Bland-Henderson v. Commonwealth, Record No. 1359-21-2 (Va. Ct. App. Apr. 11, 2023)

What does the word “shall” mean? It depends on who you are…

Facts. When a jury decides a defendant’s guilt, the court will decide the defendant’s sentence unless the defendant requests to have the jury sentence him as well. Code § 19.2‑295(A) provides that “[s]uch request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial.” Travis Bland-Henderson was scheduled to be tried for possessing a firearm after being a previously convicted violent felon on September 21, 2021. He filed a written request to have the jury also decide his sentence on September 8, only thirteen days before trial.

The trial court denied Bland-Henderson’s motion for jury sentencing as untimely. The trial court also prohibited Bland-Henderson from telling the jury during voir dire that his charge carried a five-year mandatory-minimum sentence. Bland-Henderson was convicted of the charge and appealed.

Issue. (1) Whether the word “shall” in Code § 19.2‑295(A) is mandatory, requiring forfeiture of the right to a jury sentencing if the statute is not complied with. (2) Whether a defendant has the right to notify a jury of their potential punishment range.

Holding. (1) There is a presumption that “shall” is mandatory (means must) when the statute in question commands action by a private litigant, unless the context suggests otherwise. (2) A defendant may only inform the jury of their potential range of punishment if the jury will sentence the defendant.

Notes. (1) After an extensive history of the various uses of the word “shall” in legal texts and analysis of the dozens of cases in which the Supreme Court of Virginia has interpreted the word, the Court of Appeals concludes that our appellate courts generally read “shall” as directory (should or will), rather than mandatory (must), when applied to public officials or bodies unless context suggests otherwise. The “natural” corollary to this is that when a statute or rule uses “shall” to command action by a private litigant, it is best understood as mandatory unless the statutory text or context suggests otherwise. Beware of the caveat “unless context suggests otherwise:” these interpretations are only rebuttable presumptions, not rules. For example, a private litigant might not forfeit a right by failing to comply with a “shall” requirement if that statute includes a good-cause exception. In Bland-Henderson’s case, however, the Court holds that the presumption was unrebutted. There is nothing in Code § 19.2‑295(A) that suggests that “shall” should be read as anything but mandatory.

(2) This one is easy and was decided by the Court of Appeals in Rock v. Commonwealth, 76 Va. App. 419 (2023) just a few months before this case was decided. The plain language of Code § 19.2‑262.01 makes clear that the only purpose for which a jury can be informed of a defendant’s sentencing range is to ascertain if the juror can sit impartially in the sentencing phase. Where a defendant is not entitled to jury sentencing, that purpose does not exist.

Read the Opinion.