                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Alston
Argued by teleconference


SHAHEE ALI AKBAR
                                                               MEMORANDUM OPINION * BY
v.     Record No. 0915-09-3                                      JUDGE LARRY G. ELDER
                                                                     APRIL 27, 2010
COMMONWEALTH OF VIRGINIA


                     FROM THE CIRCUIT COURT OF FRANKLIN COUNTY
                              William N. Alexander, II, Judge

                 Arthur J. Donaldson for appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General
                 (William C. Mims, Attorney General, on brief), for appellee.


       Shahee Ali Akbar (appellant) appeals the imposition of a term of post-release supervision,

contending the imposition of this punishment pursuant to Code § 19.2-295.2 violates the separation

of powers doctrine embodied in article III, § 1, of the Virginia Constitution. Because the statutory

scheme does not require the Virginia Parole Board (the Board), an executive agency, to usurp the

judicial function of assessing punishment, we affirm the trial court’s imposition of a term of

post-release supervision.

                                                   I.

                                             ANALYSIS

       We begin any constitutional analysis with the presumption that the statute is valid and

“resolve any reasonable doubt as to the statute’s constitutionality in favor of its legality if

possible.” Taylor v. Worrell Enters., Inc., 242 Va. 219, 221, 409 S.E.2d 136, 137 (1991); see


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Finn v. Va. Retirement Sys., 259 Va. 144, 153, 524 S.E.2d 125, 130 (2000). “Any judgment

concerning the wisdom or propriety of a statute remains solely a legislative function, and we will

declare a statute null and void only when it is plainly repugnant to a state or federal

constitutional provision.” In re Phillips, 265 Va. 81, 86, 574 S.E.2d 270, 272 (2003). We review

such issues de novo. Alston v. Commonwealth, 274 Va. 759, 764, 652 S.E.2d 456, 459 (2007).

       Appellant argues the mandatory post-release supervision required by Code § 19.2-295.2

violates the separation of powers doctrine because it empowers the Board, an executive agency, to

assess a punishment in excess of what the trial court is statutorily authorized to impose. In other

words, appellant contends the executive agency is not simply administering a sentence imposed by

the judiciary, but rather levying conditions on the judicially determined sentence and imposing

active incarceration above and beyond what the court could have done. Appellant argues that this

ability to “amend the court’s original sentence” improperly usurps the judiciary’s responsibility to

assess punishment.

       Under the Virginia Constitution, “[t]he legislative, executive, and judicial departments

shall be separate and distinct, so that none exercise the powers properly belonging to the others,

nor any person exercise the power of more than one of them at the same time.” Va. Const. art.

III, § 1. We have consistently held “that the degree of separation demanded by the Virginia

Constitution is not absolute,” Taylor, 242 Va. at 221, 409 S.E.2d at 138, so we “must evaluate

such challenges in the contextual framework of the ‘whole power’ of a governmental

department,” Phillips, 265 Va. at 86, 574 S.E.2d at 273.

                       “When we speak . . . of a separation of the three great
               departments of government, and maintain that that separation is
               indispensable to public liberty, we are to understand this maxim in
               a limited sense. It is not meant to affirm that they must be kept
               wholly and entirely separate and distinct, and have no common
               link or dependence, the one upon the other, in the slightest degree.
               The true meaning is that the whole power of one of these
               departments should not be exercised by the same hands which
                                                 -2-
               possess the whole power of either of the other departments; and
               that such exercise of the whole would subvert the principles of a
               free constitution . . . . Indeed there is not a single constitution of
               any state in the union which does not practically embrace some
               acknowledgment of the maxim and at the same time some
               admixture of powers constituting an exception to it.”

Winchester & Strasburg R.R. Co. v. Commonwealth, 106 Va. 264, 270, 55 S.E. 692, 694 (1906)

(quoting Story’s Const. 393, 395 (5th ed.)). Accordingly, “the proper inquiry focuses on the

extent to which [the challenged statute] prevents the [judiciary] from accomplishing its

constitutionally assigned functions.” Nixon v. Admin. of Gen. Servs., 433 U.S. 425, 443, 97

S. Ct. 2777, 2790, 53 L. Ed. 2d 867, 891 (1997); see Taylor, 242 Va. at 223, 409 S.E.2d at 139

(balancing the potential for disruption with “‘an[y] overriding need to promote objectives within

the constitutional authority of Congress’” (quoting Nixon, 433 U.S. at 443, 97 S. Ct. at 2777, 53

L. Ed. 2d at 891)).

       Appellant pled guilty to possession of a firearm by a violent felon in violation of Code

§ 18.2-308.2. The plea agreement provided appellant would receive the five-year prison term

mandated by Code § 18.2-308.2(A). 1 The trial court accepted the plea agreement and found

appellant guilty of possession of a firearm by a violent felon. The trial court then sentenced

appellant to five years in prison and imposed a three-year period of post-release supervision as

required under Code § 19.2-295.2, 2 which the trial court suspended.


