How does Virginia's 2020 earned sentence credit law (House Bill 5148, amending § 53.1-202.3 effective July 1, 2022) apply to inchoate offenses (attempt, conspiracy, solicitation, accessory before the fact), to aggravated murder, and to repeat offense provisions?

Subject

Answers to various questions about the application of House Bill 5148, which amends § 53.1-202.3 to provide for a new earned sentence credit rate schedule.

Plain-English summary

In 2020, the Virginia General Assembly enacted House Bill 5148 to expand earned sentence credits for state prisoners. The bill, effective July 1, 2022, amended Va. Code § 53.1-202.3 to let many inmates earn up to 15 days of sentence credit for every 30 days served (up from 4.5 days). Inmates convicted of certain serious offenses listed in subsection (A) remain capped at 4.5 days per 30 days. The list of excluded offenses is long and technical.

The Director of the Virginia Department of Corrections asked the Attorney General for guidance on four interpretive questions about who falls inside the excluded category. The answers shape thousands of inmates' release dates.

Question 1: What does "any felony violation" cover?

The AG concluded that "any felony violation" of a listed code section includes the completed offense. It also includes accessory before the fact and principal in the second degree, because Va. Code § 18.2-18 generally treats those modifiers as principals in the first degree. Solicitation, however, is treated narrowly. The statute explicitly names solicitation to commit murder in § 53.1-202.3(A)(2), which means solicitation to commit other listed crimes is not implicitly excluded. Attempts are similarly treated narrowly: only attempts within § 18.2-67.5 (attempted rape, forcible sodomy, object sexual penetration, aggravated sexual battery) are excluded; attempts to commit other listed offenses are not.

Question 2: Aggravated murder and its modifiers.

Aggravated murder (§ 18.2-31) is a Class 1 felony, and Class 1 felonies are excluded from enhanced credits under § 53.1-202.3(A)(1). Solicitation to commit aggravated murder is excluded by § 53.1-202.3(A)(2). Accessory before the fact and principal in the second degree to aggravated murder are excluded because § 18.2-18 treats them as if they committed first degree murder, which is itself excluded by the statute. But conspiracy to commit aggravated murder and attempted aggravated murder are not directly referenced in § 53.1-202.3(A) and therefore remain eligible for enhanced credits.

Question 3: Section 18.2-67.5 (attempted sexual offenses).

Yes, § 53.1-202.3(A)(10) excludes the attempted rape, forcible sodomy, object sexual penetration, and aggravated sexual battery offenses defined in § 18.2-67.5, because subsection (A)(10) covers "[c]riminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.)."

Question 4: Repeat-offender exclusions under § 53.1-202.3(A)(17).

The (A)(17) exclusions apply only when both the prior and current offenses are listed in that subdivision. So if the first violation was malicious felonious assault and is not listed there, a subsequent § 18.2-51 violation isn't covered by the exclusion. Same for § 18.2-92 following a prior § 18.2-90 violation: not covered.

What this means for you

For VDOC sentence calculation staff

The opinion provides line-item guidance on applying the 4.5-day-per-30 cap under § 53.1-202.3(A):

• "Any felony violation" of a listed section includes the completed offense plus accessories before the fact and principals in the second degree.
• Solicitation is excluded from enhanced credits only for murder; for other listed crimes, solicitation does not trigger the cap.
• Attempts are excluded only for the sexual assault offenses in § 18.2-67.5; attempts to commit other listed offenses do not trigger the cap.
• For aggravated murder, the modifiers of solicitation, accessory before the fact, and principal in the second degree are excluded, but conspiracy and attempt are not.
• The (A)(17) repeat-offender exclusions apply only when both the prior and current offenses are listed in that subdivision.

For criminal defense attorneys and post-conviction lawyers

The opinion holds that a conviction for an attempt or solicitation outside the (A)(2) and (A)(10) categories is not swept into the cap by the phrase "any felony violation," and that conspiracy to commit and attempted aggravated murder remain eligible for the enhanced credit rate.

For prosecutors

The opinion holds that a defendant convicted of attempted aggravated murder or conspiracy to commit aggravated murder is not excluded from enhanced earned sentence credits, unlike one convicted of completed aggravated murder, solicitation to commit it, or as an accessory before the fact or principal in the second degree.

For inmates and their families

The opinion holds that earned sentence credits turn on whether the conviction falls within the categorical exclusions in § 53.1-202.3(A), as narrowed by the AG's reading of solicitation and attempt. A conviction for an attempt or solicitation that the opinion reads as outside the exclusions earns at the enhanced rate.

