Botkin v. Commonwealth

PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey and McCullough, JJ., and
Millette, S.J.
SHAWN LYNN BOTKIN
OPINION BY
v. Record No. 171555 JUSTICE S. BERNARD GOODWYN
November 1, 2018
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal of a judgment from the Court of Appeals, we consider whether the Court of
Appeals erred when it held that multiple mandatory minimum terms of imprisonment, imposed
for multiple convictions under Code § 18.2-308.2(A), are required to be served consecutively.
BACKGROUND
On August 1, 2016, Botkin was indicted by a grand jury of the Circuit Court of Scott
County, for two counts of possession of a firearm within ten years of having been convicted of a
felony, in violation of Code § 18.2-308.2(A). Botkin’s possessions were alleged to have
occurred on two separate occasions in November 2015. Botkin pled guilty to both charges and
the circuit court held a sentencing hearing.
During the sentencing hearing, the Commonwealth argued that under Code § 18.2-
308.2(A), each of Botkin’s convictions was subject to a mandatory minimum sentence of two
years, and that each of those mandatory sentences was required to run consecutively with any
other sentence, including each other. Botkin disagreed and argued that Code § 18.2-308.2(A)
allowed the two mandatory minimum sentences imposed under that statute to run concurrently
with each other.
On March 16, 2017, the circuit court entered an order sentencing Botkin to five years for
each violation of Code § 18.2-308.2(A), with three years suspended on each sentence. The
circuit court ordered that the sentences run concurrently.
The Commonwealth appealed the concurrent sentences to the Court of Appeals, which
reversed the ruling of the circuit court. In a published opinion, Commonwealth v. Botkin, 68 Va.
App. 177 (2017), the Court of Appeals held that
the trial court erred in ordering that the sentences for Botkin’s two convictions
under Code § 18.2-308.2 run concurrently. Accordingly, we reverse the judgment
of the circuit court insofar as it imposes concurrent sentences, vacate the portion
of the order that so provides, and remand for sentencing in conformity with this
opinion. See Graves v. Commonwealth, 294 Va. 196, 221 (2017).
Id. at 182.
Botkin appeals. This Court granted two assignments of error:
1. The Court of Appeals erred when it confined its interpretation of language
in Virginia Code § 18.2-308.2(A) to the phrase “shall be served
consecutively with any other sentence,” instead of the entire sentence
which reads, “The mandatory minimum term of imprisonment prescribed
for violation of this section shall be served consecutively with any other
sentence.”
2. The Court of Appeals erred when it held this case should be remanded to
the circuit court “for sentencing in conformity with [its] opinion,” based
on Graves v. Commonwealth, 294 Va. 196, 805 S.E.2d 226 (2017),
because it is distinguishable from this case.
ANALYSIS
1. Mandatory minimum terms under Code § 18.2-308.2(A)
“Generally, circuit courts have the authority to exercise discretion to run sentences
concurrently.” Brown v. Commonwealth, 284 Va. 538, 542 (2012); see Code § 19.2-308 (“When
any person is convicted of two or more offenses . . . such sentences shall not run concurrently,
unless expressly ordered by the court.”). “[T]his discretionary exercise of authority may be, and
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has been proscribed by the General Assembly when it has directed that sentences for certain
crimes may not be run concurrently.” Brown, 284 Va. at 542. Botkin asserts that Code § 18.2-
308.2(A) did not proscribe the circuit court’s discretion to run his two sentences concurrently.
Under his first assignment of error, Botkin argues that the Court of Appeals erred because
it “focus[ed] on only part of the language in the last sentence of Code § 18.2-308.2(A), instead of
the entire sentence.” He claims that when Code § 18.2-308.2(A) states that the mandatory
minimums “for violations of this section” are to run “consecutively with any other sentence,” the
circuit court still has discretion to run sentences concurrently for multiple violations of Code
§ 18.2-308.2(A). In other words, he asserts that sentences for violations of Code § 18.2-
308.2(A) need only be served consecutively with sentences for violations of other statutes. He
argues that had the legislature intended multiple sentences for multiple violations of Code
§ 18.2-308.2(A) to run consecutively, it “could easily have stated that the mandatory minimum
may not be run concurrently with any other sentence or with any other violation under ‘this
section.’”
The Commonwealth responds that the Court of Appeals did not err because Code § 18.2-
308.2(A) “unambiguously requires that two mandatory minimum sentences be served
consecutively.”
Statutory interpretation presents a question of law that this Court reviews de novo.