       1
          Code § 18.2-308.2(A) categorizes the crime of possession of a firearm by a violent
felon as a Class 6 felony. Further, “any person who violates this section by knowingly and
intentionally possessing or transporting any firearm and who was previously convicted of a
violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of
imprisonment of five years.” Id. Code § 18.2-10 sets the term of imprisonment for Class 6
felonies at “not less than one year nor more than five years.” Accordingly, the trial court was
required to sentence appellant to five years incarceration.
       2
         Code § 19.2-295.2(A) requires the trial court to “impose a term of postrelease
supervision of not less than six months nor more than three years, as the court may determine,”
“in addition to any other punishment imposed if such other punishment includes an active term

                                                 -3-
       Unquestionably, “the assessment of punishment is a function of the judicial branch of

government, while the administration of such punishment is a responsibility of the executive

department.” Hinton v. Commonwealth, 219 Va. 492, 496, 247 S.E.2d 704, 706 (1978); see

Fishback v. Commonwealth, 260 Va. 104, 113, 532 S.E.2d 629, 632 (2000). Contrary to

appellant’s position, however, establishing the terms and conditions of a defendant’s post-release

supervision does not impermissibly disrupt the trial court’s power to assess punishment. “Code

§ 19.2-295.2 was enacted as part of the General Assembly’s statutory scheme abolishing parole

in Virginia.” Lamb v. Commonwealth, 40 Va. App. 52, 56, 577 S.E.2d 530, 532 (2003) (citing

Summary of S.B. 3001, Abolition of Parole, 2d Spec. Sess. (Va. 1994)). Whereas Code

§ 19.2-295.2(A) establishes the trial court’s role in assessing the length of post-release

supervision, subsection B places the defendant “under the supervision and review of the Virginia

Parole Board.” The Board is empowered to “establish the conditions of postrelease supervision

authorized pursuant to §§ 18.2-10 and 19.2-295.2A,” Code § 53.1-136(2)(b), and “revoke . . .

any period of postrelease and order the reincarceration of any parolee or felon serving a period of

postrelease supervision . . . when, in the judgment of the Board, he has violated the conditions of

his . . . postrelease supervision,” Code § 53.1-136(3). To that extent, the Board

               shall review each felon prior to release and establish conditions of
               postrelease supervision. Failure to successfully abide by such
               terms and conditions shall be grounds to terminate the period of
               postrelease supervision and recommit the defendant to the
               Department of Corrections or to the local correctional facility from
               which he was previously released.

Code § 19.2-295.2(B). Thus, a plain reading of Code § 19.2-295.2 reveals that the Board merely

acts as an administrative body to supervise the released defendant’s conduct, Code

§ 19.2-295.2(B) (“The period of postrelease supervision shall be under the supervision and



of incarceration.” Further, such “additional term shall be suspended and the defendant placed
under postrelease supervision upon release from the active term of incarceration.” Id.
                                                -4-
review of the Virginia Parole Board.”), and not disrupt the trial court’s ability to establish the

length of post-release supervision. See generally Moreau v. Fuller, 276 Va. 127, 136, 661 S.E.2d

841, 846 (2008) (recognizing that “the subject matter of the judiciary’s power may, in some

ways[,] be limited by legislative action”).

        The Supreme Court of Virginia reached a similar conclusion in Phillips in which the

constitutionality of the circuit court’s authority to restore a convicted felon’s voting rights was

challenged. Under Code § 53.1-231.2, “any person . . . may petition the circuit court . . . for

restoration of his civil right to be eligible to register to vote through the process set out in this

section.” The circuit court declined to consider Phillips’ petition, holding that Code § 53.1-231.2

violated the separation of powers doctrine because the statute usurped the Governor’s power to

remove political disabilities resulting from criminal convictions. 265 Va. at 84-85, 574 S.E.2d at

272. The Court reversed the circuit court, holding that Code § 53.1-231.2 merely “established

the standards for identifying felons who may qualify for restoration of their eligibility to vote.”

Id. at 86, 574 S.E.2d at 273. Thus, the “circuit court’s function under the statute [was] limited to

making a determination whether a petitioner ha[d] presented competent evidence supporting the

specified statutory criteria, and a court’s approval or denial of a petition and transmittal of its

order . . . complete[d] this statutory process.” Id. The Court further noted that “the power to

remove the felon’s political disabilities remains vested solely in the Governor” and, thus, that

“Code § 53.1-231.2 does not assign to the judicial branch of government a function reserved to

the Governor by the Constitution.” Id. at 87-88, 574 S.E.2d at 273.

        Similarly in this case, the trial court retains the ability to assess punishment against the

defendant. The role of the Board is simply to give a defendant clear standards for his conduct

upon his release from incarceration that will control whether or not the defendant remains free

during the remainder of his post-release supervision. If the defendant violates the terms and

                                                  -5-
conditions of his post-release supervision, only then does the Board “revoke . . . any period of

postrelease and order the reincarceration” of the defendant. Code § 53.1-136(3). In other words,

the Board empowers the defendant to make his own choices as to whether or not he will serve a

term of active incarceration greater than the incarceration delineated in Code § 18.2-10. In either

case, the defendant remains subject to the length of punishment imposed by the judiciary, not the

Board. Accordingly, Code § 19.2-295.2 “does not authorize [the Board] to exercise the ‘whole

power,’ or any part of the power, granted to [the judiciary]” to impose a term of punishment

upon appellant. 3 Phillips, 265 Va. at 87, 574 S.E.2d at 273.

                                                II.

                                         CONCLUSION

       For these reasons, we affirm the imposition of appellant’s post-release supervision.

                                                                                         Affirmed.




       3
          We do not address appellant’s concern that the combined incarceration upon violation
of the terms and conditions of post-release supervision exceeds the statutory maximum for
incarceration under Code § 18.2-10. We have rejected similar attempts to render the
construction of these two statutes unconstitutional because the permissible range of punishment
now includes incarceration under Code § 18.2-10 in addition to post-release supervision under
Code § 19.2-295.2. See Alston v. Commonwealth, 49 Va. App. 115, 123-24, 637 S.E.2d 344,
347-48 (2006), aff’d, 274 Va. 759, 652 S.E.2d 456 (2007); see also Williams v. Commonwealth,
270 Va. 580, 584, 621 S.E.2d 98, 100 (2005); Boyd v. Commonwealth, 28 Va. App. 537, 541,
507 S.E.2d 107, 109 (1998).
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