                              COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Kelsey and Alston
Argued at Richmond, Virginia


TERRA NYREE HINES
                                                                      OPINION BY
v.     Record No. 0228-11-2                                      JUDGE LARRY G. ELDER
                                                                   FEBRUARY 14, 2012
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                             Harold W. Burgess, Jr., Judge

               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.


       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


       1
        Code § 18.2-53.1 provides a “mandatory minimum” of three years for a first conviction
and “a mandatory minimum term of five years for a second or subsequent conviction.”
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




       2
        The parties and the trial court noted that the recommended sentencing range was high
because appellant had a contemporaneous conviction in Henrico County for robbery. Appellant
was convicted in that case on August 18, 2010. The trial court noted that had appellant been
sentenced in the Chesterfield County circuit court, the sentence range would have been lower.
       3
        In the sentencing order, the trial court noted that “3 years is the minimum mandatory
sentence” for the use of a firearm conviction.
                                                -2-
       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)).

                                                 -3-
       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
                                                -4-
               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




       4
         Code § 18.2-53.1 also provides that a defendant shall be sentenced “to a mandatory
minimum term of five years for a second or subsequent conviction under the provisions of this
section.” Because it is undisputed that appellant has only one conviction of use of a firearm in
the commission of a felony, we refer only to the applicable mandatory minimum term of three
years imprisonment.

                                                -5-
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 hand, application of Code § 18.2-14 would seem to indicate that the trial court may

impose only a three or five-year term of incarceration. To resolve this ambiguity in the statutory

language, we turn to the history of Code § 18.2-53.1 to determine the General Assembly’s intent.


       5
         Ordinarily, this Court will harmonize the mandatory minimum sentence contained
within a statute with the range of punishment authorized by its class specification under Code
§ 18.2-10. For example, Code § 18.2-308.2(A) criminalizes the “knowing[] and intentional[]”
possession of a firearm by “any person who has been convicted of a felony.” That code section
prescribes a mandatory minimum sentence of five years if the defendant had been previously
convicted of a violent felony and a mandatory minimum sentence of two years for all other
felonies. Id. “Since a violation of Code § 18.2-308.2(A) is a Class 6 felony punishable under
Code § 18.2-10 by a term of imprisonment between one and five years, the mandatory minimum
sentence for a defendant convicted of possession of a firearm after a previous violent felony
conviction equals the statutory maximum sentence.” Rawls v. Commonwealth, 272 Va. 334,
347-48, 634 S.E.2d 697, 703 (2006). Conversely, “a defendant who was previously convicted of
any felony other than one designated as a violent felony under Code § 17.1-805 is subject to a
sentence of a term of imprisonment of two years (the mandatory minimum) to five years (the
maximum).” Id. at 348, 634 S.E.2d at 704; see, e.g., Mouberry v. Commonwealth, 39 Va. App.
576, 584, 575 S.E.2d 567, 570-71 (2003).
                                               -6-
       The General Assembly enacted Code § 18.2-12.1 in 2004 as part of an extensive overhaul

of those statutes prescribing mandatory punishments. See 2004 Va. Acts, c. 461, at 674. In the

same bill, the General Assembly amended twenty-five other statutes “to make the language used

in those sections consistent with the new statutory definition of ‘mandatory minimum’ set forth

in Code § 18.2-12.1 and to make other minor editorial corrections where necessary.” Bullock v.

Commonwealth, 48 Va. App. 359, 376-77, 631 S.E.2d 334, 343 (2006). Each of the other

statutes affected by the 2004 amendment that proscribe criminal conduct contains either a class

specification or a range of punishment. See Code §§ 4.1-305; 18.2-36.1; 18.2-51.1; 18.2-57;

18.2-121; 18.2-154; 18.2-248; 18.2-248.01; 18.2-248.1; 18.2-248.5; 18.2-255; 18.2-255.2;

18.2-270; 18.2-308.1; 18.2-308.2; 18.2-308.2:2; 18.2-308.4; 19.2-120; 30-19.1:4; 46.2-301;

46.2-341.28; 46.2-357; 46.2-391; 53.1-203. In fact, the sentencing ranges and class

specifications of these statutes existed prior to the 2004 amendment. As we previously

mentioned above, Code § 18.2-53.1 is unique in that it contains neither a sentencing range nor a

class specification.

