Criminal: General Assembly’s 2021 amendments aren’t retroactive

Where a man argued the General Assembly’s 2021 amendments to the probation violation re-sentencing scheme were retroactive, but no explicit or unequivocal language in the 2021 amendments states that they retroactively modify or annul provisions in prior criminal sentencing orders, this argument was rejected.

Background

In 2003, Stanley Edward Johnson-Bey was convicted of a drug offense and given a suspended sentence. In 2022, following his fifth violation of the conditions of his probation and suspended sentence, the sentencing court imposed a portion of Johnson-Bey’s then-remaining suspended sentence. Claiming that the court had erred in doing so, Johnson-Bey appealed. The Court of Appeals rejected Johnson-Bey’s arguments,

Law

Code § 19.2-303 provides that circuit courts may “suspend imposition” of a criminal sentence “in whole or part” and “place the defendant on probation under such conditions as the court shall determine.” At the time of Johnson-Bey’s 2003 conviction, Code § 19.2-303.1 authorized the circuit court to “fix the period of suspension for a reasonable time . . . without regard to the maximum period for which the defendant might have been sentenced.”

The 2003 sentencing order in Johnson-Bey’s case relied upon this provision when the circuit court ordered an indefinite suspension period conditioned on Johnson-Bey’s good behavior and compliance with supervised probation. This statutory provision remained in place when the court entered revocation orders in 2005, 2008, 2017 and 2019.

In 2021, the General Assembly amended and reenacted Code §§ 19.2-303.1 and 19.2-306. Code § 19.2-303.1 established a statutory maximum suspension period for suspended sentences: “In any case where a court suspends the imposition or execution of a sentence, it may fix the period of suspension for up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned.”

When courts resuspend defendants’ sentences, Code § 19.2-306(C) stated that they may do so “for a period up to the statutory maximum period for which the defendant might originally have been sentenced to be imprisoned, less any time already served, and may place the defendant upon terms and conditions or probation.” The “period of any suspension,” Code § 19.2-306(C) added, shall be measured “from the date of the entry of the original sentencing order.”

Analysis

Johnson-Bey argues the amendment to Code § 19.2-306(A), which became effective on July 1, 2021, stripped the circuit court of jurisdiction to enter a revocation order. A reenacted statute “will be applied retroactively only if the bill or act of assembly containing the legislation explicitly and unequivocally meets the requirements” of Code § 1-238.

No explicit or unequivocal language in the 2021 amendments states that they retroactively modify or annul provisions in prior criminal sentencing orders. Johnson-Bey’s 2003 conviction order and all subsequent revocation orders in 2005, 2008, 2017, 2019 and 2022 involve criminal offenses or suspended-sentence violations committed prior to the effective date of the 2021 amendments to Code §§ 19.2-303.1 and 19.2-306(C). These statutory amendments did not limit the court’s sentencing options at the May 2022 revocation hearing because they did not retroactively apply to the underlying crime or any of the violations of the suspended-sentence conditions.

Johnson-Bey contends that, even when viewed prospectively, the 2021 amendments withdrew the authority of the revocation court to review his case. And even if judicial review were possible, Johnson-Bey adds, the revocation court would be obligated to apply the new maximum suspension period because it implicates only procedural, not substantive, interests. This court finds both assertions unpersuasive.

Affirmed.

Johnson-Bey v. Commonwealth, Record No. 230619, Nov. 27, 2024 (Kelsey). From the Court of Appeals of Virginia. VLW 024-6-040. 9 pp.