Lead Opinion
I reluctantly concur with the Court's ruling declining to apply the ends of justice exception to Rule 5:25 in this case. I write separately to emphasize my concern that the existing statutes provide inadequate direction to the courts and to urge the General Assembly to re-examine them.
I agree with Justice Powell that, having adjudicated Williams not guilty of the August 2014 offenses by reason of insanity, the trial court was required by Code § 19.2-182.2 to place him in the **31custody of the Department of Behavioral Health and Development Services for evaluation. The trial court did so. I also agree with Justice Powell that, after the trial court found that Williams was in need of inpatient hospitalization (based on the evaluation report), it was required to commit him. Again, the trial court did so. The trial court therefore discharged its obligation under the statutes, in their current form.
Nevertheless, the statutes are deficient because they do not direct courts how to prioritize incarceration and commitment when a defendant is found guilty of some criminal offenses but not guilty of others by reason of insanity. I cannot conclude that that trial court erred when it ordered the sequence of incarceration before commitment, so I must agree with the Court that the ends of justice exception does not apply in this case. Commonwealth v. Bass,
The Court is prepared to rely on prisons' constitutional and statutory obligations to provide adequate mental health treatment. But medical care is merely an incidental function of correctional facilities, which are principally charged with custody and rehabilitation. Medical care, including mental health treatment, is the principal responsibility of hospitals and other treatment facilities. Mental health treatment "provided in the inherently coercive system of prisons is ... at the very least, extremely challenging." Anasseril E. Daniel, M.D., *890Care of the Mentally Ill in Prisons: Challenges and Solutions , 35 J. Am. Acad. Psychiatry L. 406, 408 (2007). "[P]rison disciplinary measures are deliberately stressful, if not harmful for those with serious mental illness, in comparison with behavioral therapy." Alan R. Felthous, Enforced Medication in Jails and Prisons: The New Asylums , 8 Alb. Gov't L. Rev. 563, 572 (2015).
The Court also states that if the Department of Corrections' mental health facilities are inadequate to treat Williams, the Department can transfer him to a hospital under Code § 53.1-40.2. However, that code section says nothing about transferring prisoners if the Department's mental health treatment facilities are inadequate. Rather, it permits the Director of the Department or his designee to petition for the involuntary admission of a prisoner "who is alleged or reliably reported to have a mental illness to a degree that warrants hospitalization." In this case, the psychiatrist **32and clinical psychologist who examined Williams pursuant to the trial court's Code § 19.2-182.2 order reported that he needs inpatient hospitalization. If their report is not sufficiently "reliabl[e]" for the purposes of Code § 53.1-40.2, whose could be? If the trial court's subsequent judicial finding that he needs such treatment is not a sufficient "alleg[ation]," what is? Yet the Director's decision is discretionary under the statute, so Williams has no means by which to compel him to act.
Although I must conclude that the Court's disposition in this case is correct under the law as it stands, I believe that the statutes applicable here are woefully inadequate in their present form to address the mental health crisis that continues to grow in our correctional facilities. Correcting these statutory deficiencies is unquestionably the province of the legislature, not of the courts (until they reach constitutional dimensions). I appreciate that the General Assembly continues to wrestle with these difficult issues. I urge it to consider both the issue of how courts should prioritize incarceration and commitment when a defendant is found guilty of some criminal offenses and not guilty of others by reason of insanity, and whether a finding that a defendant needs inpatient hospitalization for the purposes of committing him under Code § 19.2-182.3 should be sufficient to compel the Department of Corrections to petition to have a prisoner in its custody involuntarily admitted to such hospitalization.
Dissenting Opinion
The majority rules that it need not decide whether the trial court erred and abused its discretion in sequencing Williams' sentences as it did because it is not a grave injustice to require Williams to serve his incarceration prior to being involuntarily committed for his mental illness after being found not guilty by reason of insanity. Under the facts of this case, I believe that the trial court erred and I respectfully disagree with the majority's conclusion that the ends of justice exception under Rule 5:25 does not apply. In my opinion, the ends of justice should be applied to the limited issue presented here, when a trial court does not follow the explicit language of a statute requiring civil commitment and instead imposes a term of incarceration.
**33The majority finds that there was no manifest injustice for two reasons: (1) there is no statutory direction concerning the proper sequence of the imposition for the criminal conviction in relation to his involuntary civil commitment; and (2) the Department of Corrections has the resources, facilities, and obligation to provide Williams with mental health treatment during his period of incarceration. I must respectfully dissent, as I disagree with the first point and find the second point irrelevant.
I fully agree with the majority as to the discretion to be afforded a trial court's sentencing. Normally, "[t]he determination of sentencing lies within the sound discretion of the trial court." Martin v. Commonwealth ,
*891Here, the trial court was faced with two separate sentencing events, one that was discretionary and one that was mandatory. Therefore, I disagree with the majority that there is no statutory direction concerning the proper sequence of the imposition of his sentence. With regard to Williams' sentence for the July 8, 2014 felony assault and battery, third or subsequent offense, the Code provides a discretionary sentencing range of one to five years' incarceration. See Code § 18.2-10(f). Also, because the sentence was not mandatory, the court had the discretion to "suspend imposition of sentence or suspend the sentence in whole or part." Code § 19.2-303.
With regard to the August 24, 2014 offense, however, Williams pled not guilty by reason of insanity. Therefore, the provisions of Chapter 11.1, "Disposition of Persons Acquitted by Reason of Insanity," became applicable. The trial court found Williams not guilty by reason of insanity and placed Williams in temporary custody of the Commissioner of Behavioral Health and Developmental Services pursuant to Code § 19.2-182.2. As required, the trial court ordered an evaluation to determine (1) whether Williams currently had mental illness or intellectual disability and (2)
**34whether he had a need for hospitalization. The evaluators opined that Williams was mentally ill and required inpatient hospitalization. The trial court conducted a hearing pursuant to Code § 19.2-182.3 and found, addressing Williams, that "I agree that you certainly do need to have the benefit of the services at Central State." Having made that finding, the trial court was required to commit Williams to inpatient hospitalization, as mandated by Code § 19.2-182.3 : "At the conclusion of the hearing, the court shall commit the acquittee if it finds that he has mental illness or intellectual disability and is in need of inpatient hospitalization." (Emphasis added.)
Finally, while I agree with every observation made by the majority with regard to the obligations of the Department of Corrections, I find these observations to be irrelevant. Sentencing is within the province of the judiciary. Code § 19.2-295. In my opinion, because the Code does provide a proper sequence of sentencing under the facts of this case, I do not believe that the court can fail to properly exercise its authority simply because the **35Department of Corrections has tools in place to address the situation.
See Commonwealth v. Chatman ,