       We do not share the Commonwealth’s concern that interpreting Code § 18.2-53.1 to

authorize only a three or five-year term of incarceration would render the inclusion of the term

“mandatory minimum” superfluous. As we have previously noted, “the General Assembly did

not intend, in enacting House Bill 1059, to substantively change the existing scope of Code

§ 18.2-53.1.” 6 Bullock, 48 Va. App. at 377, 631 S.E.2d at 343. Prior to 2004, Code § 18.2-53.1


       6
          Contrary to the dissent’s view that our “truncated” interpretation of Bullock takes its
holding out of context, that decision provides useful guidance in interpreting the underlying
purpose of the 2004 amendment. In Bullock, the defendant argued that when the 2004
amendment omitted the “Notwithstanding any other provision of law” clause, the General
Assembly implicitly authorized “the courts to apply the sentencing provisions of Code
§ 16.1-272(A)(1)(iii) to suspend any part, if not all, of a juvenile offender’s mandatory minimum
sentence for a use of a firearm conviction.” Bullock, 48 Va. App. at 373, 631 S.E.2d at 341. We
rejected that view because “the legislative background of the 2004 amendment of Code
§ 18.2-53.1 clearly demonstrates that the amendment to Code § 18.2-53.1 was not a ‘change[] of
                                                -7-
mandated that “any person found guilty thereof shall be sentenced to a term of imprisonment of

three years for a first conviction” and that “the sentence prescribed for a violation of the

provisions of this section shall not be suspended in whole or in part.” 1993 Va. Acts c. 835; see

In re Commonwealth, 229 Va. 159, 163, 326 S.E.2d 695, 698 (1985) (noting that “by prescribing

a mandatory sentence, the General Assembly has divested trial judges of all discretion respecting

punishment”). Implicitly granting a trial court the power to impose a life sentence under a

statute that previously mandated only a three or five-year sentence would constitute a significant

change. Had the General Assembly wished to increase the range of punishment and grant the

trial court discretion in sentencing a defendant for a conviction of use of a firearm in the

commission of a felony, it could have done so.

       Indeed, Code § 30-19.1:4, which was also amended by the 2004 amendment, requires the

Commission to “prepare a fiscal impact statement reflecting the operating costs attributable to

and necessary appropriations for any bill which would result in a net increase in period of

imprisonment in state adult correctional facilities.” Code § 30-19.1:4(A). “The requirement for

a fiscal impact statement includes . . . those bills which . . . impose minimum or mandatory

minimum terms of imprisonment or commitment.” Code § 30-19.1:4(C). In other words, any



substance, which add[ed] rights to, or withdr[e]w existing rights from, an original act,’ but rather
a ‘change[] of form, which merely interpreted’ the existing law.” Id. at 375, 631 S.E.2d at 342
(quoting Boyd v. Commonwealth, 216 Va. 16, 20, 215 S.E.2d 915, 918 (1975) (per curiam)).
We stated repeatedly throughout the opinion “that the underlying purpose of the amendments set
forth in House Bill 1059 was not to make substantive changes to the existing Code sections that
required or referred to mandatory penalties.” Id. at 376, 631 S.E.2d at 343. Indeed, the 2004
amendment was “enacted in response to recommendations by the Virginia State Crime
Commission,” which “recommended amendments throughout the Virginia Code to use
consistent language when describing mandatory minimum criminal sentences.” Id. at 376, 631
S.E.2d at 342-43 (citation omitted). The exhaustive analysis in Bullock makes clear that
substantive changes—such as allowing for the possibility of life imprisonment where none
previously existed, as the dissent suggests—is not the purpose of the 2004 amendment. Much
like the defendant in Bullock, the dissent is advocating the use of the 2004 amendment to
significantly rewrite Code § 18.2-53.1, which is precisely what Bullock cautions against.

                                                 -8-
introduced bill that would result in additional incarceration must include a second enactment

clause on the face of the bill setting forth the amount calculated by the Commission. Obviously,

an amendment that was intended to increase the term of incarceration from a fixed mandatory

term of three years to a potential life imprisonment would impact the operating costs of housing

inmates and would require a fiscal impact statement in the bill. See, e.g., S. 1082, 2011 Sess.

(Va. 2011); H.D. 889, 1994 Sess. (Va. 1994) (amending Code §§ 18.2-57 and -121). However,

House Bill 1059, as introduced, did not include such a fiscal impact statement, nor were

additional funds appropriated to pay for the additional costs. See Code § 30-19.1:4(H).

Accordingly, despite the ambiguous term “mandatory minimum,” we conclude that the General

Assembly’s insertion of that phrase and its decision not to specify the class of the felony amounts

to a mere legislative oversight and not an intention to substantively change the range of

punishment for conviction under Code § 18.2-53.1. Accord Schwartz v. Commonwealth, 267

Va. 751, 754-55, 594 S.E.2d 925, 927 (2004) (recognizing that a “literal construction of [Code

§ 18.2-81] would improperly yield an absurd result” because it “‘could be construed as

permitting a separate arson prosecution for every item destroyed in a home or car’” (quoting

Schwartz v. Commonwealth, 41 Va. App. 61, 77, 581 S.E.2d 891, 899 (2003) (Fitzpatrick, C.J.,

concurring)).

       The dissent asserts the majority is inventing a “manifest absurdity” where none exists.

Citing extensively to federal case law and law from other states, the dissent posits that “[i]t is not

at all ‘bizarre’ for a legislature to enact a mandatory minimum sentence and ‘decline to state a

maximum.’” Infra at 16 (quoting United States v. Turner, 389 F.3d 111, 120 (4th Cir. 2004)).

