Lamb v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: COLEMAN.
• Citation: Lamb v. Com., 577 S.E.2d 530, 40 Va. App. 52 (Va. App. 2003)
• Decision Date: 11 March 2003
• Docket Number: Record No. 0487-02-1.
• Parties: Franklin Roosevelt LAMB v. COMMONWEALTH of Virginia.

577 S.E.2d 530

40 Va. App. 52

Franklin Roosevelt LAMB v. COMMONWEALTH of Virginia.

Record No. 0487-02-1.

Court of Appeals of Virginia, Chesapeake.

March 11, 2003.

Allan D. Zaleski (Weisberg & Zaleski, P.C., on brief), Norfolk, for appellant. John H. McLees, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: BENTON and ELDER, JJ., and COLEMAN, Senior Judge.

COLEMAN, Judge.

Franklin Roosevelt Lamb appeals an order revoking his probation, sentencing him to serve the remaining portion of his previously suspended sentence and imposing an additional two-year term of post-release supervision pursuant to Code § 19.2-295.2. Lamb does not contest the revocation of his probation, but contends the trial court erred by imposing the additional term of post-release supervision. He asserts that the applicable statutes authorize courts to impose an additional term of supervision only when the court initially imposes sentence, not when it revokes and "reimposes" a suspended sentence. We agree that the trial court erred by imposing an additional term of post-release supervision after Lamb's release from incarceration.

In July 1999, Lamb was convicted of possessing cocaine and sentenced to two years in prison, which sentence the court suspended and placed Lamb on supervised probation. In April 2000, the trial court revoked Lamb's suspended sentence and imposed the two-year sentence, which the court again suspended except for six months. The trial court ordered that Lamb be placed on supervised probation following his release from incarceration. In August 2000, the trial court again revoked Lamb's suspended sentence and imposed the balance of the two-year sentence, which the court again suspended conditioned upon Lamb's completion of a diversion program. The court continued Lamb on supervised probation.

On February 8, 2002, the trial court revoked Lamb's suspended sentence and imposed the balance of the two-year sentence, which was approximately one year and six months. When the trial court revoked the suspended sentence, it also imposed, relying upon Code § 19.2-295.2, an additional two-year term of supervision upon Lamb's release from incarceration.

Code § 19.2-295.2(A) provides in pertinent part:

At the time the court imposes sentence upon a conviction for any felony offense committed (i) on or after January 1, 1995, the court may, and (ii) on or after July 1, 2000, 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.

Lamb argues that the provisions of Code § 19.2-295.2 only authorize courts to impose a term of post-release supervision at the time of the initial conviction. Thus, he asserts, the trial court was without authority under Code § 19.2-295.2 to impose a period of post-release supervision when on February 8, 2002 it revoked his probation and suspended sentence. Lamb contends that revoking a suspended sentence is not "impos[ing] sentence upon a felony conviction," within the express proviso of Code § 19.2-295.2.

The Commonwealth argues that the provision, "at the time the court imposes sentence upon a felony conviction," is not a temporal restriction. Thus a court's authority to "impose a term of post release supervision" is not limited to when the court initially imposes sentence. Instead, the court may impose an additional period of supervision whenever the court "imposes" any part of the original sentence, whether that be when sentence is first pronounced or is later imposed after revoking a suspended sentence.

ANALYSIS

The basic tenets of statutory construction require us to "`ascertain and give effect to legislative [intent,]'" and "`effect rather than defeat a legislative purpose evident from the history of the legislation.'" In so doing, the "plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction . . . ."

Murphy v. Commonwealth, 31 Va.App. 70, 74-75, 521 S.E.2d 301, 303 (1999) (citations omitted). "Probation statutes are highly remedial and should be liberally construed to provide trial courts a valuable tool for rehabilitation of criminals." Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982). "In the absence of legislative history to the contrary, penal statutes are to be strictly construed against the Commonwealth and in favor of the citizen's liberty. `Such statutes cannot be extended by implication or construction, or be made to embrace cases which are not within their letter and spirit.'" O'Banion v. Commonwealth, 33 Va.App. 47, 57, 531 S.E.2d 599, 604 (2000) (en banc) (citations omitted). Moreover, a fundamental rule of statutory construction requires that courts view the entire body of legislation and the statutory scheme "to determine the true intention of each part." McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 (1957).

Code § 19.2-295.2 was enacted as part of the General Assembly's statutory scheme abolishing parole in Virginia. See Summary of S.B. 3001, Abolition of Parole, 1994, 2nd Spec. Sess. (Va. 1994) ("The bill authorizes the court to impose additional terms of between six months and three years for felony offenses . . . . These additional terms will be used for periods of post-release supervision."). As part of this statutory scheme the General Assembly also enacted Code § 18.2-10, which provides, in pertinent part:

For any felony offense committed (i) on or after January 1, 1995, the court

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