Common questions

What did House Bill 5148 actually change?
Effective July 1, 2022, it expanded earned sentence credits from up to 4.5 days per 30 days served to up to 15 days per 30 for many inmates. Inmates convicted of offenses listed in § 53.1-202.3(A) remain capped at 4.5 days.

Does "any felony violation" cover attempts?
Generally no. The General Assembly listed specific attempts in § 53.1-202.3(A)(10) by incorporating § 18.2-67.5. Where attempts aren't explicitly included, the AG read them out under the statutory canon that listing some attempts excludes others.

Are accessories before the fact and principals in the second degree excluded?
Yes, except in narrow scenarios. Section 18.2-18 generally treats them as principals in the first degree, so they get the same credit treatment as the principal. For aggravated murder, § 18.2-18 treats them as first-degree murderers, which is also excluded.

Is solicitation excluded?
Only for murder. Section 53.1-202.3(A)(2) explicitly names solicitation to commit murder. Solicitation to commit other listed crimes is not implicitly within the exclusion.

Is conspiracy to commit aggravated murder excluded?
No. The AG noted that conspiracy to commit aggravated murder isn't directly referenced in the relevant subsections, so it remains eligible for enhanced credits.

Is attempted aggravated murder excluded?
No, for the same reason. Attempt to commit a Class 1 felony is itself a Class 2 felony, but the statute doesn't categorically exclude Class 2 felonies; it lists specific exclusions.

What about second-or-subsequent malicious assault offenses?
The (A)(17) exclusion applies only when both the prior and current offenses are within the subdivision's list. So if the first violation was malicious felonious assault (not listed in (A)(17)(e)), the exclusion doesn't trigger.

Background and statutory framework

Section 53.1-202.3 governs the rate at which inmates earn sentence credits. Before HB 5148, the cap was 4.5 days per 30 days served. HB 5148 amended subsection (A) to provide for up to 15 days per 30 for most inmates, with a 4.5-day cap retained for specific listed offenses.

The AG's analytical move was straightforward statutory construction. Where the General Assembly lists some inchoate variants (solicitation to commit murder; attempted sexual assault under § 18.2-67.5), the omission of others is presumed intentional. Brown v. Commonwealth, 284 Va. 538, 545 (2012). The rule against surplusage means each provision is presumed to have meaning, so a specific reference to "solicitation to commit murder" implies that solicitation to commit other listed crimes is not separately excluded by some other subsection.

The aggravated-murder analysis flows from § 18.2-18, which treats accessories before the fact and principals in the second degree to most felonies as principals in the first degree. For § 18.2-31(A)(2), (A)(10), and (A)(13) (specific aggravated-murder provisions), § 18.2-18 instead treats those modifiers as first-degree murder, which is itself a Class 2 felony excluded by § 53.1-202.3(A)(2).

Conspiracy and attempt to commit Class 1 felonies are graded as Class 3 and Class 2 felonies respectively under §§ 18.2-22 and 18.2-25. Those grades aren't categorically excluded by § 53.1-202.3, only specific offenses are. So conspiracy and attempted aggravated murder remain eligible for enhanced credits.

The (A)(17) repeat-offender provisions require careful matching of the prior offense to the listed predicates. The AG took the categorical view: if the prior offense isn't listed in (A)(17), the subsection's exclusion doesn't apply to the subsequent listed offense.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 18.2-18 (accessory before the fact; principal in second degree)
• Va. Code § 18.2-22 (conspiracy grading)
• Va. Code § 18.2-25 (attempt grading)
• Va. Code § 18.2-31 (aggravated murder)
• Va. Code § 18.2-32 (first-degree murder)
• Va. Code § 18.2-51; § 18.2-51.1 (assault offenses referenced in (A)(17))
• Va. Code § 18.2-61 et seq. (Article 7 criminal sexual assault)
• Va. Code § 18.2-67.5 (attempted sexual offenses)
• Va. Code § 18.2-90; § 18.2-92 (burglary-adjacent offenses referenced in (A)(17))
• Va. Code § 53.1-202.3 (earned sentence credit rate schedule)
• 2020 Va. Acts Spec. Sess. I (HB 5148)
• Chapman v. Virginia, 68 Va. App. 131 (2017)
• Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96 (2007)
• Jacobs v. Wilcoxson, 71 Va. App. 521 (2020)
• Boynton v. Kilgore, 271 Va. 220 (2006)
• Brown v. Commonwealth, 284 Va. 538 (2012)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: http://www.oag.state.va.us/files/Opinions/2021/21-068-Clarke-Issued.pdf

