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

TERRANCE KEVIN HALL
                                                            OPINION BY
v. Record No. 180197                            SENIOR JUSTICE LEROY F. MILLETTE, JR.
                                                          December 20, 2018
COMMONWEALTH OF VIRGINIA

                      FROM THE COURT OF APPEALS OF VIRGINIA

       This appeal concerns the so-called “safety valve” provision of Code § 18.2-248(C),

providing for relief from mandatory sentences when the defendant truthfully provides all

information and evidence concerning his offense to the Commonwealth “[n]ot later than the time

of the sentencing hearing.” In the instant case, the defendant provided the information

immediately prior to the sentencing hearing, and the trial court determined that such motion was

untimely and declined to rule on the merits. For the reasons stated herein, we reverse and

remand.

                               I. FACTS AND PROCEEDINGS

       Terrance Kevin Hall pled guilty to three counts of distribution of cocaine, second or

subsequent offense, subject to the mandatory minimum sentencing provisions of Code

§ 18.2-248, and two counts of distribution of cocaine in a school zone. Sentencing was

scheduled for 9 a.m. on February 22, 2017.

       On the morning of sentencing, Hall filed a motion pursuant to the safety valve provision

of Code § 18.2-248(C), which provides potential relief from mandatory minimum sentences,

according to the following terms:

       The mandatory minimum term of imprisonment to be imposed for a violation of
       this subsection shall not be applicable if the court finds that:

       a.      The person does not have a prior conviction for an offense listed in
               subsection C of § 17-805;
       b.      The person did not use violence or credible threats of violence or possess a
               firearm or other dangerous weapon in connection with the offense or
               induce another participant in the offense to do so;

       c.      The offense did not result in death or serious bodily injury to any person;

       d.      The person was not an organizer, leader, manager, or supervisor of others
               in the offense, and was not engaged in a continuing criminal enterprise as
               defined in subsection I; and

       e.      Not later than the time of the sentencing hearing, the person has truthfully
               provided to the Commonwealth all information and evidence the person
               has concerning the offense or offenses that were part of the same course of
               conduct or of a common scheme or plan, but the fact that the person has
               no relevant or useful other information to provide or that the
               Commonwealth already is aware of the information shall not preclude a
               determination by the court that the defendant has complied with this
               requirement.

Code § 18.2-248(C) (emphasis added). Hall attached to his motion a two-page, handwritten

disclosure, which, according to the transcript, the Commonwealth received just prior to or at 9

a.m.

       The sentencing hearing commenced sometime after 9 a.m., and the parties do not dispute

that the Commonwealth received the disclosure prior to the commencement of the sentencing

hearing. The trial court entertained the motion prior to sentencing. The Commonwealth argued:

       As of nine o’clock this morning when the sentencing hearing was to begin, this
       Defendant has never sat down with the Commonwealth, he’s never sat down and
       answered any questions from law enforcement about the offenses in this particular
       case so he has not sufficiently gone through and done what he needs to do in order
       for him to avoid these minimum mandatories. . . . [I]f this has not been done
       before the time of the sentencing hearing, then it does not apply and he does not
       get the benefit.

Defense counsel responded that the Commonwealth received a disclosure from Hall before the

judge took the bench to commence sentencing proceedings, rendering the disclosure timely.




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       The trial court stated that: “[W]hether or not there’s been compliance with the statute is

something that the Court has to determine and – and that probably requires the Commonwealth

to have an opportunity to review this, look at it and – and make an argument about whether or

not there’s been compliance with the statute. This Court has not reviewed this information this

morning, it’s just been handed to the Court as well as the motion and simply put, I previously

ruled and I think the Court of Appeals has held not later than sentencing hearing means that it

means not the morning of the sentencing hearing, not before the case is called for sentencing. . . .

[T]he motion is not timely and there has not been compliance with the statute as it’s been filed

this morning.” (Emphasis added.) The motion was denied. Due to this ruling, the parties did

not argue the merits of the disclosure’s completeness or truthfulness. Hall received the

mandatory sentences and timely appealed.

       The Court of Appeals upheld the trial court’s denial of the motion, specifically ruling that

subpart (e) does not provide for a bright line rule for timeliness but that timeliness depends on

the time necessary to “test [the] statement for veracity and completeness.” Hall timely appealed

to this Court, assigning error to the finding of the Court of Appeals that the trial court did not err

due to Hall’s failure to comply with Code § 18.2-248(C).