Brown, 284 Va. at 542. The primary purpose of statutory interpretation “is to ascertain and give
effect to legislative intent.” Id. (citation and internal quotation marks omitted). This Court
determines legislative intent from the words employed in the statute. Alger v. Commonwealth,
267 Va. 255, 259 (2004).
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“If language is clear and unambiguous, there is no need for construction by the court; the
plain meaning and intent of the enactment will be given it. When an enactment is clear and
unequivocal, general rules for construction of statutes do not apply.” Brown, 284 Va. at 543
(alteration, citation, and internal quotation marks omitted). “While it is true that penal statutes
must be strictly construed against the Commonwealth in criminal cases, we will not apply an
unreasonably restrictive interpretation of the statute that would subvert the legislative intent
expressed therein.” Alger, 267 Va. at 259 (citation and internal quotation marks omitted). This
Court will not “assign a construction that amounts to holding that the General Assembly did not
mean what it actually has stated.” Id. (citation and internal quotation marks omitted).
Under Code § 18.2-308.2(A), it is unlawful for a person with a felony conviction to
possess a firearm:
Any person who violates [Code § 18.2-308.2] by knowingly and intentionally
possessing or transporting any firearm and who was previously convicted of any
other felony within the prior 10 years shall be sentenced to a mandatory minimum
term of imprisonment of two years. The mandatory minimum terms of
imprisonment prescribed for violations of this section shall be served
consecutively with any other sentence.
Code § 18.2-308.2(A) (emphasis added).
“Any” is defined, in part, as “one or some indiscriminately of whatever kind”; “one or
more indiscriminately from all those of a kind”; or “one that is selected without restriction or
limitation of choice.” Webster’s Third New International Dictionary 97 (2002) (emphases
added). “The word ‘any,’ like other unrestrictive modifiers such as ‘an’ and ‘all,’ is generally
considered to apply without limitation.” Sussex Cmty. Servs. Ass’n v. Virginia Soc’y for
Mentally Retarded Children, 251 Va. 240, 243 (1996).
In Brown, this Court interpreted the phrase “shall . . . run consecutively with, any
punishment received for the commission of the primary felony,” to mean that a mandatory
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minimum term imposed pursuant to Code § 18.2-53.1 was required to be run consecutively with
any sentence given for the primary felony, but could be run concurrently with any other
sentence. 1 284 Va. at 543. The relevant language of Code § 18.2-53.1 was distinguished from
the phrase, “to be served consecutively with any other sentence,” found in Code §§ 18.2-
255.2(B) and 18.2-308.1. Id. at 544 (emphasis added). We noted that the phrase used in Code
§§ 18.2-255.2(B) and 18.2-308.1 demonstrates instances in which “the General Assembly has
directed that a mandatory minimum sentence not be run concurrently with any other
punishment.” 2 Id. (emphasis omitted). Because Code § 18.2-53.1 expressly limits its
requirement that sentences run consecutively to sentences received for the primary felony, this
Court concluded that multiple mandatory minimum sentences “imposed pursuant to Code § 18.2-
53.1 may be run concurrently.” Id. at 545.
In the case at bar, however, Code § 18.2-308.2(A) does not limit its requirement that
sentences run consecutively. Unlike Code § 18.2-53.1, Code § 18.2-308.2(A)’s requirement that
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Code § 18.2-53.1 provides, in pertinent part,
Violation of this section shall constitute a separate and distinct felony and any
person found guilty thereof shall be sentenced to a mandatory minimum term of
imprisonment of three years for a first conviction, and to a mandatory minimum
term of five years for a second or subsequent conviction under the provisions of
this section. Such punishment shall be separate and apart from, and shall be made
to run consecutively with, any punishment received for the commission of the
primary felony.
(Emphasis added.)
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Under Code § 18.2-255.2, which prohibits the sale or manufacture of drugs near certain
properties, “[a] second or subsequent conviction hereunder . . . shall be punished by a mandatory
minimum term of imprisonment of one year to be served consecutively with any other sentence.”
Code § 18.2-255.2(B). Similarly, under Code § 18.2-308.1, prohibiting the possession of a
firearm on school property, the use or display of the weapon in a threatening manner is subject to
“a mandatory minimum term of imprisonment of five years to be served consecutively with any
other sentence.” Code § 18.2-308.1(C).
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mandatory minimum sentences be served consecutively applies, without limitation, to “any other
sentence” imposed. The plain meaning of “any other sentence” is one or more remaining
sentences, “without limitation or restriction,” thereby including another mandatory minimum
sentence received pursuant to Code § 18.2-308.2(A). In other words, “any” means “any.”