Original opinion text

Office of the Attorney General
Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

December 21, 2021

Harold W. Clarke, Director
Virginia Department of Corrections
Post Office Box 26963
Richmond, Virginia 23261

Dear Director Clarke:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask several questions regarding a provision of House Bill 5148, passed during the 2020 Special Session of the General Assembly, that amends § 53.1-202.3 of the Code of Virginia, effective July 1, 2022. The amendments provide for a new earned sentence credit rate schedule, but limit certain offenses to a maximum of 4.5 earned sentence credits for each 30 days served. Specifically, you ask the following:

1. When considering the language "any felony violation" does this include the completed act, as well as the other offense modifiers: Conspiracy, Attempts, Solicit, Solicit Juvenile to Commit, Accessory Before the Fact and Principal 2nd Degree?

2. If the above modifiers are also excluded from earning the enhanced earned sentence credits, is there language in the legislation excluding the modifiers for Aggravated Murder since § 53.1-202.3 does not specifically list § 18.2-31?

3. Does § 53.1-202.3(A)(10), by legal definition, include § 18.2-67.5 (Felony Attempted Rape, Forcible Sodomy, Object Sexual Penetration, Aggravated Sexual Battery)?

4. In § 53.1-202.3(17), a second or subsequent violation of § 18.2-51 or § 18.2-51.1 while such person was at liberty, would be excluded from the enhanced earned sentence credits. However, would such exclusion apply if the first violation of § 18.2-51 or § 18.2-51.1 was a malicious felonious assault? In the same way, in § 53.1-202.3(17)(g) would § 18.2-92 be excluded if the offender was previously convicted of violating § 18.2-90?

Applicable Law and Discussion

House Bill 5148 amends § 53.1-202.3, which prescribes the rate at which an inmate may earn sentence credits. As relevant to your inquiries, the amended version of § 53.1-202.3(A) provides for "[a] maximum of 4.5 sentence credits may be earned for each 30 days served on a sentence for a conviction for any offense" enumerated in the statute.

1. "Felony" Language and Offense Modifiers

You first ask whether the phrase "any felony violation," as it appears in several subsections of the revised statute, includes the substantive completed offense, as well as the following offense modifiers: conspiracy, attempt, solicit, solicit juvenile to commit, accessory before the fact, and principal in the second degree.

Statutory interpretation "begin[s] with the assumption 'that the legislature chose, with care, the words it used when it enacted the relevant statute'" and courts consider their primary objective to be ascertaining and giving effect to the legislature's intent, as expressed by the statute's language. If the statute's language is unambiguous, courts consider themselves "bound by the plain meaning of that language." "[U]nless a literal interpretation . . . would result in manifest absurdity," courts give effect to the intent of legislatures, as expressed by the chosen language. The Supreme Court of Virginia uses the phrase "absurd result" "to describe situations in which the law would be internally inconsistent or otherwise incapable of operation." When a statute is subject to multiple interpretations, courts "apply the interpretation that will carry out the legislative intent behind the statute." Therefore, it is my opinion that the phrase "any felony violation" includes the substantive completed offense.

This analysis also guides my opinion as to offenses committed in the roles of principal in the second degree and accessory before the fact. By statute, "[i]n the case of every felony, every principal in the second degree and every accessory before the fact may be indicted, tried, convicted and punished in all respects as if a principal in the first degree," except in limited circumstances. Therefore, it is my opinion that the phrase "any felony violation" includes acting as a principal in the second degree or an accessory before the fact to one who violates any of the enumerated offenses in § 53.1-202.3(A).

With respect to solicitation to commit any of the crimes listed in § 53.1-202.3(A), the legislature explicitly included solicitation to commit murder among the disqualifying offenses in § 53.1-202.3(A)(2). Solicitation is not referenced in any of the other subparagraphs. When the General Assembly includes specific language in one Code provision but omits that language from another, we must presume that the exclusion of the language was intentional. Furthermore, interpreting § 53.1-202.3(A) to implicitly include solicitation to commit any of the listed crimes would render superfluous the explicit reference in § 53.1-202.3(A)(2) to solicitation to commit murder. It is a settled principle of statutory construction that no part of a statute "will be considered meaningless unless absolutely necessary." It is my opinion that an offense for solicitation to commit murder is not eligible for sentence credits, however, other solicitations may be eligible if the solicitation is of an enumerated offense in § 53.1-202.3(A).

