Henderson v. Commonwealth
| Docket Number | Record No. 1359-21-2 |
| Decision Date | 11 April 2023 |
| Citation | 77 Va.App. 250,885 S.E.2d 477 |
| Parties | Travis Alexander BLAND HENDERSON, s/k/a Travis Alexander Bland-Henderson v. COMMONWEALTH of Virginia |
| Court | Virginia Court of Appeals |
Aaron C. Forstie, Senior Assistant Public Defender, for appellant.
Lucille M. Wall, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
Present: Judges O'Brien, Ortiz and Raphael
OPINION BY JUDGE STUART A. RAPHAEL
The word shall has multiple possible meanings. We confront here yet another statute that uses shall and are asked to decide whether the shall is mandatory or directory. When a statute uses shall to call for action by a public official or public body, our Supreme Court and this Court have generally read the shall as directory (should or will ), not mandatory (must ), unless the context suggests otherwise. As a natural corollary to that proposition, we conclude that when a statute uses shall to command action by a private litigant, it is best understood as mandatory unless the context suggests otherwise. Applying that rule of construction, we conclude that the defendant here waived his request for jury sentencing under Code § 19.2-295(A) because he failed to file his demand "at least 30 days" before trial.
A jury convicted Travis Alexander Bland-Henderson of possessing a firearm after being previously convicted of a violent felony, and the trial judge sentenced him to the mandatory minimum of five years’ incarceration. Bland-Henderson raises three arguments on appeal: the trial court was wrong to find that he waived his demand for jury sentencing by failing to request it within the 30 days specified by Code § 19.2-295(A) ; he should have been allowed to question prospective jurors about their views on mandatory-minimum sentences; and the prosecution failed to prove that he knowingly possessed a firearm.
We recite the facts "in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court." Hammer v. Commonwealth , 74 Va. App. 225, 231, 867 S.E.2d 505 (2022) (quoting Commonwealth v. Cady , 300 Va. 325, 329, 863 S.E.2d 858 (2021) ). Doing so requires that we "discard" the defendant's evidence when it conflicts with the Commonwealth's evidence, "regard as true all the credible evidence favorable to the Commonwealth," and read "all fair inferences" in the Commonwealth's favor. Cady , 300 Va. at 329, 863 S.E.2d 858 (quoting Commonwealth v. Perkins , 295 Va. 323, 324, 812 S.E.2d 212 (2018) ).
In September 2018, Bland-Henderson was convicted of conspiracy to commit robbery in violation of Code §§ 18.2-22 and 18.2-58. Virginia law classifies that offense as a "violent felony." Code § 17.1-805(C). A subsequent conviction for possessing a firearm constitutes a Class 6 felony that is punishable by "a mandatory minimum term of imprisonment of five years." Code § 18.2-308.2(A).
On the evening of September 14, 2020, Officer Ja-Ontay Wilson was on patrol in the City of Richmond when he observed Bland-Henderson and another man running across the street. Bland-Henderson was wearing a "grayish Polo shirt" and carrying a "silver item in his hand" that Wilson "believed to be a firearm." Wilson gave chase on foot. When Wilson shouted to stop, Bland-Henderson turned around to look, and Wilson "clearly" saw Bland-Henderson toss a firearm. Wilson saw where it landed. Bland-Henderson kept running, and Wilson kept up the chase, keeping Bland-Henderson in sight the whole time until another police officer apprehended him. Returning to the spot where he saw Bland-Henderson throw away the gun, Wilson recovered a silver .38 caliber pistol with a loaded magazine. The grand jury indicted Bland-Henderson for possessing a firearm after being convicted of a violent felony.
The trial court scheduled Bland-Henderson's jury trial to begin on September 21, 2021. Virginia law provides that a defendant whose guilt is determined by the jury will have the sentence decided by the court unless the defendant elects before trial for the jury to determine the sentence as well. See Code §§ 19.2-295(A), 19.2-295.1. "Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial." Code § 19.2-295(A) (emphasis added). Bland-Henderson filed his written request for jury sentencing on September 8, however, only 13 days before trial.
