Alston v. Com., Record No. 0951-05-2.

• Decision Date: 05 December 2006
• Docket Number: Record No. 0951-05-2.
• Citation: 637 S.E.2d 344,49 Va. App. 115
• Parties: Andrew Robert ALSTON v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

Page 344

637 S.E.2d 344

49 Va. App. 115

Andrew Robert ALSTON v. COMMONWEALTH of Virginia.

Record No. 0951-05-2.

Court of Appeals of Virginia, Richmond.

December 5, 2006.

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.

Present: BENTON, CLEMENTS and BEALES, JJ.

RANDOLPH A. BEALES, Judge.

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 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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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 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, 124 S.Ct. at 2537. 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, 124 S.Ct. at 2539. 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)]), one of several specified facts (as in Ring [v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (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, 124 S.Ct. at 2538.

The Supreme Court re-examined this issue in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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, 124 S.Ct. 2531, [2538], 159 L.Ed.2d 403. 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.

Id. at 235, 125 S.Ct. at 751. 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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 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...