PRESENT: All the Justices ALPHONZO DORRELL GRAVES OPINION BY v. Record No. 160688 JUSTICE STEPHEN R. McCULLOUGH October 12, 2017 COMMONWEALTH OF VIRGINIA FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Milam, Judge The Circuit Court of the City of Danville convicted Alphonzo D. Graves of, among other crimes, using a firearm in the commission of a felony, in violation of Code § 18.2-53.1. On July 6, 2007, the circuit court sentenced him to five years’ imprisonment with two years suspended on this charge. Graves challenges this sentence, arguing that the trial court sentenced him in excess of the statutory maximum. We agree with his construction of the statute, as does the Commonwealth. Accordingly, we reverse the judgment of the circuit court insofar as it imposes a sentence exceeding the punishment authorized by the General Assembly in Code § 18.2-53.1, vacate the two year suspended sentence, and remand the case for entry of a new sentencing order in conformity with this opinion. 1 BACKGROUND Graves pled guilty to a number of charges in connection with a murder, including use of a firearm in the commission of a felony. In February 2016, he filed a motion to vacate his sentence for use of a firearm in the commission of a felony. He objected to the imposition of a five-year prison sentence, arguing that it exceeded the statutory maximum and was, therefore, 1 Motions to vacate are civil matters and an appeal from a granted or denied motion to vacate lies to this Court. Commonwealth v. Southerly, 262 Va. 294, 299-300, 551 S.E.2d 650, 653 (2001). void. The trial court denied that motion, as well as a motion to reconsider. This appeal followed. ANALYSIS We review a trial court’s interpretation of a statute de novo. Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006). Code § 18.2-53.1 provides in relevant part: It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder . . . . Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a second or subsequent conviction under the provisions of this section. Such punishment shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony. In Hines v. Commonwealth, 59 Va. App. 567, 721 S.E.2d 792 (2012), a divided panel of the Court of Appeals of Virginia held that the three-year “mandatory minimum” sentence in Code § 18.2-53.1 constitutes both the mandatory minimum and the mandatory maximum. Id. at 575-80, 721 S.E.2d at 795-98. Given the unique background of Code § 18.2-53.1, we agree with the Court of Appeals. I. ...
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