PRESENT: Lemons, C.J., Goodwyn, Mims, Powell, Kelsey, and McCullough, JJ., and
Millette, S.J.

AMANDA MARIE THOMAS
                                                             OPINION BY
v. Record No. 170707                               JUSTICE STEPHEN R. McCULLOUGH
                                                            October 18, 2018
COMMONWEALTH OF VIRGINIA


                      FROM THE COURT OF APPEALS OF VIRGINIA

       A jury convicted Amanda Marie Thomas of felony child abuse and neglect and sentenced

her to serve seven years in prison. The trial court imposed a sentence of ten years, and

suspended three of those years upon certain conditions. Thomas contends that the ten-year

sentence imposed by the court does not conform to statutory requirements, specifically Code

§§ 19.2-295 and 19.2-295.2, and that the sentence imposed by the trial court improperly

extended the maximum sentence fixed by the jury. We conclude that the trial court’s sentencing

order, as drafted, does not comply with Virginia law. Therefore, we reverse and remand for

entry of a new sentencing order.

                                         BACKGROUND

       Following her conviction for felony child abuse and neglect, a jury fixed a maximum

sentence of seven years in prison, along with a fine. At a sentencing hearing several months

later, the trial court sentenced Thomas to serve ten years in prison, with three years suspended.

The Court’s order provides as follows:

               The Court SENTENCES the defendant to:

               Incarceration with the Virginia Department of Corrections for
               the term of: Ten (10) years. The total sentence imposed is Ten
               (10) years.

               After Seven (7) years are served, the Court SUSPENDS the
               balance of Three (3) years, upon the following condition(s):
                Supervised Probation. The defendant is placed on probation to
                commence upon her release from incarceration, under the
                supervision of a Probation Officer for Three (3) years, or unless
                sooner released by the court or by the Probation Officer. The
                defendant shall comply with all the rules and requirements set by
                the Probation Officer. Probation shall include substance abuse
                counseling and/or testing as prescribed by the Probation Officer.
                . . . .1

Thomas objected, arguing that the order was not consistent with Virginia’s statutory scheme and

impermissibly exceeded the sentence fixed by the jury. On appeal, a panel of the Court of

Appeals affirmed by unpublished opinion, Thomas v. Commonwealth, Record No. 0437-16-3

(April 25, 2017) and this appeal followed.

                                             ANALYSIS

       Determinations of punishment “are peculiarly questions of legislative policy.” Gore v.

United States, 357 U.S. 386, 393 (1958); DePriest v. Commonwealth, 33 Va. App. 754, 764

(2000) (“It lies within the province of the legislature to define and classify crimes and to

determine the punishments for those crimes.”). A number of interrelated statutes govern

punishment in criminal cases. Code § 19.2-295(A) sets forth some general parameters that

govern a trial court’s sentencing authority. It provides that

                the term of confinement in the state correctional facility or in jail
                and the amount of fine, if any, of a person convicted of a criminal
                offense, shall be ascertained by the jury, or by the court in cases
                tried without a jury.

Code § 19.2-303, in relevant part, provides authority for the court to suspend the sentence fixed

by the jury and for the court to impose probation:

                After conviction, whether with or without jury, the court may
                suspend imposition of sentence or suspend the sentence in whole
                or part and in addition may place the defendant on probation under
                such conditions as the court shall determine . . . .

       1
           The other conditions were to pay court costs and provide a DNA sample.


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The combined effect of these statutes is that “the punishment as fixed by the jury is not final or

absolute, since its finding on the proper punishment is subject to suspension by the trial judge, in

whole or in part, on the basis of any mitigating facts that the convicted defendant can marshal.”

Duncan v. Commonwealth, 2 Va. App. 342, 345 (1986) (internal citation omitted). Subject to

any additional statutory provisions, “[t]he verdict of the jury is the fixing of maximum

punishment which may be served.” Id.

       Prior to the abolition of parole, a felon who was paroled from prison into the community

fell under the supervision of parole authorities for a specified period. See Code § 53.1-159.

Upon the abolition of parole, the General Assembly enacted the complementary provisions of

Code § 19.2-295.2 and Code § 18.2-10 to provide for a period of post incarceration supervision.

       Code § 19.2-295.2 provides that:

               A. At the time the court imposes sentence upon a conviction for
               any felony offense committed . . . [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
               post[-]release 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 post[-]release
               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.

               B. The period of post[-]release supervision shall be under the
               supervision and review of the Virginia Parole Board. The Board
               shall review each felon prior to release and establish conditions of
               post[-]release supervision. Failure to successfully abide by such
               terms and conditions shall be grounds to terminate the period of
               post[-]release supervision and recommit the defendant to the
               Department of Corrections or to the local correctional facility from
               which he was previously released. Procedures for any such
               termination and recommitment shall be conducted in the same
               manner as procedures for the revocation of parole.



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Code § 18.2-10 provides in relevant part:

               For any felony offense committed . . . [the court] shall, except in
               cases in which the court orders a suspended term of confinement of
               at least six months, impose an additional term of not less than six
               months nor more than three years, which shall be suspended
               conditioned upon successful completion of a period of post-release
               supervision pursuant to § 19.2-295.2 and compliance with such
               other terms as the sentencing court may require. However, such
               additional term may only be imposed when the sentence includes
               an active term of incarceration in a correctional facility.

