Alston v. Com.

• Court: Virginia Supreme Court
• Writing for the Court: G
• Citation: Alston v. Com., 652 S.E.2d 456, 274 Va. 759 (2007)
• Decision Date: 02 November 2007
• Docket Number: Record No. 070007.
• Parties: Andrew Robert ALSTON v. COMMONWEALTH of Virginia.

652 S.E.2d 456

Andrew Robert ALSTON v. COMMONWEALTH of Virginia.

Record No. 070007.

Supreme Court of Virginia.

November 2, 2007.

S. Jane Chittom, Appellate Defender, for appellant.

Stephen R. McCullough, Deputy State Solicitor General (Robert F. McDonnell, Attorney

General; William E. Thro, State Solicitor General, on brief), for appellee.

Present: HASSELL, C.J., KEENAN, KOONTZ, KINSER, LEMONS, and AGEE, JJ., and LACY, S.J.

OPINION BY Justice G. STEVEN AGEE.

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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 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 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 progeny, primarily Blakely v. Washington and Cunningham v. California, 549 U.S. ___, 127 S.Ct. 856, 166 L.Ed.2d 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, 120 S.Ct. 2348. 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, 120 S.Ct. 2348. 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, 120 S.Ct. 2348.

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 which were beyond those inherent in Apprendi's guilty plea and by a standard lower than beyond a reasonable doubt. Id. at 476, 120 S.Ct. 2348. Apprendi set the stage for further refinement of the Sixth Amendment concept in Blakely, Cunningham, and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 124 S.Ct. 2531 (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, 124 S.Ct. 2531 (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, 124 S.Ct. 2531.

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.

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, 124 S.Ct. 2531 (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, 125 S.Ct. 738.

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 more than 262 months incarceration. However, the trial judge found separately from the jury and only by...