Hines v. Commonwealth

• Decision Date: 14 February 2012
• Docket Number: Record No. 0228–11–2.
• Parties: Terra Nyree HINES v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

59 Va.App. 567

721 S.E.2d 792

Terra Nyree HINES

v.COMMONWEALTH of Virginia.

Record No. 0228–11–2.

Court of Appeals of Virginia, Richmond.

Feb. 14, 2012.

Catherine S. Rusz (Johnson, Gaborik, Fisher–Rizk, and Rusz, PLC, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; Richard B. Smith, Special Assistant Attorney General, on brief), for appellee.

Present: ELDER, KELSEY and ALSTON, JJ.

ELDER, Judge.

Terra Nyree Hines (appellant) pleaded guilty to two counts of robbery in violation of Code § 18.2–58 and one count of use of a firearm in the commission of one of the robberies in violation of Code § 18.2–53.1. She argues on appeal that the trial court erred in imposing a ten-year sentence for the use of a firearm conviction because Code § 18.2–53.1 sets the maximum sentence at three years. Appellant further contends the trial court erred in imposing a thirteen-year active sentence for all three crimes despite the “substantial mitigating evidence” presented at the sentencing hearing. We hold, and the Commonwealth concedes, see Commonwealth's Br. at 18, that the maximum sentence allowed under Code § 18.2–53.1 is the mandatory term of either three years or five years,¹ and the trial court therefore abused its discretion in imposing the ten-year sentence. We further hold that the trial court did not err in imposing five years active incarceration for each of the robbery charges. We therefore affirm in part, reverse in part, and remand to the trial court with instructions for entry of a sentencing order consistent with this opinion.

I.BACKGROUND

On August 2, 2010, appellant pleaded guilty to two counts of robbery and one count of use of a firearm in the commission of a robbery. The trial court accepted appellant's pleas and continued the matter for sentencing. At the sentencing hearing on December 21, 2010, appellant asked for leniency in sentencing in light of her respectable work history, full cooperation with the authorities upon her arrest, and efforts to improve her life since her incarceration. In response, the Commonwealth stated it did not have an objection to the trial court sentencing appellant below the guidelines. ² The trial court considered appellant's exhibits, “letters from [her] co-workers,” the testimony of her former employer, and appellant's lack of a significant prior criminal history as mitigating factors in favor of deviating downward from the sentencing guidelines. However, the trial court noted that appellant committed a string of robberies and threatened the victims with a weapon. The trial court accordingly sentenced appellant to twenty years on each of the robbery convictions and ten years on the use of a firearm conviction. The trial court further suspended fifteen years on each of the robbery convictions and seven years on the firearm conviction for a total active sentence of thirteen years.³

Appellant did not object to the trial court's reliance on the evidence presented at the sentencing hearing or to the ten-year sentence imposed for the use of a firearm conviction. This appeal follows.

II.ANALYSIS

A.MANDATORY MINIMUM SENTENCE UNDER CODE § 18.2–53.1

Appellant acknowledges that she did not contemporaneously object to the trial court's imposition of her ten-year incarceration for the use of a firearm conviction. Appellant invokes the “ends of justice” exception to Rule 5A:18 to request our consideration of her argument. Under Rule 5A:18, “[n]o ruling of the trial court ... will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling.” However, this Court may consider an alleged error to which no timely and specific objection was made when “good cause [is] shown or to enable the Court of Appeals to attain the ends of justice.” Id. “Determining whether the ends of justice exception should be applied requires the appellate court first to determine whether there was error as [appellant] contends and then ‘whether the failure to apply the ends of justice provision would result in a grave injustice.’ ” Howard v. Commonwealth, 281 Va. 455, 462, 706 S.E.2d 885, 888–89 (2011) (quoting Gheorghiu v. Commonwealth, 280 Va. 678, 689, 701 S.E.2d 407, 413–14 (2010)). In other words, the ends of justice analysis is a two-step process: determining whether the alleged error occurred, and, if so, whether justice requires application of the ends of justice provision. “The record ‘must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might have occurred.’ ” Akers v. Commonwealth, 31 Va.App. 521, 527 n. 2, 525 S.E.2d 13, 16 n. 2 (2000) (quoting Redman v. Commonwealth, 25 Va.App. 215, 221, 487 S.E.2d 269, 272 (1997)).