       “The obvious purpose of both the amendment to Code § 18.2-10 and Code § 19.2-295.2

is to provide for a period of at least six months’ supervision after parole was abolished for felons

upon their release from active incarceration.” Lamb v. Commonwealth, 40 Va. App. 52, 57

(2003). Without the addition of Code §§ 18.2-10 and 19.2-295.2, “a felon who would have

served a term of incarceration after the abolition of parole [could be] released into the

community without any supervision.” Id.

       Under Code § 19.2-295.2, when a defendant is sentenced to a “term of confinement” in a

state or local correctional facility, and the court does not suspend at least six months of the term

of confinement, the court must “impose a term of post[-]release supervision of not less than six

months nor more than three years.” This additional term “shall be suspended and the defendant

placed under post[-]release supervision upon release from the active term of incarceration.” Id.

“The period of post[-]release supervision shall be under the supervision and review of the

Virginia Parole Board.” Id. To ensure the efficacy of the post-release supervision, Code

§ 18.2-10 requires the court in that circumstance to also impose an additional term of

confinement of between six months and three years, which is to be suspended and “conditioned

upon successful completion of a period of post-release supervision pursuant to § 19.2-295.2 and

compliance with such other terms as the sentencing court may require.”




                                                  4
       The court had the authority under Code § 19.2-295.2 – indeed, the obligation, once it

determined that the full seven years fixed by the jury had to be served – to impose a separate

additional term of up to three years of post-release supervision, under the supervision and review

of the Parole Board. The court was further required, under the authority of Code § 18.2-10, to

impose a linked suspended term of incarceration.

       The order as written, however, did not specify that the additional time was imposed

pursuant to Code §§ 18.2-10 and 19.2-295.2. Furthermore, the period of post-release supervision

imposed by the trial court was not “under the supervision and review of the Virginia Parole

Board.” Code § 19.2-295.2(B). Conceptually, the purpose of the post-release period of

supervision, and the suspended term of incarceration that accompanies it, is distinct from the

punishment imposed for the commission of a crime. The purpose of post-release supervision is

not punishment. Rather, this period is designed to foster good behavior and rehabilitation upon

release from confinement. Lamb, 40 Va. App. at 57 (noting that Code § 18.2-10 and Code

§ 19.2-295.2 are remedial in nature). See also United States v. Kebodeaux, 570 U.S. 387, 397

(2013) (noting that the “principal purposes of postrelease conditions are to rehabilitate the

convict, thus preventing him from recidivating, and to protect the public”); Griffin v. Wisconsin,

483 U.S. 868, 875 (1987) (“[R]estrictions [imposed by a court] are meant to assure that the

probation serves as a period of genuine rehabilitation and that the community is not harmed by

the probationer’s being at large.”). The court impermissibly lengthened the sentence fixed by the




                                                 5
jury from seven years to ten years, which the Code does not authorize. 2 Sentencing orders must

conform to statutory requirements. 3

                                         CONCLUSION

       We reverse and remand for entry of a sentencing order consistent with this opinion.

                                                                          Reversed and remanded.




       2
          There are some circumstances under which an order like this one could produce an
entirely different outcome than an order that imposes a period of post-release supervision along
with a suspended period of incarceration linked to the period of post-release supervision.
Suppose that a defendant is sentenced under an order like this one and is then released on bail
during the pendency of an appeal. If that defendant misbehaves while out on bail, the court
could revoke the entirety of the suspended period of three years, thus imposing ten years of
active incarceration instead of seven years of active incarceration followed by a period of
post-release supervision. See Collins v. Commonwealth, 269 Va. 141, 146-47 (2005) (because
good behavior is an implied term of every suspended sentence, the trial court could revoke a
portion of the defendant’s suspended sentence when the defendant misbehaved while free on bail
during the pendency of his appeal).
       3
          The length of the term of post-release supervision and of the suspended term of
incarceration fall within the discretion of the trial court. On the guidelines worksheet in this
case, the court indicated that it was imposing a three-year post-release term under Code
§ 18.2-10 and a post-release supervision period of three years pursuant to Code § 19.2-295.2.
Form 10, found in the Appendix of Forms to part 3A of the Rules of this Court, provides a
sample sentencing order consistent with this opinion. One possible format for an order,
consistent with the guidelines worksheet the trial court prepared in this case, would be along the
following lines:

               The Court SENTENCES the defendant to:

               Incarceration with the Virginia Department of Corrections for
               the term of: Seven (7) years. The total sentence imposed is Seven
               (7) years.

In addition to the above sentence of incarceration, pursuant to Code § 18.2-10 and § 19.2-295.2,
the court imposes an additional term of three (3) years of incarceration. This additional
three-year term is suspended, conditioned upon successful completion of a three-year period of
post-release supervision under the supervision of the Virginia Parole Board. The period of
post-release supervision is to commence upon release from incarceration. The defendant shall
comply with all the rules and requirements set by the Virginia Parole Board.



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