However, “‘interpret[ing] [such a] statute as intending to authorize a maximum of life

imprisonment’” is only “self-evident,” Turner, 389 F.3d at 120 (quoting Walberg v. United

States, 763 F.2d 143, 148 (2d Cir. 1985) (first alteration added)), because “[t]here are many laws

                                                 -9-
. . . upon the statute books of the Federal Government, as well as of the various states, fixing a

minimum sentence and leaving it within the power of the court to fix the maximum sentences,”

Binkley v. Hunter, 170 F.2d 848, 849 (10th Cir. 1948). By contrast, every other penal statute

enacted by the General Assembly contains a maximum punishment range within the statute itself

or by virtue of its class specification, thereby leaving no discretion to impose a life sentence

unless specifically authorized. Because Virginia does not follow the established practice of those

jurisdictions, the dissent’s reliance on federal and state jurisprudence provides little persuasive

value in the instant matter. See Moore v. Warren, 250 Va. 421, 423-24, 463 S.E.2d 459, 460

(1995) (rejecting the petitioner’s reliance on case law from other jurisdictions to interpret

charitable immunity “[b]ecause the status of charitable immunity and the theories upon which it

is based vary greatly from jurisdiction to jurisdiction”).

       Consistent with the dissent, we recognize and respect the good judgment of our trial

judges to avoid immoderate results in cases. Here, however, ambiguity or uncertainty exists in

the language of the statute, lending itself to potentially inconsistent applications. Accordingly, in

consideration of the analysis advanced by the Attorney General and the historical framework of

this and related criminal provisions, we believe that the majority interpretation accomplishes the

objectives of the legislative scheme. Had the General Assembly only amended Code § 18.2-53.1

to include the phrase “mandatory minimum,” we would be compelled to conclude the General

Assembly intended to substantially change the range of punishment available under the statute.

Instead, the legislature amended a broad range of statutes that included mandatory sentences. As

the dissent correctly notes, these statutes expressly provide for maximum sentences. However,

the General Assembly did not cap these punishments as part of the 2004 amendment. Instead,

the “mandatory minimum” language was inserted “to make the language used in those sections

consistent with the new statutory definition of ‘mandatory minimum’ set forth in Code

                                                - 10 -
§ 18.2-12.1.” Bullock, 48 Va. App. at 376, 631 S.E.2d at 343. The dissent ignores the guidance

in Bullock that recognizes the limited scope of the 2004 amendment and would create a life

sentence crime where no class for the felony is provided for in the criminal statute.

        Because appellant has demonstrated error as to the imposition of a ten-year term of

incarceration, we must determine whether affirming that sentencing order “‘would result in a

grave injustice.’” Howard, 281 Va. at 462, 706 S.E.2d at 889 (quoting Gheorghiu, 280 Va. at

689, 701 S.E.2d at 413-14). “Where the sentence imposed is in excess of that prescribed by law,

that part of the sentence which is excessive is invalid.” Deagle v. Commonwealth, 214 Va. 304,

305, 199 S.E.2d 509, 510 (1973). “Denying [a defendant] his liberty on the basis of a void

sentence would impose a grave injustice upon him[, and t]he application of the ends of justice

exception is, therefore, fully justified.” Charles v. Commonwealth, 270 Va. 14, 20, 613 S.E.2d

432, 435 (2005). Here, the trial court sentenced appellant to a term of incarceration of ten years.

Because we hold that Code § 18.2-53.1 authorizes the imposition of only a three-year mandatory

term of incarceration, the seven-year excess is invalid. Thus, the ends of justice exception

applies, and Rule 5A:18 does not bar our consideration of appellant’s argument that her sentence

for the use of a firearm conviction exceeded the statutory maximum.

        For these reasons, we hold that the trial court erred in sentencing appellant to a ten-year

term of incarceration and remand with instructions for entry of an order consistent with this

opinion. 7




        7
         Ordinarily, “a criminal defendant . . . is entitled to a new sentencing hearing” where “a
sentence [is] imposed in violation of a prescribed statutory range of punishment.” Rawls, 278
Va. at 221, 683 S.E.2d at 549. However, because a term of three years imprisonment is the only
available sentence for the trial court to impose, a new sentencing hearing is unnecessary. See,
e.g., Dargan v. Commonwealth, 27 Va. App. 495, 499, 500 S.E.2d 228, 230 (1998) (affirming
where the trial court deleted the excessive portion of an invalid sentence). Accordingly, we need
not remand for a new sentencing hearing.
                                                - 11 -
                                                 B.

                            IMPOSITION OF ACTIVE SENTENCE

       Appellant next argues the trial court erred in sentencing her to a thirteen-year active

sentence for the robbery convictions in light of the mitigating evidence she presented at the

sentencing hearing. Although appellant acknowledges “the trial court sentenced [her] within the

statutory maximum allowable sentence” for the robbery convictions, she nevertheless contends

her evidence “should have resulted in a lower sentence.”

       “When a statute prescribes a maximum imprisonment penalty and the sentence does not

exceed that maximum, the sentence will not be overturned as being an abuse of discretion.”

Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977); see, e.g., Fortune v.

Commonwealth, 12 Va. App. 643, 651, 406 S.E.2d 47, 51 (1991). Code § 18.2-58 sets the range

of punishment for robbery at “life or any term not less than five years.” Here, the trial court

sentenced appellant to twenty years incarceration for each of the robbery convictions and

suspended fifteen years of each sentence. Further, upon entry of an order consistent with the

views expressed in this opinion, the three years of active incarceration originally imposed will

remain in full force and effect. The trial court’s sentences in this case were therefore within the

statutory limits for robbery, and we find no evidence of an abuse of discretion.

                                                III.

                                          CONCLUSION

       Because Code § 18.2-53.1 does not contain a maximum range of punishment or a

specification of the class of the offense, we hold a trial court may sentence a defendant only to a

mandatory term of imprisonment of three years for the first conviction or a mandatory term of

imprisonment of five years for a second or subsequent conviction. Furthermore, an independent

review of the history of Code § 18.2-53.1 and the 2004 amendment compels this Court to accept

                                               - 12 -
the Commonwealth’s concession that the statute prescribes only a three-year mandatory sentence

for a first offense. The trial court therefore erred in sentencing appellant to a ten-year term of

incarceration. Further, the trial court did not err in imposing an active incarceration sentence of

thirteen years because the sentence fell within the statutory limits for robbery. For these reasons,

we affirm in part, reverse in part, and remand with instructions.

                                                                                   Affirmed in part,
                                                                                    reversed in part,
                                                                                      and remanded
                                                                                   with instructions.




                                                - 13 -
Kelsey, J., dissenting in part.

        Code § 18.2-53.1 establishes a “mandatory minimum” term of imprisonment — not a

mandatory maximum. Because the statute sets no upper limit to the potential term of

imprisonment, there is no statutory limit. The trial court, therefore, did not err by imposing a

ten-year sentence, with seven years suspended, for Hines’s violation of Code § 18.2-53.1.

                                  I. MINIMUM MEANS MINIMUM

        In 2004, the General Assembly amended the felony-firearm statute. “As a general rule, a

presumption exists that a substantive change in law was intended by an amendment to an

existing statute.” Commonwealth v. Bruhn, 264 Va. 597, 602, 570 S.E.2d 866, 869 (2002)

(citations omitted). That presumption holds true here. The earlier version of Code § 18.2-53.1

authorized a fixed “term of imprisonment” of three years (for the first offense) or five years (for

subsequent offenses) that could not be suspended in whole or in part. The 2004 amendment

added “mandatory minimum” to qualify the “term of imprisonment.” 2004 Va. Acts ch. 461

(effective July 1, 2004).

        The phrase “mandatory minimum” — when used in scores of other criminal statutes —

means the minimum unsuspendable sentence at the lowest point of a statutory sentencing range. 8

This is perfectly sensible. A minimum implies a maximum. Both words logically presuppose a

range of options starting with one and ending with the other. 9


        8
         See, e.g., Code §§ 3.2-4212; 4.1-305; 15.2-1812.2; 16.1-253.2; 18.2-36.1; 18.2-36.2;
18.2-46.3:3; 18.2-51.1; 18.2-57; 18.2-60.4; 18.2-61; 18.2-67.1; 18.2-67.2; 18.2-121; 18.2-154;
18.2-186.4; 18.2-248; 18.2-248.01; 18.2-248.03; 18.2-248.1; 18.2-248.5; 18.2-255; 18.2-255.2;
18.2-266.1; 18.2-270; 18.2-308.1; 18.2-308.2:2; 18.2-374.1; 18.2-374.1:1; 18.2-374.3; 46.2-301;
46.2-341.28; 46.2-357; 46.2-391; 46.2-865.1; 53.1-203.
        9
         In every instance where the legislature has chosen to do otherwise — by capping the
punishment at the mandatory minimum sentence — it has done so expressly. See Code
§§ 18.2-308.2(A) (possessing firearm after conviction of violent felony punished as Class 6
felony (up to five years imprisonment), with a five-year mandatory minimum); 18.2-308.4(C)

                                               - 14 -
       Faithful to the textualist approach to statutory interpretation, Virginia courts presume “the

legislature ‘chose, with care,’ the specific words of the statute.” Va. Emp’t Comm’n v. Cmty.

Alts., Inc., 57 Va. App. 700, 706, 705 S.E.2d 530, 533 (2011) (citation omitted). Consequently,

we cannot “subtract from the words used in the statute,” Posey v. Commonwealth, 123 Va. 551,

553, 96 S.E. 771, 771 (1918), but must give “reasonable effect to every word used,” Riverside

Owner, L.L.C. v. City of Richmond, 282 Va. 62, 69, 711 S.E.2d 533, 537 (2011) (citation

omitted and emphasis added); Antisdel v. Ashby, 279 Va. 42, 48, 688 S.E.2d 163, 166 (2010).

Each word of a statute should be given its “common, ordinary and accepted understanding.”