Appellant contends the trial court erred in sentencing her to ten years incarceration for the use of a firearm conviction because the maximum allowable incarceration under Code § 18.2–53.1 in her case is three years. Specifically, appellant argues the “mandatory minimum” language contained within Code § 18.2–53.1 also operates as a maximum because Code § 18.2–53.1 neither specifies the class of the offense nor contains a maximum punishment. Appellant concludes that the only option for the trial court was to sentence appellant to three years' incarceration, none of which could be suspended.

The Commonwealth agrees with appellant's interpretation of Code § 18.2–53.1 and concedes “that the only sentence available for a first conviction under Code § 18.2–53.1 is three years in prison, which cannot be suspended or run concurrently with any other sentence.” Commonwealth's Br. at 15 (emphasis in original). However, the Commonwealth points out that in 2004, the General Assembly amended Code § 18.2–53.1 to include the phrase “mandatory minimum.” The Commonwealth posits that accepting appellant's argument would effectively rewrite Code § 18.2–53.1 and render the 2004 amendment superfluous.

Because appellant asks this Court to interpret the language of Code § 18.2–53.1 proscribing punishment, we rely on the familiar principles of statutory construction, and review this issue de novo. See Harris v. Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007). “The primary objective of statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). Thus, we construe a statute “with reference to its subject matter, the object sought to be attained, and the legislative purpose in enacting it; the provisions should receive a construction that will render it harmonious with that purpose rather than one which will defeat it.” Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003).

When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Id. (citations omitted). Additionally, “[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.” Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (citation and internal quotation marks omitted).

Kozmina v. Commonwealth, 281 Va. 347, 349–50, 706 S.E.2d 860, 862 (2011).

“It is a cardinal principle of law that penal statutes are to be construed strictly against the [Commonwealth]” and “cannot be extended by implication, or be made to include cases which are not within the letter and spirit of the statute.” Wade v. Commonwealth, 202 Va. 117, 122, 116 S.E.2d 99, 103 (1960). However, “we will not apply ‘an unreasonably restrictive interpretation of the statute’ that would subvert the legislative intent expressed therein.” Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

Upon conviction under Code § 18.2–53.1, a defendant “shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction.” ⁴ Code § 18.2–12.1 defines the phrase “mandatory minimum” as the “impos[ition of] the entire term of confinement, the full amount of the fine and the complete requirement of community service prescribed by law,” such that the trial “court shall not suspend in full or in part any punishment described as mandatory minimum punishment.” However, Code § 18.2–53.1 contains no specification as to the class of the offense or a range within which the trial court may set a maximum term of imprisonment.⁵ In such instances, Code § 18.2–14 provides that “[o]ffenses ... for which punishment is prescribed without specification as to the class of the offense, shall be punished according to the punishment prescribed in the section or sections thus defining the offense.” Because Code § 18.2–53.1 prescribes only a term of imprisonment of three years, application of Code § 18.2–14 provides that the mandatory minimum is the maximum as well. As the Commonwealth points out, this construction is problematic because the phrase “mandatory minimum ” suggests that the trial court has some discretion in imposing a sentence greater than the mandatory term of incarceration. A minimum sets a sentencing floor, not a ceiling. See Carroll v. Johnson, 278 Va. 683, 693, 685 S.E.2d 647, 652 (2009) (requiring the courts to “consider the ordinary and plain meaning of statutory terms”). Thus, on one hand, it appears from the face of the statute that no statutory maximum exists and the trial court has the discretion to sentence a defendant to up to life imprisonment for a conviction of possession of a firearm in the commission of a felony. On the other...