COURT OF APPEALS OF VIRGINIA

Present: Judges Huff, Malveaux and Senior Judge Annunziata Argued by videoconference

JUSTIN BLAKE COX OPINION BY v. Record No. 1360

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- 4 JUDGE GLEN A. HUFF JULY 6, 2021 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FREDERICK COUNTY

Alexander R. Iden, Judge Ryan Campbell ( King, Campbell & Poretz, PLLC , on brief), for appellant. Timothy J. Huffstutter , Assistant Attorney General (Mark R. Herring, Attorney Gen eral, on brief), for appellee

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Pursuant to a nolo contendere plea, Justin Blake Cox (“appellant”) was convicted on one count each of forcible sodomy, abduction with the intent to defile, sexual battery, and providing alcohol to a minor. Following those convictions and appellant’s sentencing hearing , appellant file d an emergency motion to vacate his sentence. In that motion, appellant took issue with the fact that the Frederick County Circuit Court (the “trial court”) did not order a psychosexual evaluation of him and have the report from that evaluation be part of its consideration for sentencing

— an omission which appellant asserts was contrary to statut e. The trial court denied appellant’s motion, and appellant now appeals from that decision . For the reasons that follow, this Court affirms the judgment of the tr ial court

. I. BACKGROUND On appeal, this Court “ consider [s] the evidence and all reasonable inferences flowing from that evidence in the light most favorable to the Commonwealth, the prevailing party at PUBLISHED- 2

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trial.” Williams v. Commonwealth , 49 Va. App. 439, 442 (2007) ( en banc ) (quoting Jackson v. Commonwealth , 267 Va. 666, 672 (2004)). Viewed through this lens, the evidence shows the following: Appellant was indicted for two counts of rape, two counts of forcible sodomy, and one count each of attempted forc ible sodomy, abduction with intent to defile, sexual battery, contributing to the delinquency of a minor, and providing alcohol to a minor. 1 Appellant entered into a plea agreement, which provided that appellant would plea d nolo contendere to one charge of forcible sodomy as well as the charges of abduction with the intent to defile, sexual battery, and providing alcohol to a minor . I n exchange , the Commonwealth agree d to nolle pros equi the remaining charges. T he parties agree d to the preparation of a presentence report . T he plea agreement did not contain any terms as to sentencing. At the conclusion of a hearing on March 5, 2020, the trial court accepted the plea agreement and convicted appellant on each of the offenses as set forth in the agreement. On March 18, 2020, the trial court entered a conviction order memorializing its rulings from the prior plea hearing. On June 25, 2020, the trial court held a sentencing hearing. In that hearing, neither party requested that the t

rial court order a psychosexual evaluation of appellant or that the court defer sentencing to allow for such an evaluation and report. At the conclusion of the hearing, the trial court sentenced appellant as follows: fifty years, with forty years suspend ed, for forcible sodomy , fifty years, with forty years suspended, for abduction with the intent to defile , twelve months for sexual battery , and twelve months for providing alcohol to a minor. On July 21, 2020 the trial court entered a sentencing order me morializing its rulings from the sentencing hearing. On July 17, 2020

— after the trial court’s sentencing pronouncement but prior to the trial court’s entry of its written sentencing order

— appellant filed an emergency motion to vacate his

1 The victim in each charge was C.S., appellant’s then sixteen

- year - old niece.- 3

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sentence. In that motion, he argued, among other things, that Code § 19.2

- 301 required the trial court to order and consider a psychosexual evaluation and accompanying report of him prior to sentencing. A ppellant requested that the trial court “vacate the current sentenci ng order, order a psychosexual evaluation, and set the matter for a new sentencing hearing.” In light of appellant’s motion, the trial court entered an order stay ing execution of appellant’s sentence and retain ing jurisdiction of the matter pending a heari ng on appellant’s motion. Following the August 28, 2020 hearing on appellant’s motion to vacate, the trial court
denied appellant’s motion, ruling that (1) Code § 19.2

- 301 did not independently require psychosexual evaluations of all defendants prior to s entencing , and (2) Code §§ 19.2

- 300 and

- 301 read together require such evaluations only when requested by one of the parties prior to sentencing. On September 8, 2020, the trial court entered an order which lift ed the stay o f execution of appellant’s sen tence and memorialized its denial of appellant’s motion to vacate

. This appeal followed.
II. STANDARD OF REVIEW Appellant’s assignment of error alleges that the trial court misconstrued Virginia’s Code of Criminal Procedure in denying his motion to vacate the sentence and order a psychosexual evaluation

. Accordingly, the assignment of error presents a question of “pure statutory interpretation” that this Court review s de novo