To give the statute Botkin’s preferred construction would require this Court to read “any
other sentence” as “any other sentence, other than the mandatory minimums imposed under this
Code section,” and this Court cannot construe a statute to mean what it does not state. As we
stated in Brown, “any other sentence” indicates a legislative intent that “a mandatory minimum
sentence not be run concurrently with any other punishment.” 284 Va. at 544 (emphasis
omitted).
Because Code § 18.2-308.2(A) requires that mandatory minimum sentences run
consecutively, and does not limit that requirement, the ruling of the Court of Appeals that the
mandatory minimum sentences for Botkin’s two convictions for violating Code § 18.2-308.2(A)
must be served consecutively, is affirmed.
2. Remand for new sentencing based on Graves
Under his second assignment of error, Botkin argues the Court of Appeals erred when it
“remanded this case to the circuit court to impose two consecutive sentences” based on Graves.
He argues that Graves is distinguishable because that decision analyzed Code § 18.2-53.1, and
not Code § 18.2-308.2(A), and found Code § 18.2-53.1 to be ambiguous and an anomaly. Botkin
asks this Court to “reverse the decision of the Court of Appeals to remand this case to the circuit
court ‘pursuant to one of two mandatory minimum terms,’” and to affirm the circuit court’s
decision to run his sentences concurrently.
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In 2009, this Court adopted the following rule of law to “ensure that all criminal
defendants whose punishments have been fixed in violation of the prescribed statutory ranges are
treated uniformly without any speculation”:
[A] sentence imposed in violation of a prescribed statutory range of punishment is
void ab initio because the character of the judgment was not such as the [C]ourt
had the power to render. Thus, a criminal defendant in that situation is entitled to
a new sentencing hearing. This common law rule of jurisprudence will eliminate
the need for courts to resort to speculation when determining how a jury would
have sentenced a criminal defendant had the jury been properly instructed or had
the jury properly followed correct instructions.
Rawls v. Commonwealth, 278 Va. 213, 221 (2009) (citations and internal quotation marks
omitted) (second alteration in original). This rule likewise applies in bench trials where the
sentence imposed exceeds statutory limits. See Grafmuller v. Commonwealth, 290 Va. 525, 529-
30 (2015) (noting Rawls’s adoption of a new common law rule); see also Burrell v.
Commonwealth, 283 Va. 474, 480 (2012) (holding that an ultra vires provision of the sentencing
order rendered the entire sentence void ab initio, and remanding for resentencing because the
Court “decline[d] to engage in speculation as to what would have happened had the parties and
the court known that the court did not have the power to render part of [the] sentence”).
Further, “[t]he authorities are unanimous in the view that a court may impose a valid
sentence in substitution for one that is void, even though the execution of the void sentence has
commenced.” Carter v. Commonwealth, 199 Va. 466, 469-70 (1957) (citation and internal
quotation marks omitted).
In Graves, upon determining that the defendant’s sentence was void, we remanded the
case “for entry of a new sentencing order.” 294 Va. at 208. This Court recognized that under
Rawls, a defendant is generally entitled to a new sentencing hearing when the sentence imposed
violates the statutorily prescribed range of punishment. Id. Nonetheless, because the defendant
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was convicted under Code § 18.2-53.1, pursuant to which “a three-year fixed term of
confinement is the only sentence available,” we found a new sentencing hearing unnecessary and
remanded for a new sentencing order entered in conformity with the opinion. Id.
Here, however, Code § 18.2-308.2(A) does not prescribe a fixed term of confinement.
Because the circuit court imposed sentences that were “in violation of [the] prescribed statutory
range” when it ordered Botkin’s sentences be served concurrently instead of consecutively, the
sentences were “not such as the [circuit court] had the power to render,” and are void ab initio.
Rawls, 278 Va. at 221. To avoid speculation as to how the circuit court would have sentenced
Botkin had it correctly interpreted Code § 18.2-308.2(A), Botkin is entitled to a new sentencing
hearing on both sentences upon remand.
CONCLUSION
The judgment of the Court of Appeals is affirmed as to its interpretation of Code § 18.2-
308.2(A). Mandatory minimum terms of confinement ordered pursuant to Code § 18.2-308.2(A)
must run consecutively with any other sentence, including other mandatory minimum terms
ordered pursuant to Code § 18.2-308.2(A). Because Botkin’s sentences were run concurrently,
we will vacate those sentences and remand this case to the Court of Appeals with direction to
remand to the Circuit Court of Scott County for resentencing consistent with this Court’s
opinion.
Affirmed and remanded.
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