Cmty. Alts., Inc., 57 Va. App. at 706, 705 S.E.2d at 533 (citation omitted).

       The common, ordinary, and accepted understanding of the word “minimum” means

minimum — not maximum. To me, the analysis begins and ends there. Like Justice Eggleston,

I believe it “is our duty to interpret the statute as written and when this is done our responsibility

ceases.” Lynchburg v. Suttenfield, 177 Va. 212, 221, 13 S.E.2d 323, 326 (1941); see also

Continental Baking Co. v. Charlottesville, 202 Va. 798, 805, 120 S.E.2d 476, 480 (1961). The

one canon of construction that precedes all others is that “courts must presume that a legislature

says in a statute what it means and means in a statute what it says there.” Arlington Cent. Sch.

Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (citation omitted). “We can only

administer the law as it is written.” Uninsured Emp’rs Fund v. Wilson, 46 Va. App. 500, 506,

619 S.E.2d 476, 479 (2005) (quoting Coalter v. Bargamin, 99 Va. 65, 71, 37 S.E. 779, 781

(1901)).




(possessing firearm while possessing certain drugs with the intent to distribute punished as Class
6 felony (maximum five years imprisonment), with a five-year mandatory minimum); 46.2-1110
(misdemeanor conviction and fine of $1,000 and $2,500 for subsequent offenses, imposed as a
mandatory minimum).
                                              - 15 -
       Seeking to rebut the presumption that the 2004 amendment changed the law by replacing

a fixed term of imprisonment with a mandatory minimum term of imprisonment, Hines correctly

points out that Code § 18.2-53.1 does not state a maximum prison term — either by specifically

stating an upper limit or by incorporating a maximum term from the classification of felonies

found in Code § 18.2-10. Hines finds this omission anomalous because, read literally, Code

§ 18.2-53.1 authorizes life imprisonment. This anomaly, Hines reasons, empowers us to blue-

pencil the statute, leaving “mandatory” but excising “minimum” from the 2004 amendment. For

several reasons, I am unwilling to do so.

       To begin with, what Hines views as a legal anomaly is actually settled law. It is not at all

“bizarre” for a legislature to enact a mandatory minimum sentence and “decline to state a

maximum.” United States v. Turner, 389 F.3d 111, 120 (4th Cir. 2004); see also Ex parte

Robinson, 474 So. 2d 685, 686 (Ala. 1985) (“Our research reveals many statutes, both federal

and state, which fix a minimum penalty for an offense but which fail to prescribe a maximum

penalty.”). When legislatures impose only a “minimum sentence” they leave “it within the

power of the court to fix the maximum sentences.” Turner, 389 F.3d at 120 (quoting Binkley v.

Hunter, 170 F.2d 848, 849 (10th Cir. 1948)). In short, these statutes impose “a mandatory

minimum sentence, not a mandatory maximum sentence.” United States v. Lego, 855 F.2d 542,

546 (8th Cir. 1988). More than a few courts have found this principle “so self-evident as to not

need explanation.” Turner, 389 F.3d at 120.

       In such cases, federal and state courts uniformly hold that “in the absence of a statutory

maximum penalty, the maximum penalty when a term of not less than a certain number of years

is provided, means that the maximum is life imprisonment.” United States v. Sias, 227 F.3d 244,

247 (5th Cir. 2000); see also Ex parte Robinson, 474 So. 2d at 686. This conclusion merely

reflects the “sensible rule of statutory construction whereby the absence of a specified maximum

                                              - 16 -
simply means that the maximum is life imprisonment.” Turner, 389 F.3d at 120. The mandatory

minimum provision, after all, “is designed to serve as the floor, not the ceiling” for criminal

sentences. Sias, 227 F.3d at 247. 10

       A multitude of courts recognize that the minimum-means-minimum principle applies to

felony-firearm statutes no less than any other criminal statute. Id. 11 The majority cites no cases

suggesting otherwise, and I am unaware of any. Nor am I persuaded by the majority’s cursory

dismissal of this unbroken line of federal and state cases on the ipse dixit that they have little in

common with our case. Ante at 9. Because the legal issue is the same, they have everything in

common. Neither Hines nor the majority, therefore, can shoulder the burden of rebutting the

presumption that the 2004 amendment effected a “substantive change in law,” Bruhn, 264 Va. at

602, 570 S.E.2d at 869 (citations omitted), by replacing a fixed term of imprisonment to a

mandatory minimum term of imprisonment.




