COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Richmond, Virginia 

DANIEL ERIC BOYD 

 OPINION BY 

v. Record No. 1485-97-2 JUDGE LARRY G. ELDER 

 DECEMBER 1, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Donald W. Lemons, Judge 

 John B. Mann (Levit & Mann, on brief), for 

appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Daniel Boyd (appellant) appeals from the sentences imposed 

for his jury trial convictions on two related cocaine offenses. 

He contends the trial court violated his due process rights by 

imposing pursuant to Code § 18.2-10(g) additional punishment for 

each offense in the form of a suspended term of post-release 

incarceration, which was "conditioned upon his successful 

completion of a period of post-release supervision pursuant to 

§ 19.2-295.2." For the reasons that follow, we reject 

appellant's contention and affirm his sentences. 

 I. 

 FACTS 

 On April 9, 1997, appellant was convicted by a jury for 

possession of cocaine with intent to distribute, after previously 

having been convicted of a like offense, and for possession of 
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cocaine with intent to distribute within one-thousand feet of a 

school, in violation of Code §§ 18.2-248 and 18.2-255.2, 

respectively. Both offenses occurred on June 11, 1996. The jury 

fixed punishment at five years and a $1 fine on the first charge 

and one year and a $1 fine on the second charge. 

 On May 19, 1997, the trial judge sentenced appellant in 

accordance with the jury verdicts. In addition, pursuant to Code 

§ 18.2-10, he sentenced appellant to a suspended post-release 

term of three years on each offense. Pursuant to Code 

§ 19.2-295.2(A), he imposed a three-year term of post-release 

supervision on each charge. Counsel for appellant objected, 

arguing that the post-release terms violated appellant's right to 

due process because they were beyond the sentences imposed by the 

jury. The trial court rejected appellant's contention, and this 

appeal followed. 

 II. 

 ANALYSIS 

 Appellant contends the trial court's imposition of 

post-release terms of suspended incarceration and supervision 

under Code §§ 18.2-10 and 19.2-295.2 violated his due process 

right to be sentenced by the jury. Guided by the logic we 

employed in Allard v. Commonwealth, 24 Va. App. 57, 480 S.E.2d 

139 (1997),1

 we affirm appellant's sentences. 

 

 1Appellant contends that the portion of Allard rejecting the 

argument he advances here is dicta and, therefore, is not 

controlling. Assuming without deciding that appellant is correct, 

we remain free to make independent application of the reasoning in 
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 In Virginia, the legislature has given juries the power to 

"sentence [a] defendant according to the evidence in the trial 

and within the limits set by the General Assembly for the crimes 

committed." See Walker v. Commonwealth, 25 Va. App. 50, 62, 486 

S.E.2d 126, 132 (1997); see also Code §§ 19.2-295, 19.2-295.1. 

"This phenomenon [of jury sentencing] did not arise by accident; 

the General Assembly made a conscious decision to depart from the 

common law, under which the court sentenced the defendant." 

Walker, 25 Va. App. at 61, 486 S.E.2d at 131-32. 

 However, nothing in the United States or Virginia 

Constitution gives a defendant the right to be sentenced by a 

jury or solely by a jury. See Fogg v. Commonwealth, 215 Va. 164, 

166-67, 207 S.E.2d 847, 849-50 (1974). As we recognized in 

Allard, "'[t]he choice of sentencing procedures is a matter for 

legislative determination[,]' [and] . . . under Virginia's 

statutory scheme, the sentence ascertained by the jury is not 

final or absolute." Allard, 24 Va. App. at 67, 480 S.E.2d at 144 

(quoting Duncan v. Commonwealth, 2 Va. App. 342, 344-45, 343 

S.E.2d 392, 393-94 (1986)). 

 Code § 19.2-303, for example, provides that, "[a]fter 

conviction, whether with or without a jury, the court may suspend 

imposition of sentence or suspend the sentence in whole or part 

and in addition may place the accused on probation under such 

conditions as the court shall determine . . . ." That statutory 

 

Allard to the facts of this case. 
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authorization is long standing in Virginia. See 1918 Acts ch. 