                                         II. DISCUSSION

       While a trial court’s sentence is reviewed for abuse of discretion, to the extent that

sentencing involves statutory construction, such construction is reviewed de novo. The Court

considers de novo the language “Not later than the time of the sentencing hearing” in Code

§ 18.2-248(C).

       We have said: “When the language of a statute is unambiguous, we are bound by the

plain meaning of that language. Furthermore, we must give effect to the legislature’s intention




                                                  3
as expressed by the language used unless a literal interpretation of the language would result in a

manifest absurdity.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104 (2007)

(citing Campbell v. Harmon, 271 Va. 590, 597-98 (2006); Virginia Polytechnic Inst. & State

Univ. v. Interactive Return Serv., 271 Va. 304, 309 (2006); Boynton v. Kilgore, 271 Va. 220, 227

(2006); Williams v. Commonwealth, 265 Va. 268, 271 (2003)). The parties agree that the

language is unambiguous, and, while not bound by their concessions of law, we concur with this

assessment. We now turn to the plain meaning of the language used, and whether the literal

interpretation would result in a manifest absurdity.

   A. Plain Meaning

       “Where the legislature has used words of a plain and definite import the courts cannot put

upon them a construction which amounts to holding the legislature did not mean what it has

actually expressed.” Barr v. Town & Country Props., Inc., 240 Va. 292, 295 (1990).

       “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any

curious, narrow, or strained construction.” Turner v. Commonwealth, 226 Va. 456, 459, 309

S.E.2d 337, 338 (1983). “Not later than the time of the sentencing hearing” has the plain and

definite meaning of up until, but not beyond, the commencement of the sentencing hearing.

       The ruling in the primary Virginia appellate case to interpret this language comports with

this understanding of the plain meaning. In Sandidge v. Commonwealth, 67 Va. App. 150

(2016), the Court of Appeals examined this same phrase to determine whether a motion made

during a sentencing hearing could be considered timely. The Court of Appeals found the phrase

to be unambiguous, stating:

       Sandidge argues that the phrase “[n]ot later than the time of the sentencing
       hearing” must be read to include the period comprising the sentencing hearing
       itself. However, that idea could just as easily have been expressed as “[n]ot later
       than the sentencing hearing.” We cannot ignore the General Assembly's decision



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       to include the words “time of,” because “every part of a statute is presumed to
       have some effect and no part will be considered meaningless unless absolutely
       necessary.” Baker v. Commonwealth, 284 Va. 572, 577, 733 S.E.2d 642, 645
       (2012) (quoting Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d
       335, 338 (1998)). When cases are set for sentencing . . . trial courts provide the
       parties a date and time. That time is a start time, not an end time. Accordingly,
       the logical construction of the words “time of the sentencing hearing” is when the
       sentencing hearing begins.

Id. at 159 (emphasis added). The Court of Appeals went on to state that “[w]e therefore hold that

the phrase ‘[n]ot later than the time of the sentencing hearing’ means prior to the commencement

of the sentencing hearing.” Id. at 160. This Court continues to agree with this primary holding

in Sandidge.

       Furthermore, Code § 18.2-248(C) invokes virtually the same operative language as a

parallel United States Sentencing Guideline safety valve provision, to which federal courts have

applied the same understanding. See 18 U.S.C.S. Appx. § 5C1.2 (“Not later than the time of the

sentencing hearing, the defendant has truthfully provided to the Government all information and

evidence . . . concerning the offense”). Federal courts have consistently ruled that disclosure

under the safety valve may be made as long as it is prior to commencement of the sentencing

hearing. See, e.g., United States v. Galvon-Manzo, 642 F.3d 1260, 1266 (10th Cir. 2011)

(immediately prior to sentencing hearing not too late for safety valve purposes); United States v.

Matos, 328 F.3d 34, 39 (1st Cir. 2003) (“not later than the time of the sentencing hearing” found

to mean the deadline for disclosure is “the moment that the sentencing hearing starts”); United

States v. Brownlee, 204 F.3d 1302, 1304-05 (11th Cir. 2000) (proffer the morning of the

sentencing hearing was timely; case remanded for resentencing); United States v. Schreiber, 191

F.3d 103, 107-08 (2nd Cir. 1999) (“not later than the time of the sentencing hearing” allows a

safety valve for any full disclosure prior to “the time of commencement of the sentencing

hearing,” whether accomplished piecemeal or at once); United States v. Tournier, 171 F.3d 645,



                                                 5
647 (8th Cir. 1999) (rejecting government’s argument that safety valve should be withheld from

defendants who wait until the last minute); United States v. Marin, 144 F.3d 1085, 1095 (7th Cir.

