LAWRENCE W. NALLS, III v. COMMONWEALTH OF VIRGINIA
Record No. 1536-22-1
COURT OF APPEALS OF VIRGINIA
FEBRUARY 6, 2024
JUDGE CLIFFORD L. ATHEY, JR.
PUBLISHED. Prеsent: Judges Humphreys,* Athey and Fulton. Argued at Norfolk,
(Tucker L. Watson, on brief), for appellant. Appellant submitting on brief.
Suzanne Seidel Richmond, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
The Circuit Court of Accomack Cоunty (“circuit court“) found Lawrence W. Nalls, III (“Nalls“) in violation of his probation and revoked and resuspended all but four years of his previously suspended sentences. Nalls appeals, arguing that the circuit court failed to abide by the sentencing limitation of
On October 25, 2018, the circuit court sentenced Nalls to three years’ imprisonment, with two years and six months suspended, for shoplifting, third or subsequent offense. On that same date, the circuit court also sentenced Nalls to three years’ imprisonment, with two yеars and six months suspended, for an additional shoplifting conviction and 12 months, all suspended, for possession of buprenorphine. Also on October 25, 2018, the circuit court sentenced Nalls to a total of six years’ imprisonment, with five years and seven months suspended, for receiving a stolen firearm and for possession of a firearm as a convicted felon. Before the present case arose, Nalls had twice before been found in violation of his probation, and the circuit court revoked and resuspended his previous sentencеs, in part, in 2019, and again in September of 2021.
In June of 2022, Probation Officer Joseph Hullihan (“Officer Hullihan“) filed the current major violation report (“MVR“) alleging that Nalls had violated Condition 6 of his probation by failing to report to the probation office on two occasions desрite being instructed by his probation officer to do so. The MVR also alleged that he violated Condition 10 of his probation by moving without informing probation and parole of his change of address as well as Condition 11 of his probation by absconding from supervision. As a result, the circuit сourt issued a capias for Nalls’ arrest and Nalls was arrested on June 25, 2022.
At a subsequent revocation hearing, Nalls admitted the alleged violations. Officer Hullihan also testified that these offenses constituted Nalls’ third technical violation of probation but that this was the first time he had absconded from supervision. Officer Hullihan then testified that it was his understanding that the first absconding violation took precedence over the third technical violation per
At the second hearing, Officer Hullihan testified that when he originally prepared the sentencing guidelines, he checked the box on the form indicating a third technical violation and another box for a technical violation bаsed on absconding. He further stated that when the sentencing guidelines were prepared in this manner, the recommended sentencing range was 0 to 14 days of incarceration. He also testified that in preparation for the second hearing, he produced a seсond set of guidelines and that he did not check the absconding violation box, only the third technical violation box. These guidelines produced a recommended sentencing range of one year to one year six months’ incarceration.
Nalls’ counsel argued that
II. ANALYSIS
A. Standard of Review
“On appeal, ‘[w]e view the evidence received at [a] revocation hеaring in the light most favorable to the Commonwealth, as the
B. The circuit court was permitted to sentence Nalls for a third technical violation of probation.
Nalls contends that
The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation, and there shall be a presumрtion against imposing a sentence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation. However, if the court finds, by a preponderance of the еvidence, that the defendant committed a second technical violation and he cannot be safely diverted from active incarceration through less restrictive means, the court may impose not more than 14 days of active incarceration for a sеcond technical violation. The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation. For the purposes of this subsection, a first technical violation based on clause (viii) or (x) of subsection A shаll be considered a second technical violation, and any subsequent technical violation also based on clause (viii) or (x) of subsection A shall be considered a third or subsequent technical violation.
It is well settled that “[w]en construing a statute, our primary objectivе is ‘to ascertain and give effect to legislative intent,’ as expressed by the language used in the statute.” Cuccinelli v. Rector & Visitors of Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418 (2011)). “When the language of a statute is unambiguous, we are bound by the plain meaning of that language.” Id. (quoting Kozmina v. Commonwealth, 281 Va. 347, 349 (2011)). Further, we “consider[] the entire statute” so as to “place its terms in contеxt” “because ‘it is our duty to interpret the several parts of a statute as a consistent and harmonious whole so as to effectuate the legislative goal.‘” Id. (quoting Eberhardt v. Fairfax Cnty. Emps.’ Ret. Sys. Bd. of Trs., 283 Va. 190, 194-95 (2012)). We are not to interpret a statute “by singling out a particular phrase.” Id. (quoting Eberhardt, 283 Va. at 195). We are “to give effect, if possible, to every word of the written law.” Heart v. Commonwealth, 75 Va. App. 453, 468 (2022) (quoting Burnette v. Commonwealth, 194 Va. 785, 788 (1953)).
Nalls contends that because
This is the plain meaning in light of the entirety of subsection C, which speaks throughout of first technical violations (“The court shall not impose a sentence of a term of active incarceration upon a first technical violation of the terms and conditions of a suspended sentence or probation . . . .“), second technical violations (“[T]here shall be a presumption against imposing a sеntence of a term of active incarceration for any second technical violation of the terms and conditions of a suspended sentence or probation.” “[I]f the court finds . . . that the defendant committed a second technical violation . . . .“), and third teсhnical violations (“The court may impose whatever sentence might have been originally imposed for a third or subsequent technical violation.“). Id.
We are compelled to state the obvious by noting that “first” is defined as “[p]receding all others in time, order, series, succеssion, etc.; earliest in occurrence, existence, etc. . . .” First, Shorter Oxford English Dictionary (5th ed. 2002). “Second” is defined as “[c]oming next after the first in time, order, series, succession, position, occurrence, existence, rank, importance, excellence, etc.; that is number two in a series.” Id. (Second). “Third” is defined as “[n]ext in order after the second, that is number three in a series.” Id. (Third). Here,
Any other reading not only contradicts the plаin language of the statute, but also produces an absurd result. This Court has previously acknowledged that the language upon which Nalls relies treats violations based upon clauses (viii) and (x) as more serious than other technical violations and therefore creates harsher penalties. Heart, 75 Va. App. at 469-70. Hence, we explained that the statute “creat[es] a hierarchy within the categories of technical violations.” Id. Thus, “the end of paragraph C emphasizes that certain technical violations are more serious, and therefore skip the ‘first technical violation’ tier[,]” and, “[f]or these violations, a probationer gets only one warning before facing the potential of a significant sentence.” Id. at 470.
Nalls’ proposed reading of
We refuse to credit such an interpretation. A third technical violation, even if based upon a first instance of the probationer‘s absconding, may be punished as a third technical violation, which is to say, “[t]he court may impose whatever sentence might have been originally imposed.”
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court.
Affirmed.