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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Shall I Compare Thee to a Mandatory Action or Merely a Directory One?

Updated: Apr 26, 2023

We get three new published opinions from the Court of Appeals this week, all from criminal cases.

Travis Alexander Bland Henderson v. Commonwealth of Virginia is all about the word “shall,” which the Court of Appeals, Judge Raphael joined by Judges O’Brien and Ortiz, notes “has multiple possible meanings.” Typically, shall will be considered to be directory – that is merely suggesting that an act take place – when it applies to an action of a court, but is mandatory – that is the act must take place – when applied to a requirement of some action by a litigant. However, where the context of the statute can be said to imply a mandatory action by the court, it will be read as such.

The “shall” in question here is found in Code § 19.2-295(A), which contains not one, but two instances of the word: Within the limits prescribed by law, the court shall ascertain the term of confinement in the state correctional facility or in jail and the amount of fine, if any, when a person is convicted of a criminal offense, unless the accused is tried by a jury and has requested that the jury ascertain punishment. Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial.

A jury convicted Bland-Henderson of possessing a firearm after being previously convicted of a violent felony, and the trial judge sentenced him to the mandatory minimum of five years’ incarceration. The judge sentenced Bland-Henderson because Bland-Henderson did not file a written pleading requesting jury sentencing within 30 days prior to trial, but he did do so 13 days before trial. Bland-Henderson asked the circuit court to let the jury sentence him anyway, but the court said no.

On appeal Bland-Henderson argues that both shalls are directory and, thus, even if he failed to file a timely request for a jury sentencing, the circuit court was not required to impose the sentence, because the first “shall” does not mandate that the court sentence a defendant, only that it may do so, and the second does not prohibit a defendant from asking for a jury sentencing less than 30 days before trial. The Court of Appeals disagrees, finding that the second “shall” is plainly mandatory – a defendant must request jury sentencing in a written pleading at least 30 days before trial. The opinion has a lengthy and comprehensive discussion of the “can/must” dichotomy in construing “shall”.

But what of the first “shall”? The Court does not expressly say so, but one would presume that it too is directory – that is, when no valid request for jury sentencing is made, the trial court should be the one determine the sentence of a convicted defendant – otherwise no one would, but, presuming the trial court were willing to do so, could it honor a late filing of a jury sentencing demand. I don’t think the Commonwealth would like it and I doubt many judges would consider doing so, but the Court of Appeals began its discussion by saying that when applied to court, must is generally directory and not mandatory.

There is, of course, one point that the Court of Appeals overlooked, or perhaps recognized, but chose not to address. That is that even if Bland-Henderson was correct that the circuit court somehow erred in not allowing the jury to sentence him, that error was plainly harmless because the mandatory sentence for being a felony in possession is also the maximum sentence allowed. Once Bland-Henderson was convicted, he was getting five years no matter who imposed the sentence, so why bother?

Well, the Court bothered because Bland-Henderson also appealed the circuit court’s not permitting him to ask the prospective jurors about their views on mandatory sentences. If the court erred in not allowing jury sentencing, the analysis of this issue might be different. As it is, the Court quite sensibly says that as the jury was going to be sentencing the defendant, their views on sentencing were irrelevant. Bland-Henderson also challenged the sufficiency of the evidence because it was basically his word against that of the arresting officer, which the Court found to be sufficient in less than a page of analysis.

The defendant in Jose Guadalupe Vera, Jr. v. Commonwealth of Virginia had a prescription for the substance, gamma-hydroxybutyrate better known as GHB. GHB has legitimate uses for treating certain diseases including narcolepsy, from which Vera suffers, but it is sometimes used as a 'party drug' in the dance and club scene. It produces feelings of euphoria, relaxation and sociability, and an increased urge for sex. Vera, who was 18, and a 17-year-old male friend, ingested GHB prior to “hanging out” with two female minors. Vera then offered GHB to the two females, but, taking the evidence in the light most favorable to the Commonwealth, did not tell them what that it was a drug. – Now, allow me to pause here to say that while I am fully willing to believe (or rather, required to accept under the standard of review) the testimony of the two girls (though one was very equivocal) that they did not know that Vera was offering them GHB, I do question the wisdom of their accepting the proffered substance in a shot glass without inquiring what it was. One testified she thought it was “tea.”

Anyway, the girls wound up in the hospital and Vera wound up charged with PWID – PWID, if you don’t know the lingo, is “possession with intent to distribute” some controlled substance. At trial, the Commonwealth sought to question Vera about a prior incident involving GHB, and he objected on the ground that this was inadmissible “prior bad acts” evidence. The circuit court overruled the objection, finding that the Commonwealth’s proffer that this evidence was admissible to prove Vera’s modus operandi and lack of mistake outweighed the prejudice of the bad act. As this was a bench trial, the court is presumed to have disregarded the prejudicial effect. Vera argued that he provided the drug to the girls as an “accommodation,” which is a misdemeanor, rather than a class five felony. The circuit court disagreed.

The Court of Appeals, Judge White joined by Judges Huff and Fulton, affirms. This is not really surprising – except that this is a published decision, so one suspects that the Court felt that the accommodation issue was sufficiently important to warrant publication, as the bad acts evidence aspect of the case was hardly a new or novel application of that law. I think it is fair to say that the Court may have had some doubt regarding the young ladies’ naïveté and perhaps wanted to give guidance for future such situations. In short, if you are going to share your party drug, make sure your friends know what it is first, or it’s a felony.

Clifton Haley Harper, Jr. v. Commonwealth of Virginia involves the rarely brought charge of subornation of perjury. Harper was charged with assaulting K.M. at a motel where the two were apparently occupying the same room. Despite an emergency protective order preventing Harper from having contact with K.M., he called her more than once from jail, which, naturally, were recorded. Harper professed his undying love for K.M. (well, he might not have used that exact phrase) and sought her aid in having the charges dismissed. He instructed her to “just not show up” or to testify that he “didn’t do anything” to her.

At Harper’s bond hearing, K.M. denied that she had been assaulted, but that she and Harper had argued. She also said she had lied to police. Her testimony, however, was very much at odds with the forensic evidence. Harper was eventually charged with several offenses arising from the assault and also with inducing K.M. to give false evidence.

At trial, K.M. revised her testimony from the bond hearing, admitting that Harper pushed her off the bed and against a wall and struck her. She admitted that the phone conversations with Harper “contributed” to her decision to perjure herself at the bond hearing.

Harper argued that he did not induce K.M. to commit perjury because her testimony at the bond hearing did not fully exonerate him because she had shown up at the hearing and had not said that he “didn’t do anything” to her. The circuit court did not agree and neither does the Court of Appeals.

In an opinion by Judge Humprheys joined by Judges Huff and AtLee, the Court finds that K.M.’s testimony at the bond hearing was false and that it was induced by Harper’s statements in the jail calls. It is not necessary for the defendant to “script” the false testimony for the perjuring witness, or even that the witness testifies as the defendant wants. Rather, it is enough to show that the witness testified falsely because of the actions of the defendant. Harper also challenge a conviction for failure to appear, but the Court found that his argument was not properly preserved in the trial court.

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