. Eley v. Commonwealth , 70 Va. App. 158, 162 (2019).
III. ANALYSIS Appell ant avers that the trial court erred in denying his motion to vacate the sentence. Specifically, he contends the trial court was required by Code § 19.2

- 301 to order that he undergo psychosexual evaluat ion prior to sentencing, even though neither he nor t he Commonwealth moved for such an evaluation prior to sentencing. He further argues that- 4

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because, in his view, Code § 19.2

- 301 imposes an unqualified duty on trial courts to order mental evaluations of defendants prior to sentencing, a trial court cannot circumvent that duty unless it finds that a defendant knowingly waives his or her right to a mental evaluation and accompanying report. This Court disagree s with appellant’s reading of the statutory scheme. “The primary objective of statutory construction is to determine legislative intent. In determining that intent, words are to be given their ordinary meaning, unless it is apparent that the legislative intent is otherwise.” Phelps v. Commonwealth , 275 Va. 139, 142 (2008) ; see also Doulgerakis v. Commo nwealth , 61 Va. App. 417, 420 (2013) (emphasizing that this Court “must assume that the legislature chose, with care, the words it used . . . and [this Court is] bound by those words as [it] interpret[s] the statute” (internal citations and quotation marks omitted ) )

. I n interpreting statutes according to their ordinary meaning, this Court considers them in pari
materia , meaning this Court will not examine statutes “as isolated fragments of law, but as a whole, or as parts of a great connected, homogenous s ystem, or a single and complete statutory arrangement.” Prillaman v. Commonwealth , 199 Va. 401, 405 (1957) (quoting 50 Am. Jur.,
Statutes , § 349). If the relevant language of a statute in question is ambiguous, this Court “must apply the interpretation th at will carry out the legislative intent behind the statute.” Conyers v. Martial Arts World of Richmond, Inc. , 273 Va. 96, 104 (2007) (citation omitted). Nevertheless, in determining whether there is ambiguity in statutory language, this Court is careful to ensure that statutes “not . . . be construed by singling out a particular phrase.” Eberhardt v. Fairfax Cnty. Employees’ Retirement Sys. Bd. o f Trustees , 283 Va. 190, 195 (2012) (internal citation and quotation marks omitted). As such, even if statut ory language is subject to different interpretations when viewed in isolation, this Court will not consider language to be ambiguous- 5

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when its meaning is clear “in context.” Eley , 70 Va. App. at 164 (quoting Blake v. Commonwealth , 288 Va. 375, 382 (2014)). Finally, when this Court interprets penal statutes, it construes them “strictly against the Commonwealth,” granting a defendant “the benefit of any reasonable doubt about the[ir] construction.” Foley v. Commonwealth , 63 Va. App. 186, 192 (2014) (quoting Harris v. Commonwealth , 274 Va. 409, 415 (2007)). In doing so, however, this Court “will not apply an unreasonably restrictive interpretation of the statute that would subvert the legislative intent expressed therein.” Armstrong v. Commonwealth , 263 Va. 573, 581 (2002) (internal citation and quotation marks omitted).
T he statute upon which appellant relies is Code § 19.2

- 301 , which falls under the sentencing chapter of Virginia’s Code of Criminal Procedure . He specifically points to the opening sentence of the statute, which reads “The judge shall order the defendant examined by at least one psychiatrist or clinical psychologist who is qualified by specialized training and experience to perform such evaluations.” Viewed in isolation, one might reasonably understand that statutory language to independently require a trial court to order a psychosexual evaluation of a defendant at some point prior to sentencing. But a more comprehensive reading of the statutory scheme shows otherwise. To begin with, the ti tle of Code § 19.2

- 301 reads “Judge shall require examination under § 19.2

- 300 [.] ” ( E mphasis added). 2 And when looking to the text of Code § 19.2

- 300 , i t becomes clear that a trial court’s obligation to order a psychosexual evaluation is conditional, not absolute:

2 Of course, the title of a statutory section is “for information and convenience” and “does not give meaning to [the] statute.” Foster v. Commonwealth , 44 Va. App. 574, 580 (20 04). As such, this Court does not hold that the title of Code § 19.2

- 301 has any independent force, but rather simply notes that in this case, the title provides a clue that consideration of the statutory scheme, in context, requires Code § 19.2

- 301 to be read in conjunction with the text of Code § 19.2

- 300.- 6

- In the case of the conviction in any circuit court of any person for any criminal offense which indicates sexual abnormality, the trial judge may on his own initiative, or shall upon application of the attorney for the Commonwealth, the defendant, or couns el for defendant or other person acting for the defendant, defer sentence until the report of a mental examination conducted as provided in § 19.2