       10
          See United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir. 1991); United States v.
Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987); see also Ex parte Robinson, 474 So. 2d 685, 686
(Ala. 1985); State v. Stephens, 507 S.W.2d 18, 22 (Mo. 1974); State v. Turnbow, 466 P.2d 100,
101 (N.M. 1970); State v. Sisneros, 464 P.2d 924, 925 (N.M. Ct. App. 1970).
       11
           United States v. Ortiz-Garcia, 492 F.3d ___, 2011 U.S. App. LEXIS 24204, at *13-14
(1st Cir. Dec. 7, 2011); United States v. Rozier, 598 F.3d 768, 772 (11th Cir. 2010); United
States v. Shabazz, 564 F.3d 280, 289 (3d Cir. 2009); United States v. Johnson, 507 F.3d 793, 798
(2d Cir. 2007); United States v. Gamboa, 439 F.3d 796, 811 (8th Cir. 2006); United States v.
Dare, 425 F.3d 634, 642 (9th Cir. 2005); United States v. Weems, 322 F.3d 18, 26 (1st Cir.
2003); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir. 2002); United States v. Cristobal,
293 F.3d 134, 147 (4th Cir. 2002); United States v. Harrison, 272 F.3d 220, 225-26 (4th Cir.
2001); United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000); United States v. Brame,
997 F.2d 1426, 1428 (11th Cir. 1993); United States v. Fields, 923 F.2d 358, 362 (5th Cir. 1991),
overruled on other grounds by United States v. Lambert, 984 F.2d 658, 662 (5th Cir. 1993) (en
banc); United States v. Tisdale, 921 F.2d 1095, 1100 (10th Cir. 1990); United States v. Alvarez,
914 F.2d 915, 919 (7th Cir. 1990), superseded on other grounds by Stinson v. United States, 508
U.S. 36, 47 (1993); United States v. Williams, 892 F.2d 296, 304 (3d Cir. 1989), superseded on
other grounds by Stinson, 508 U.S. at 47; United States v. Blannon, 836 F.2d 843, 845 (4th Cir.
1988); United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987); Walberg v. United States,
763 F.2d 143, 148-49 (2d Cir. 1985); State v. Norton, 949 S.W.2d 672, 678 (Mo. Ct. App. 1997);
State v. Fulks, 173 S.E. 888, 889 (W. Va. 1933). Accord supra n.10.
                                               - 17 -
                                II. THE BULLOCK DIGRESSION

       The one case the majority does rely upon, Bullock v. Commonwealth, 48 Va. App. 359,

631 S.E.2d 334 (2006), is neither dispositive nor particularly relevant. Bullock held the 2004

amendment to Code § 18.2-53.1 did not supersede our prior caselaw interpreting the statute to

forbid judicial suspension of mandatory sentences. The majority, however, quotes Bullock for a

far broader proposition: “As we have previously noted, ‘the General Assembly did not intend, in

enacting [the 2004 amendment], to substantively change the existing scope of Code § 18.2-53.1.’

Bullock, 48 Va. App. at 377, 631 S.E.2d at 343.” Ante at 7.

       The majority, however, quotes only half of the pertinent sentence from Bullock. The

omitted half includes an important qualification. The full sentence from Bullock reads: “Plainly,

then, the General Assembly did not intend, in enacting [the 2004 amendment], to substantively

change the existing scope of Code § 18.2-53.1 to permit suspension under Code § 16.1-

272(A)(1)(iii) of the mandatory sentences required by Code § 18.2-53.1.” Bullock, 48 Va. App.

at 377, 631 S.E.2d at 343 (emphasis added). The truncated quote attributed by the majority to

Bullock has been taken out of context. And, taken in context, Bullock adds nothing to the issue

before us in this case.

       In a footnote, ante at 7-8 n.6, the majority seeks to rehabilitate its incomplete quote from

Bullock by attempting to connect the holding in that case — concluding that the 2004

amendments to Code § 18.2-53.1 did not change existing law forbidding suspension of a

mandatory sentence — to the broader revisions proposed by the Virginia State Crime

Commission prior to the 2004 amendments. The connection in Bullock made sense because the

Commission had repeatedly emphasized that mandatory sentences could not be suspended.

Here, the connection makes no sense because the issue is entirely different. The question in our




                                              - 18 -
case is not whether a mandatory sentence can be suspended, but whether an unsuspendable

mandatory minimum sentence is truly a minimum sentence.

       Nothing in the Commission’s recommendations suggested a mandatory minimum

sentence, standing alone, should be interpreted as a maximum sentence. See Virginia State

Crime Commission Report, House Doc. No. 15, at 5 (2004), available at http://leg2.state.va.us/

dls/h&sdocs.nsf/By+Year/HD152004/$file/HD15_2004.pdf. Though the Commission’s report

recommended dozens of statutory changes, see id., Part II at 1-7, Part V at 32-41, none

mentioned Code § 18.2-53.1. If anything, the legislative history shows just the opposite of what

the majority assumes. During the 2004 session, the General Assembly defeated two bills seeking

to amend Code § 18.2-53.1 while leaving intact the prior language mandating fixed terms of

imprisonment. See House Bill No. 1053H1 (substitute offered Feb. 13, 2004); House Bill No.

377 (offered Jan. 14, 2004). Taking a different approach, the General Assembly replaced the

fixed terms of the pre-2004 version of Code § 18.2-53.1 with new “mandatory minimum” terms

of imprisonment. See 2004 Va. Acts ch. 461 (effective July 1, 2004).