When the trial began, the court denied Bland-Henderson's motion for jury sentencing as untimely, rejecting his suggestion that a continuance was the remedy for his late filing. The court interpreted the shall in Code § 19.2-295(A) as mandatory, concluding that Bland-Henderson waived his request by not filing it at least 30 days before trial:
When the legislature tell[s] me shall , that means shall. When the legislature tells me may , that means they get to use discretion. This is a shall. You have to file 30 days ahead of time. It is waived.
(Emphasis added.) Bland-Henderson also argued that, even if he had waived jury sentencing, he had the "right to inform the jury" during voir dire that the charge carried a five-year mandatory-minimum prison sentence. The trial court disagreed, ruling that such information was irrelevant under Code § 19.2-262.01 because the jury would not determine the sentence.
After the Commonwealth presented its evidence and the trial court denied his motion to strike, Bland-Henderson presented testimony from his friend of 15 years, Antonio Kornegay. Kornegay testified that he had been with Bland-Henderson shortly before the arrest. Although Bland-Henderson was wearing tightly fitting jeans and a polo shirt, Kornegay saw no unusual bulge in his clothing that suggested that Bland-Henderson might be concealing a gun. Kornegay added that he had "never seen" Bland-Henderson with a gun.
After the court denied Bland-Henderson's renewed motion to strike, the jury found him guilty. The trial court imposed the mandatory-minimum sentence of five years’ incarceration. Bland-Henderson noted a timely appeal.
Bland-Henderson contends that the trial court erred when it interpreted the shall in Code § 19.2-295(A) to eliminate the court's discretion to permit jury sentencing when he failed to request it at least 30 days before trial. We review such questions of statutory construction de novo. Rock v. Commonwealth , 76 Va. App. 419, 431, 882 S.E.2d 490 (2023).
The statute here provides that when a jury determines guilt, the trial court will determine the punishment unless the defendant requests jury sentencing. Code § 19.2-295(A). To request jury sentencing, the defendant is given a shall command: "Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial." Id. (emphasis added).
Bland-Henderson urges that we read the shall as directory, not mandatory. The Commonwealth responds that we should treat the shall as mandatory. Both sides quote language from cases decided by our Supreme Court or this Court that putatively support their positions.
To resolve this dispute, we first describe the interpretive problems surrounding shall and survey how Virginia appellate courts have wrestled with its ambiguities. We then adopt a modest presumption that best reconciles Virginia's appellate caselaw: we presume shall to mean must when the statute in question commands action by a private litigant, unless the context suggests otherwise. And we find that this presumption requires rejecting Bland-Henderson's claim that the trial court here had discretion to permit a late filing.
Shall is inherently ambiguous. The Oxford English Dictionary (O.E.D.) has traced the origins of the word to the 8th Century and has catalogued 29 separate usages. See Shall , The Compact Edition of the Oxford English Dictionary (1971). Despite that impressive variety of meaning, shall is rarely used in common parlance; yet it flourishes among lawyers and legislative drafters.1
The current edition of Black's Law Dictionary identifies five uses of shall in legal texts: (1) "Has a duty to" or "is required to"; (2) "Should"; (3) "May"; (4) "Will"; and (5) "Is entitled to." Shall , Black's Law Dictionary (11th ed. 2019). Black's recommends that "[o]nly sense 1 is acceptable under strict standards of drafting." Id. And that "is the mandatory sense that drafters typically intend and that courts typically uphold." Id.
Still, shall ’s capacity for shapeshifting has led to confusion and litigation throughout the United States. Thomson-West's Words and Phrases Alex MacDonald, Shall We Proceed? Ebbs, Flows, and Futility in the Debate over Words of Authority , 20 Scribes J. Legal Writing 81, 83 (2022). The United States Supreme Court observed nearly three decades ago that "[t]hough ‘shall’ generally means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or even ‘may.’ " Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 432 n.9, 115 S.Ct. 2227, 2235 n.9, 132 L.Ed.2d 375 (1995) (Ginsburg, J.). Judge Easterbrook put it more bluntly: " ‘Shall’ is a notoriously slippery word that careful drafters avoid." McCready v. White , 417 F.3d 700, 702 (7th Cir. 2005) (Easterbrook, J.). "In just about every jurisdiction, courts have held that shall can mean not just must and may , but also will and is. " Bryan A. Garner, Legal Writing in Plain English 105 (2d ed. 2013) (footnotes omitted). " Id. (quoting Joseph Kimble, The Many Misuses of "Sh...
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