1998) (disclosure must occur “by the time of the commencement of the sentencing hearing”).

These jurisdictions have consistently read this provision as we do today: a disclosure is timely if

made by the time of the commencement of a sentencing hearing.

   B. Manifest Absurdity

       Despite the plain language of the statute, the Commonwealth seeks to reframe the issue,

stating: “The sole issue on appeal is whether the circuit court erred by finding that Hall’s

statement was given too late to allow the circuit court to make an intelligent determination that

he had satisfied Code § 18.2-248(C)(e).” (Emphasis added.) The Commonwealth argues

permitting such a late disclosure makes it impossible for the circuit court to intelligently weigh

the truthfulness or completeness of the statement in order to determine whether it satisfied the

statute. Thus, the Commonwealth contends Code § 18.2-248(C)(e) is not satisfied by minimal

avoidance of the deadline, but requires that the defendant produce sufficient evidence to support

a sentencing court in “find[ing] that” he “has truthfully provided to the Commonwealth all

information and evidence,” as well as the time to do so.

       Although the Commonwealth’s argument could be construed to mean that the plain

meaning must be driven by the trial court’s preconceived purpose of the subsection, such an

approach to statutory instruction would be erroneous. Conyers, 273 Va. at 104 (“[W]e must give

effect to the legislature’s intention as expressed by the language used.” (emphasis added)).

However, the Commonwealth does not truly dispute the plain meaning of the phrase itself, but

rather argues the plain meaning must be altered in order that the overarching purpose of the

subsection, requiring that the trial court make a finding, may be achieved.




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       Though the Commonwealth does not label it as such, its argument is more properly

construed as an absurdity argument, invoking that little-used caveat completing the quote from

Conyers: that we find legislative intent as expressed by the language “unless a literal

interpretation of the language would result in a manifest absurdity.” Conyers, 273 Va. at 104.

We have said that absurdity “describes situations in which the law would be internally

inconsistent or otherwise incapable of operation.” Covel v. Town of Vienna, 280 Va. 151, 158

(2010) (internal quotation marks omitted). The Commonwealth argues that the statute would be

inoperable, in light of the statute’s call upon the court to make an actual finding as to the

truthfulness and completeness of a disclosure, if the Court were to permit disclosures only

moments before a sentencing hearing.

       And yet we need only to turn to the numerous federal jurisdictions in which the similar

safety valve statute is operable, and which permit disclosure immediately before sentencing, to

find that this is not the case. Since the same plain language interpretation is proving legally

workable in at least six federal circuits, it seems far from a manifest absurdity. * See, e.g., United



       *  See, e.g., United States v. Galvon-Manzo, 642 F.3d 1260, 1267 (10th Cir. 2011)
(holding that “the resolution of disputes arising out of or relating to the debriefing process lies
within the sound discretion of the district court,” and that disclosures are timely if they occur
prior to the commencement of the sentencing hearing); United States v. Matos, 328 F.3d 34, 39
(1st Cir. 2003) (declining to adopt a burden shifting rationale while maintaining that the deadline
for disclosure is “the moment that the sentencing hearing starts”); United States v. Brownlee, 204
F.3d 1302, 1304-05 (11th Cir. 2000) (proffer to Government made morning of the sentencing
hearing); United States v. Schreiber, 191 F.3d 103, 107-08 (2nd Cir. 1999) (ruling that a
debriefing is not required for compliance with the safety valve provisions because it would
effectively move the compliance deadline earlier in time, and that a prosecutor’s refusal to meet
with defendant should not preclude the trial court from ruling on the merits of a timely filed
motion, because defendant may still provide a written disclosure and demonstrate a good faith
attempt to cooperate); United States v. Tournier, 171 F.3d 645, 647 (8th Cir. 1999) (finding even
last minute full cooperation comported with the requirements of the safety valve provision);
United States v. Marin, 144 F.3d 1085, 1095 (7th Cir. 1998) (concluding that disclosure by the
time of commencement, rather than during, the sentencing hearing, achieves the purpose of the
statute by minimizing gamesmanship rewarding low-level defendants who truly cooperate).


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States v. Garcia, 405 F.3d 1260, 1274-75 (11th Cir. 2005) (holding that a sentencing court may,

in its discretion, continue a sentencing hearing to permit further debriefing upon motion of the

defendant). The numerous federal jurisdictions interpreting the safety valve provision to allow

filings made prior to commencement of sentencing demonstrate that this alleged impracticality is

by no means “legally unworkable,” even if it may not be the model of efficiency to have

defendants present a disclosure on the day of sentencing. If the legislature wishes to expedite the

process in Virginia, it is empowered to do so, but the Court is bound by the words of the statute

insofar as it is workable.