                            III. THE LARGER STATUTORY CONTEXT

       Equally unconvincing is the majority’s reliance on Code § 18.2-14, which merely states

that unclassified felonies should be punished “according to the punishment prescribed in the

section or sections thus defining the offense.” I do not understand what this adds to the analysis.

Code § 18.2-53.1 enacts an unclassified felony. So, under Code § 18.2-14, we look solely to

Code § 18.2-53.1 (rather than Code § 18.2-10’s felony punishment classifications) to determine

the sentence to be imposed. But this tells us nothing about what Code § 18.2-53.1 means by

imposing a “mandatory minimum term of imprisonment.” Code § 18.2-14 begs, but does not

answer, the question before us.



                                               - 19 -
        Along the same lines, I see no interpretative relevance to Code § 18.2-12.1, which

confirms existing law that a “mandatory minimum” sentence cannot be suspended in full or in

part. This provision merely states what we already know: The mandatory minimum terms of

imprisonment in Code § 18.2-53.1 cannot be suspended. See Bullock, 48 Va. App. at 377, 631

S.E.2d at 343. A sentence above the minimum, of course, can be, and often is, suspended. If

Code § 18.2-12.1 really meant for a “mandatory minimum” term to be a “mandatory maximum”

term, it would be in conflict with a myriad of statutes imposing an unsuspendable “mandatory

minimum” term of imprisonment while simultaneously authorizing a higher, entirely

suspendable, maximum term. See supra at 14 n.8.

                      IV. PLAIN MEANING & STATUTORY ABSURDITY

        I also question Hines’s underlying assumption, apparently shared by the majority, that the

sheer possibility of a life sentence for violating Code § 18.2-53.1 would be a manifest absurdity.

Ante at 9. Working from the statutory text, Virginia courts “strive to give that language a ‘literal

construction’ unless doing so ‘would involve a manifest absurdity.’” Johnson v.

Commonwealth, 58 Va. App. 625, 641, 712 S.E.2d 751, 759 (2011) (citation omitted). The

absurdity exception, however, applies only when a literal reading of the statute produces

systemic anomalies in a realistic range of likely applications, not in fanciful hypothetical

situations.

        A literal interpretation of Code § 18.2-53.1 — one that interprets “minimum” to mean

minimum, not maximum — cannot be dismissed as a manifest absurdity. No court has ever

suggested as much. Nor can we say a life sentence would never be appropriate under this statute.

The “mandatory minimum” term of Code § 18.2-53.1 applies to various felons, including

murderers and rapists who use firearms to kill, abuse, or torture their victims. I see no manifest

absurdity in imposing life imprisonment upon a recidivist murderer or rapist who uses a firearm

                                               - 20 -
to accomplish his crime. 12 It does not make it absurd to do so simply because the murderer or

rapist also deserves equal punishment on the underlying predicate felony.

       As for the conjectural possibility that a life sentence could be imposed upon an

undeserving criminal, I am content to rely on the good judgment of our trial judges to avoid such

immoderate results. That this trust is well-placed is evidenced by the fact that life sentences are

“rarely, if ever, imposed” in felony-firearm cases. United States v. Stewart, 628 F.3d 246,

258-59 (6th Cir. 2010) (citation omitted).

                          V. THE ATTORNEY GENERAL’S CONCESSION

       Unlike the majority, I am unimpressed by what the majority calls the Commonwealth’s

“concession that the statute prescribes only a three-year mandatory sentence.” Ante at 13. I

think it fair to call it a concession of sorts, but it is an ambivalent and puzzling one. The

Attorney General’s brief quotes from one of our unpublished opinions, Neria v. Commonwealth,

No. 3088-07-4, 2009 Va. App. LEXIS 136 (Mar. 24, 2009) (Elder, J.), which held the phrase

“mandatory minimum” in another statute, Code § 18.2-270(C), actually meant mandatory

minimum:

               The statute sets a “mandatory minimum fine of $1,000.” The
               plain, obvious, and rational meaning of “mandatory minimum fine
               of $1,000” is that the trial court or jury has the discretion to impose
               a pecuniary punishment greater than $1,000, and nothing in the
               statute supports a different conclusion. Thus, setting the fine at
               $2,500 was clearly within the discretion of the jury.

Neria, 2009 Va. App. LEXIS 136, at *10. Adopting our reasoning, the Virginia Supreme Court

affirmed in an unpublished order. Neria v. Commonwealth, No. 090813 (Va. Feb. 19, 2010). As

a “decision on the merits,” the Neria affirmance order has precedential value because the


       12
           Consider, too, the counter-absurdity of capping the sentence of a rapist or murderer
using a firearm at three years of imprisonment (under the majority’s interpretation of Code
§ 18.2-53.1) while inconsistently capping the sentence for possessing a firearm and drugs, even
without using it, at five years (Code § 18.2-308.4).
                                               - 21 -
analytical “grounds” for the decision are “discernible from the four corners of the Court’s order.”

Sheets v. Castle, 263 Va. 407, 411-12, 559 S.E.2d 616, 619 (2002).