349 § 2 (enacting predecessor code section). Similarly, Code 

§ 19.2-295.2, and related provisions in Code § 18.2-10,2

expressly permit the court under certain circumstances to enlarge 

the sentence recommended by the jury: 

 

 2The relevant portions of Code § 18.2-10 provide: 

 For any felony offense committed on or after 

January 1, 1995, the court may impose an 

additional term of not less than six months 

nor more than three years, which shall be 

suspended conditioned upon successful 

completion of a period of post-release 

supervision pursuant to § 19.2-295.2 and 

compliance with such other terms as the 

sentencing court may require. However, such 

additional term may only be imposed when the 

sentence includes an active term of 

incarceration in a correctional facility. 

Code § 19.2-295.2(A) paraphrases this language and contains 

additional provisions regarding the period of supervision. 

 At the time the court imposes sentence upon a 

conviction for any felony offense committed 

on or after January 1, 1995, the court may, 

in addition to any other punishment imposed 

if such other punishment includes an active 

term of incarceration in a state or local 

correctional facility, impose a term in 

addition to the active term of not less than 

six months nor more than three years, as the 

court may determine. Such additional term 

shall be suspended and the defendant placed 

under post-release supervision upon release 

from the active term of incarceration. 

Code § 19.2-295.2(A). 
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 Appellant contends that Code § 19.2-295.1, which provides 

for bifurcated jury sentencing,3

 gives an accused a due process 

right to be sentenced by a jury, thereby rendering 

unconstitutional the provisions of Code § 19.2-295.2, which 

permit the imposition of a post-release suspended sentence and 

supervision. Again, guided by the reasoning in Allard, we 

disagree. 

 

 3Code § 19.2-295.1 provides that, "[i]n cases of trial by jury, 

upon a finding that the defendant is guilty of a felony, a 

separate proceeding limited to the ascertainment of punishment 

shall be held as soon as practicable before the same jury." In 

that proceeding, the Commonwealth may introduce evidence of 

aggravating factors, including prior convictions, and "the 

defendant may introduce relevant, admissible evidence related to 

punishment." Id.

 Although we did not expressly consider the provisions of 

Code § 19.2-295.1 in Allard, we discussed principles of statutory 

interpretation that are equally applicable here. As we said in 

Allard, "[a] fundamental rule of statutory construction requires 

that courts view the entire body of legislation and the statutory 

scheme to determine the 'true intention of each part.'" 24 Va. 

App. at 67, 480 S.E.2d at 144 (quoting Virginia Real Estate Bd. 

v. Clay, 9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989) (quoting 

McDaniel v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 

(1957))). "To do so, '[t]wo statutes which are closely 

interrelated must be read and construed together and effect given 

to all of their provisions.' Potentially conflicting statutes 

should be harmonized to give force and effect to each." Zamani 

v. Commonwealth, 26 Va. App. 59, 63, 492 S.E.2d 854, 856 (1997) 

(quoting ACB Trucking, Inc. v. Griffin, 5 Va. App. 542, 547-48, 
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365 S.E.2d 334, 337-38 (1988)). 

 To interpret Code § 19.2-295.1 in the manner appellant urges 

would violate these principles. Furthermore, as we reasoned in 

Allard, "a plain reading" of § 19.2-295.2 "reveals that [it] 

applies to both bench and jury trials." 24 Va. App. at 67, 480 

S.E.2d at 144. Therefore, we hold that the legislature intended 

the procedures outlined in Code § 19.2-295.1 for the jury's 

ascertainment of punishment to be subject to (1) the provisions 

of § 19.2-295, which require the jury's sentence to be "[w]ithin 

the limits prescribed by law"; (2) the provisions of 

§ 19.2-295.2, which permit the trial court to impose a suspended 

term of incarceration and post-release supervision when the 

jury's sentence includes an active term of incarceration; and (3) 

the provisions of Code § 19.2-303, which permit the trial court 

to suspend some or all of a sentence and impose probation. 

 As construed above, the provisions of Code § 19.2-295.2 do 

not violate due process as alleged by appellant and do not 

conflict with Code §§ 19.2-295, 19.2-295.1 or 19.2-303. 

Therefore, the trial court did not violate appellant's due 

process rights by imposing post-release periods of suspended 

incarceration and supervision pursuant to Code § 19.2-295.2. 

 For these reasons, we affirm appellant's sentences. 

Affirmed.