       The issue of timeliness must first be treated as a separate and distinct inquiry from the

merits inquiry. See, e.g., Schreiber, 191 F.3d at 105, 109 (remanding for a finding on the merits

where the trial court disqualified at the threshold a timely filed disclosure without an evaluation

of the truthfulness or completeness). The timeliness question is a simple, threshold issue: the

defendant either made his disclosure “not later than the time of the sentencing hearing” or he did

not. In this instance, there is no question that the disclosure was timely.

       Nonetheless, the risk of last-minute yet procedurally timely disclosure is not irrelevant to

the merits where, as here, the burden of production and of persuasion lies with the defendant.

While the subsection does not explicitly set forth burdens of proof, “[i]n most cases, the party

who has the burden of pleading a fact will have the burdens of producing evidence and of

persuading the [factfinder] of its existence as well.” 2 Kenneth S. Broun, McCormick on

Evidence § 337 (7th ed. 2013). As clearly implied by the subsection and commonly practiced in

Virginia, the burden to make the motion falls on the defendant seeking to invoke the safety-valve

provision. “[B]urdens of producing evidence and of persuasion with regard to any given issue

are both generally given to the same party.” Id. Furthermore, while “the burden of pleading is




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not a foolproof guide to the allocation of the burdens of proof,” a “doctrine often repeated by the

courts is that, where the facts with regard to an issue lie particularly in the knowledge of a party,

that party has the burden of proving the issue.” Id. The burden of proof must be on the

defendant to demonstrate he has provided to the Commonwealth all information he has

concerning the offenses. See also Matos, 328 F.3d at 39 (“A defendant bears the burden of

showing that he made appropriate and timely disclosure to the government. This burden obliges

the defendant to prove to the court that the information he supplied in the relevant time frame

was both truthful and complete.”).

       The defendant enters this type of last minute disclosure at his own risk: the trial court is

within its discretion to disbelieve a self-serving disclosure if it appears incomplete or untruthful,

and the court is entitled to consider the last-ditch nature of the effort or previous untruths into

that calculus. See Brownlee, 204 F.3d at 1304-05; Schreiber, 191 F.3d at 108; Tournier, 171

F.3d at 647 (all noting that prior untruths or last minute disclosures do not automatically

disqualify a defendant from safety valve relief but become part of the mix of evidence in

evaluating the truthfulness and completeness of the disclosure). The trial court is entitled to use

its discretion in determining whether to allow the defendant to augment his filed disclosure

through in-court testimony or through the granting of a continuance to allow the Commonwealth

to investigate and verify that the information presented by the defendant is full and complete.

       The risk facing a defendant who waits until the last minute to file a motion under Code

§ 18.2-248(C) is enhanced if the prosecutor invites the trial court to review and reject, on the

merits, a defendant’s unverified disclosure. “The decision to grant a motion for a continuance is

within the sound discretion of the circuit court and must be considered in view of the

circumstances unique to each case.” Virginia Fuel Corp. v. Lambert Coal Co., 291 Va. 89,




                                                  9
104-05 (2016) (citation omitted). The trial court’s discretion whether to grant a motion for a

continuance made on the defendant’s behalf would necessarily take into account whether the

defendant has apparently exercised due diligence and good faith in attempting to present a

complete and truthful disclosure to the Commonwealth by the statutory deadline. The denial of

such a motion can be overturned only when the defendant can demonstrate an “abuse of

discretion and resulting prejudice.” Id. (emphasis in original) (citation omitted).

       Here, however, the trial court, refusing the motion as per se untimely, stated clearly on

the record that it had not read the motion and refused to review the substance of the included

disclosure. In doing so, the trial court declined to make any finding on the merits as to the

veracity and completeness of the claim. The sole basis for refusing the motion was the last-

minute nature of the disclosure. While the timing of the disclosure may weigh into a trial court’s

consideration on the merits, the court may not bar a motion as untimely based on a last-minute

disclosure when such disclosure was nonetheless timely made: that is, not later than the

commencement of the sentencing hearing.

                                       III. CONCLUSION

       Because disclosure was timely made to the Commonwealth, the motion was timely and

warrants consideration on the merits by the trial court for the completeness and truthfulness of

the disclosure as well as any further disclosure made to the Commonwealth before resentencing.

       The sentences are hereby vacated, and the case is reversed and remanded for proceedings

consistent with this opinion.

                                                                          Reversed and remanded.




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