- 301 of the defendant can be secured to guide the judge in determining what disposition shall be made of the d efendant. (Emphasis added). When read in conjunction with Code § 19.2

- 301, the plain import of this language is that a trial court is required to defer sentencing of a defendant only when one of the parties requests mental examination of the defendant. Se e Alsberry v. Commonwealth , 39 Va. App. 314, 318 (2002) (“[T]he decision to order a mental examination under Code § 19.2

- 300 is not discretionary when a defendant who has been convicted of an offense indicating sexual abnormality requests such an evaluatio n prior to sentencing for that conviction.”). Alternatively, if neither party makes such a request, the trial court may

— but is not required to

— defer sentencing and order a mental examination on its own initiative. And once the process of securing a menta l examination of the defendant is initiated

— whether by application of one of the parties or on the court’s own motion

— the remaining process of administering the mental examination must then be “conducted as provided in” Code § 19.2

- 301. 3 In this way, Cod e

3 For reference, the full text of Code § 19.2

- 301 and its procedural requirements reads as follows: The judge shall order the defendant examined by at least one

psychiatrist or clinical psychologist w ho is qualified by specialized training and experience to perform such evaluations. Upon a finding by the court that a psychiatrist or clinical psychologist is not reasonably available for the instant case, the court may appoint a state licensed clinical social worker who has been certified by the Commonwealth as a sex offender treatment provider as defined in § 54.1

- 3600 and qualified by experience and by specialized training approved by the Commissioner of Behavioral Health and Developmental Services to perform such evaluations. The- 7

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§ 19.2

- 301 does not even come into play unless one of the triggering conditions in Code § 19.2

- 300 is met. In short, Code § 19.2

- 301 does not independently require trial courts to order a mental examination of a defendant prior to sentencing. Instead, it simply provides that when the process of securing a mental examination of a defendant is initiated pursuant to Code § 19.2

- 300, a judge “shall” thereafter order a mental examination in accordance with specific parameters and

examination shall be performed on an outpatient basis at a mental health facility or in jail. However, if the court specifically finds that outpatient examination services are unavailable or if the results of outpatient exam ination indicate that hospitalization of the defendant for further examination is necessary, the court may order the defendant sent to a hospital designated by the Commissioner of Behavioral Health and Developmental Services as appropriate for examination of persons convicted of crimes. The defendant shall then be hospitalized for such time as the director of the hospital deems necessary to perform an adequate examination, but not to exceed 30 days from the date of admission to the hospital. Upon completi on of the examination, the examiners shall prepare a written report of their findings and conclusions and shall furnish copies of such report to the defendant, counsel for the defendant, and the attorney for the Commonwealth at least five days prior to sen tencing and shall furnish a copy of the report to the judge in advance of the sentencing hearing. The report of the examiners shall at all times be kept confidential by each recipient, except to the extent necessary for the prosecution or defense of any o ffense, and shall be filed as part of the record in the case and the defendant ’ s copy shall be returned to the court at the conclusion of sentencing. Any report so filed shall be sealed upon the entry of the sentencing order by the court and made availabl e only by court order, except that such report or copies thereof shall be available at any time to the office of the Attorney General for assessment for civil commitment as provided in Chapter 9 ( 37.2

- 900 et seq.) of Title 37.2; any criminal justice agency , as defined in § 9.1

- 101 , of this or any other state or of the United States; to any agency where the accused is referred for treatment by the court or by probation and parole services; and to counsel for any person who has been indicted jointly for the s ame felony as the person who is the subject of the report. Any such report shall without court order be made available to counsel for the person who is the subject of the report if that person is charged with a felony subsequent to the time of the prepara tion of the report.- 8

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procedures. 4 Accordingly, t his Court finds no error in the trial court’s reading of the statutory scheme or in its decision to deny appe llant’s motion to vacate

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IV. CONCLUSION For the foregoing reasons, this Court affirm s the judgment of the trial court

. Affirm ed

.

4 It also bears mentioning that this Court’s reading of the statut ory scheme not only represents the most natural and harmonious reading of the scheme, but also avoids a troubling consequence inherent in appellant’s interpretation: a c omplete nullification of Code § 19.2

- 300’s conditional language

. See Hubbard v. Henrico Ltd. Partnership , 255 Va. 335, 340 (1998) ( “ [E] very part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary.” ).

5 Because this Court does not read Code § 19.2

- 301 to independently grant a defendant an absolute and unqualified right to a psychosexual evaluation and report prior to sentencing, there is no need to address appellant’s secondary contention that a trial court must find that a defendant affirmatively waived his or her “right” to that evaluation and report.