                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Judges Frank, Petty and Senior Judge Bumgardner
              Argued at Chesapeake, Virginia


              COMMONWEALTH OF VIRGINIA
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1943-13-1                                    JUDGE ROBERT P. FRANK
                                                                                AUGUST 26, 2014
              ANTHONY NEWSOME


                               FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                               John W. Brown, Judge

                               Steven A. Witmer, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellant.

                               Matthew T. Taylor, Assistant Public Defender (Office of the Public
                               Defender, on brief), for appellee.


                     Upon pleas of guilty, Anthony Newsome, appellee, was found guilty of possession with

              the intent to distribute more than one-half ounce but not more than five pounds of marijuana, in

              violation of Code § 18.2-248.1, possession of a firearm while possessing with the intent to sell

              more than one pound of marijuana, in violation of Code § 18.2-308.4(C), and possessing a

              firearm having previously been convicted of a felony, in violation of Code § 18.2-308.2.

              Pursuant to Code § 19.2-398(C), the Commonwealth appeals, contending the trial court erred in

              running two sentences concurrently when by statute, the trial court was mandated to run the

              sentences consecutively. For the reasons stated, we agree with the Commonwealth and reverse

              the trial court. We remand for resentencing and for a correction of a clerical error in the

              sentencing order.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         BACKGROUND

       As the facts of the offenses are not relevant to this analysis, we need not recite them.

       The trial court sentenced appellee as follows: for possession with intent to distribute –

ten years in prison, all suspended, for possession of a firearm while possessing marijuana with

the intent to distribute – five years in prison, and for possession of a firearm by a nonviolent

felon – five years in prison with three years suspended. In addition, the trial court directed that

one year of the sentence for possession of a firearm while possessing marijuana with the intent to

distribute would run concurrently with the sentence for possession of a firearm by a felon.

       The Commonwealth, on appeal, contends that Code § 18.2-308.2 requires the two-year

mandatory sentence for possession of a firearm by a felon to run consecutively with any other

sentence. According to the Commonwealth, in this case, one year of appellee’s sentence for

possession of a firearm while in possession of marijuana with intent to distribute ran

concurrently with Code § 18.2-308.2.1

       At trial, defense counsel and the Commonwealth argued whether sentences for possession

with intent to distribute marijuana and possession of a firearm while in possession of marijuana

with intent to distribute could run concurrently.

       This appeal follows.

                                            ANALYSIS

       The issue before this Court is a question of statutory interpretation. As such:

               It is a pure question of law which we review de novo. In statutory
               interpretation, [t]he primary objective . . . is to ascertain and give
               effect to legislative intent. Thus, this Court construes a statute
               with reference to its subject matter, the object sought to be
               attained, and the legislative purpose in enacting it; the provisions

       1
           While appellee contends the issue is waived because the Commonwealth did not
preserve the issue below, the record clearly indicates a complete dialogue between counsel and
the trial court as to the very issue before us.

                                                -2-
               should receive a construction that will render it harmonious with
               that purpose rather than one which will defeat it. We will not
               apply an unreasonably restrictive interpretation of the statute that
               would subvert the legislative intent expressed therein.

Brown v. Commonwealth, 284 Va. 538, 542, 733 S.E.2d 638, 640 (2012) (internal quotations

and citations omitted).

       This Court is often called upon to discern the intent of the General Assembly where the

language used in a statute is less than precise. But the primary rule of statutory construction is

quite clear and eminently sensible. “‘When a statute is unambiguous, we must apply the plain

meaning of that language.’ ‘Therefore, when the language of an enactment is free from

ambiguity, resort to legislative history and extrinsic facts is not permitted because we take the

words as written to determine their meaning.’” Altizer v. Commonwealth, 63 Va. App. 317, 323,

757 S.E.2d 565, 568 (2014) (internal citation omitted) (quoting Brown v. Lukhard, 229 Va. 316,

321, 330 S.E.2d 84, 87 (1985)).

       In this case, we analyze Code § 18.2-308.2 and Code § 18.2-308.4.

       Code § 18.2-308.2(A) (possession of a firearm by a convicted felon) provides a penalty

of a mandatory minimum prison term of two years. This section also requires that “[t]he

mandatory minimum terms of imprisonment . . . shall be served consecutively with any other

sentence.”

