury verdict” was
met in this case and Alston’s three-year term of postrelease
supervision is within the “relevant statutory maximum” for that
reason. The fact that the circuit court exercised its
discretion in selecting the term of postrelease supervision to
impose a term of between six months and three years does not
alter our conclusion.
The choice as to the duration of that term was a matter
within the inherent discretion of the court in imposing a
sentence, and required no additional fact-finding in an Apprendi
context. A court clearly has that authority under Virginia law
when it chooses a point within the permitted statutory range.
“[W]hen a statute prescribes a maximum imprisonment penalty and
the sentence does not exceed that maximum, the sentence will not
be overturned as being an abuse of discretion.” Abdo v.
Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)
(citing Perry v. Commonwealth, 208 Va. 283, 156 S.E.2d 566
(1967)). Such a choice within the relevant statutory range
raises no Apprendi Sixth Amendment issue because no additional
17
fact-finding is made by the sentencing judge under Code § 19.2-
295.2 or required in addition to those facts found or implied by
the jury’s verdict. This conclusion is securely grounded in the
Supreme Court’s pronouncement in Booker that “when a trial judge
exercises his discretion to select a specific sentence within a
defined range, the defendant has no right to a jury
determination of the facts that the judge deems relevant.” 543
U.S. at 233; accord Cunningham, 127 S.Ct. at 866.
Lastly, Alston argues that even if the circuit court was
within its authority to impose the term of postrelease
supervision under Apprendi, the circuit court nonetheless acted
to take that sentence out of any constitutional safe harbor by
making factual findings independent of the jury, as the basis
for its decision to fix a term of postrelease supervision at
three years instead of a lesser term. This argument is without
merit and has no basis in the record.
Contrary to Alston’s contention, the circuit court
specifically declined to accept Alston’s request to state
findings of fact as the basis for the court’s choice in the
length of the postrelease term. In fact, the circuit court
noted that no fact-finding on its part was required: “Well I
don’t think I need to make any other fact finding other than to
impose . . . . I think my discretion is only limited to how
much.” Any observations by the circuit court in imposing the
18
term of postrelease supervision were remarks of a general
nature, which were not findings of fact.
Accordingly, we find no error in the judgment of the Court
of Appeals that the imposition of a term of postrelease
supervision under Code § 19.2-295.2 did not violate any rights
of Alston under the Sixth Amendment.5
C. PROCEDURAL DEFAULT
Alston argues in another assignment of error that the
duration of the term of postrelease supervision imposed by the
circuit court was arbitrary, in violation of his due process
rights, and an abuse of sound judicial discretion. The Court of
Appeals found Alston’s due process claim was procedurally
defaulted, and Alston also separately assigns that determination
as error. The Commonwealth contends Alston’s appellate claims
of arbitrary action and abuse of discretion by the circuit court
were also defaulted because they were never made in the circuit
court. We agree with the Commonwealth.
5
Alston’s second assignment of error is that Code § 19.2-
295.2 is unconstitutional on its face. To establish facial
unconstitutionality, Alston “must establish that no set of
circumstances exists under which [§ 19.2-295.2] would be valid.”
United States v. Salerno, 481 U.S. 739, 745 (1987). As our
resolution of Alston’s first assignment of error reflects, we
find no constitutional infirmity in the application of Code
§ 19.2-295.2 in this case. Thus, Alston’s contention that the
section is unconstitutional on its face obviously fails and we
need comment no further on this assignment of error.
19
The rules of this Court limit the consideration of the
Court of Appeals to those rulings upon which timely objection
has been made, with the grounds for such objection, and provide
that “mere statement that the judgment . . . is contrary to the
law . . . is not sufficient to constitute a question to be ruled
upon on appeal.” Rule 5A:18. Our rules similarly limit the
consideration of this Court. Rule 5:25.
In considering whether or not Alston preserved his due
process claim, the Court of Appeals noted the transcript of the
circuit court sentencing hearing. At that hearing, Alston’s
counsel told the circuit court that “due process [is] not our
challenge” to the application of a postrelease term under Code
§ 19.2-295.2. Accordingly, the Court of Appeals held that
Alston’s due process claim on appeal was barred by Rule 5A:18.
Alston points to no place in the record where his due
process claim was preserved so as to contradict the judgment of
the Court of Appeals on this issue. Neither does Alston plead
good cause for his failure to assert a due process claim or seek
application of the ends of justice exception. Thus, the Court
of Appeals did not err in holding any due process claim by
Alston was waived.
The Commonwealth also asserts that Alston’s arbitrary
action and abuse of discretion arguments are actually a thinly
veiled attempt to raise his defaulted due process claim and that
20
neither of those claims was raised in the circuit court. Again,
we agree with the Commonwealth. The record does not reflect
that Alston ever argued to the circuit court that imposition of
the term of postrelease supervision was either arbitrary or an
abuse of discretion. Accordingly, this claim is defaulted under
Rule 5:25 and will not be considered.
D. LEGISLATIVE INTENT
Finally, Alston argues that the application of Code § 19.2-
295.2 by the circuit court and the Court of Appeals contravened
the General Assembly’s intent in enacting that statute.
“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 . . . . Where the legislature has used
words of a plain and definite import the courts cannot put upon
them a construction which amounts to holding the legislature did
not mean what it has actually expressed.” Chase v.
DaimlerChrysler Corp., 266 Va. 544, 547-48, 587 S.E.2d 521, 522
(2003). “Therefore, when the language of an enactment is free
from ambiguity . . . we take the words as written to determine
their meaning.” Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d
84, 87 (1985).
As noted above, Code § 19.2-295.2 provides, in relevant
part, that “[a]t the time the court imposes sentence upon a
21
conviction for any felony offense . . . the court . . . shall,
in addition to any other punishment imposed . . . impose a term
of postrelease supervision of not less than six months nor more
than three years.” Code § 19.2-295.2(A) (emphasis added).
Accordingly, the statute clearly required that Alston’s term of
postrelease supervision be in addition to his term of active
incarceration. Alston’s argument that “[t]here is no clear
language requiring that the postrelease term be in addition to
the full sentence” is contradicted by the plain language of Code
§ 19.2-295.2: he begs of us a construction of the statute that
the words “in addition to any other punishment” cannot bear.
Alston’s argument on his final assignment of error is thus
without merit.
CONCLUSION
For the foregoing reasons, we will affirm the judgment of
the Court of Appeals.
Affirmed.
22