       Relying on Neria, the Attorney General correctly argues: “Hines, in essence, is asking

this Court to rewrite the sentencing portion of § 18.2-53.1 by effectively ignoring the term

‘minimum’ in the present statute.” Appellee’s Br. at 13 (emphasis added). “Had the General

Assembly intended the ‘mandatory minimum’ sentence of three years to be both the minimum

and maximum term of imprisonment for an initial violation of Code § 18.2-53.1, it simply would

have left the three year sentence to be ‘mandatory’ instead of amending the statute in 2004 to add

the term ‘minimum.’” Id.

       The Attorney General’s brief then takes a surprising turn. After opining on Neria and the

plain meaning of the phrase “mandatory minimum,” the Attorney General states he feels

“constrained” to point out that under Code § 18.2-14, “while perhaps not what the General

Assembly intended,” it “appears” that the three and five-year mandatory minimums in Code

§ 18.2-53.1 are actually mandatory maximums. Appellee’s Br. at 14-15 (emphasis added). As I

noted earlier, however, Code § 18.2-14 says no such thing. Code § 18.2-14 merely directs us to

the text of Code § 18.2-53.1 (rather than Code § 18.2-10’s felony punishment classifications) to

determine the sentence to be imposed. Once we limit ourselves to Code § 18.2-53.1, the

question still remains whether “mandatory minimum” can be judicially construed to mean

mandatory maximum.

       Because I do not share the Attorney General’s angst over Code § 18.2-14, but agree fully

with his plain reading of Code § 18.2-53.1, I respect but cannot accept his concession. Virginia

courts, of course, “have no obligation to accept concessions of error” and can never be bound by

a concession on a “pure question of law.” Copeland v. Commonwealth, 52 Va. App. 529, 531,

664 S.E.2d 528, 529 (2008) (citing United States v. Hairston, 522 F.3d 336, 340 (4th Cir. 2008)

                                              - 22 -
(recognizing “the government’s concession of error is not binding on this court”), and Logan v.

Commonwealth, 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) (en banc)). “Pure statutory

construction, a matter within the ‘core competency of the judiciary,’ requires de novo review.”

Citland, Ltd. v. Commonwealth ex rel. Kilgore, 45 Va. App. 268, 275, 610 S.E.2d 321, 324

(2005) (citation omitted). Unlike the majority, I see nothing upon a de novo review of the law

that “compels this Court,” ante at 12, to accept the Attorney General’s half-hearted concession.

                      VI. THE “FISCAL IMPACT” OF THE 2004 AMENDMENT

        Lacking any textual or caselaw support for its interpretation, the majority turns to the

argument that the “mandatory minimum” term in the 2004 amendment could not mean a

minimum sentence because that would cost money and the legislature allegedly failed to allocate

funds to pay for it. See ante at 8-9 (citing Code § 30-19.1:4). This argument, it seems to me, is

the weakest of all. Probably for this reason, Hines did not make it orally or on brief. Nor did the

Attorney General mention it. I think the reason why is that no Virginia court has ever failed to

enforce the plain meaning of a statute because, it was thought, the legislature failed to consider

its economic consequences. This appears to be the first time such an argument has been factored

into the traditional rules of statutory construction.

        What is more, the assumption underlying this argument rises no higher than a speculative

guess. None of us can explain the absence of a specific appropriation for the 2004 amendment to

Code § 18.2-53.1. It could be the Virginia Criminal Sentencing Commission simply misread the

proposed amendment and, as a consequence, neglected to prepare a fiscal impact statement under

Code § 30-19.1:4(A). Perhaps those charged with scoring the fiscal impact relied upon the State

Crime Commission Report, not realizing the recommendations in the report addressed only

nineteen of the mandatory minimum statutes needing amendment and conspicuously omitted any

mention of Code § 18.2-53.1. See VCC Report, supra, at 37-38. Maybe this specific funding

                                                 - 23 -
issue got lost in the larger decision by the General Assembly in 2004 to build two new state

prisons at a cost of over $140 million. See 2004 Va. Acts Spec. Sess. I, ch. 4, at 493. A year

later, in 2005, the General Assembly authorized yet another new prison, see 2005 Va. Acts, ch.

951, at 2281-82, which, after being built, was promptly mothballed without ever being used.

       I do not know what to make of these budgeting and appropriation decisions. But I do

know what not to make of them. No matter the plausible explanations, none persuade me to

interpret “minimum” in Code § 18.2-53.1 to mean anything other than minimum.

                                       VII. CONCLUSION

       In sum, the plain wording of Code § 18.2-53.1 establishes a mandatory minimum term of

imprisonment — not a mandatory maximum. Because the statute sets no upper limit to the

potential term of imprisonment, there is no statutory limit. In this case, therefore, the trial court

did not err by imposing a ten-year sentence, with seven years suspended, for Hines’s violation of

Code § 18.2-53.1. 13




       13
          I concur with the majority’s holding that the trial court did not err in imposing an
active sentence of thirteen years for Hines’s robbery convictions. See ante at 1, 12-13.
                                                - 24 -