       Code § 18.2-308.4 (possession of a firearm while in possession of certain substances) is a

Class 6 felony and provides a penalty of a mandatory minimum sentence of two years. Code

§ 18.2-308.4(B) states that “[s]uch 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.”

       Thus, Code § 18.2-308.4 only bars a concurrent sentence with the primary felony. See

Brown, 284 Va. at 543, 733 S.E.2d at 640. Under this statute, the primary felony would be the
                                                -3-
marijuana offense. Here, appellant’s sentence did not run concurrently with the drug charge.

Therefore, Code § 18.2-308.4 was not violated. Our inquiry then is whether Code § 18.2-308.2

was violated.

       The Commonwealth contends the court’s ruling negated the language of Code

§ 18.2-308.2.

       The language of Code § 18.2-308.2 requiring that “[t]he mandatory terms of

imprisonment prescribed for violations of this section shall be served consecutively with any

other sentence” is neither ambiguous nor in conflict with Code § 18.2-308.4. This plain

language clearly expresses the General Assembly’s intention that a sentence under Code

§ 18.2-308.2 must be served separately and apart from any other sentence imposed.

       Multiple sentences are presumed to be served consecutively. See Code § 19.2-308.

Consecutive sentences are “two or more sentences of jail time to be served in sequence.”

Black’s Law Dictionary 1485 (9th ed. 2012). While the trial court has the discretion to order

multiple sentences to run concurrently, “this discretionary exercise of authority may be, and 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, 733 S.E.2d at 640. Thus, when it comes

to statutes containing the identical language found in Code § 18.2-308.2, the Supreme Court of

Virginia has recognized that “the General Assembly has directed that a mandatory minimum

sentence not be run concurrently with any other punishment.” Id. at 544, 733 S.E.2d at 641

(emphasis in original). The General Assembly has directed that the sentence for Code

§ 18.2-308.2 “shall be served consecutively with any other sentence.” Thus, the General

Assembly has proscribed the circuit court’s discretionary authority to run sentences concurrently

with Code § 18.2-308.2.




                                               -4-
       The common meaning of concurrent is “occurring . . . at the same time: operating

simultaneously.” Webster’s Third New International Dictionary 472 (1981). Thus, concurrent

sentences are “[t]wo or more sentences of jail time to be served simultaneously.” Black’s Law

Dictionary, supra, at 1485. Neither sentence takes precedence over the other. Here, the trial

court clearly ran a portion of each of the two sentences concurrently with the other. The

appellant will serve one year under Code § 18.2-308.2 concurrently with one year under Code

§ 18.2-308.4. As a result, the sentence imposed by the trial court under Code § 18.2-308.2 was

not made to run consecutively with the sentence under Code § 18.2-308.4.

       The trial court’s interpretation of Code § 18.2-308.2 and Code § 18.2-308.4 would make

meaningless the mandatory consecutive language of Code § 18.2-308.2. It would allow any

sentence to run concurrently with a sentence under Code § 18.2-308.2. The General Assembly

deliberately chose the word “consecutive” when describing how these sentences were to be

served. The plain meaning of that term requires that they are to be served sequentially and not

simultaneously.

       It is apparent that the General Assembly intended that the penalty for Code § 18.2-308.2

cannot be diluted by running any of that time concurrently with any other sentence; rather it must

run consecutively with any other punishment. Here, by running one year of the Code

§ 18.2-308.4 sentence concurrently with the Code § 18.2-308.2 sentence, the trial court diluted

the mandatory sentence under Code § 18.2-308.2. It was error to do so.




                                               -5-
                                        CONCLUSION

       Finding error in the trial court’s sentence, we reverse and remand for resentencing

consistent with this opinion.2

                                                                         Reversed and remanded.




       2
         We note that there is a clerical error in the sentencing order. The sentencing summary,
which is found on page 47 of the joint appendix, states that one year of CR13-166-02 will run
concurrent with CR13-166-01. However, the order earlier states on page 45 that one year of
CR13-166-02 shall run concurrently with CR13-166-03. This language is consistent with the
judge’s pronouncement in court, found on page 40 of the joint appendix.
                                                 -6-