Regarding attempts to commit the disqualifying crimes listed in § 53.1-202.3(A), subparagraph 10 includes any "[c]riminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2." Section 18.2-67.5 defines the disqualifying crimes, which include attempted rape, attempted forcible sodomy, attempted object sexual penetration, and attempted aggravated sexual battery. The General Assembly's incorporation of some, but not all, attempts as disqualifying crimes signifies that the legislature's exclusion of any language that would reference attempts to commit other crimes was intentional. Therefore, it is my opinion that the phrase "any felony violation" of the listed criminal statutes includes attempts to commit the felony sexual assaults prohibited by § 18.2-67.5 but does not include attempts to commit the other listed offenses.

2. Aggravated Murder and Offense Modifiers

Second, you ask if the modifiers addressed in the first question are excluded from the enhanced earned sentence credits, and, if so, whether the legislation includes language excluding the modifiers for aggravated murder, since § 53.1-202.3 does not specifically list § 18.2-31.

Section 18.2-31(A) lists the offenses constituting aggravated murder, which is punished as a Class 1 felony. The amended version of § 53.1-202.3 provides for a maximum of 4.5 days of earned sentence credits, per 30 days served, for a Class 1 felony. Thus, the completed act of aggravated murder is excluded from the enhanced earned sentence credits under § 53.1-202.3(A)(1). Solicitation to commit aggravated murder is likewise excluded from the enhanced earned sentence credits.

As discussed earlier, felony principals in the second degree and accessories before the fact are generally punished as if they are principals in the first degree. However, these modifiers are excluded from the enhanced earned sentence credits because aggravated murder is excluded. Accessories before the fact or principals in the second degree to those aggravated murder provisions "shall be indicted, tried, convicted and punished as though the offense were murder in the first degree." First degree murder is excluded from the enhanced sentence credits. Therefore, even the aggravated murder provisions excluded from the general rule for principals in the second degree and accessories before the fact, are omitted from the new enhanced sentence credits, by way of the exclusion for first degree murder offenses.

This leaves the conspiracy and attempt modifiers for resolution. There is no direct reference to conspiracy to commit aggravated murder or attempted aggravated murder in § 53.1-202.3(A)(1) or -(A)(2), and these aggravated murder modifiers do not fit within any offenses listed in those subsections. Therefore, an offender convicted of conspiracy to commit aggravated murder or attempted aggravated murder would be permitted to receive enhanced earned sentence credits.

3. Felony Attempted Rape, Forcible Sodomy, Object Sexual Penetration, and Aggravated Sexual Battery

Third, you ask whether § 53.1-202.3(A)(10) includes § 18.2-67.5 which governs felony attempted rape, forcible sodomy, object sexual penetration, and aggravated sexual battery. Under § 18.2-67.5, each of these offenses are felonies. Section 53.1-202.3(A)(10) excludes "[c]riminal sexual assault punishable as a felony under Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2." Therefore, convictions for the offenses outlined in § 18.2-67.5 are excluded from the enhanced earned sentence credits.

4. Section 53.1-202.3(A)(17)

Your final question is whether the exclusion from earning certain credits in § 53.1-202.3(A)(17)(e) applies if an offender's first violation of § 18.2-51 or § 18.2-51.1 was a malicious felonious assault. Similarly, you ask whether a violation of § 18.2-92 would fall under the exclusion from credits in § 53.1-202.3(A)(17)(g) if the offender was previously convicted of violating § 18.2-90.

Section 53.1-202.3(A)(17) allows offenders to earn a maximum of 4.5 sentence credits for each 30 days served on a sentence for a second or subsequent offense violation, but only applies to the offenses listed in that subdivision. Thus, the exclusion in § 53.1-202.3(A)(17)(e) would not apply when an offender's first violation of § 18.2-51 or § 18.2-51.1 was committed maliciously, as malicious violations are not included in § 53.1-202.3(A)(17)(e). Likewise, § 53.1-202.3(A)(17)(g) would not apply where an offender violated § 18.2-92, but only previously violated § 18.2-90, since § 18.2-90 is not an offense listed in § 53.1-202.3(A)(17)(g). Therefore, in the two scenarios that you ask about, the offender would be eligible for the enhanced earned sentence credits.

Conclusion

For the foregoing reasons, it is my opinion that the language "any felony violation," in the context of § 53.1-202.3(A), as amended, includes the completed act prohibited by the enumerated criminal statutes. It also includes acting as a principal in the second degree or accessory before the fact to the primary perpetrator of any listed offense. However, the statute only includes solicitation to commit murder and does not implicitly include solicitation to commit other listed crimes. The statute also includes attempts to commit certain felony sexual assaults listed in § 18.2-67.5, but does not implicitly include attempts to commit the other listed crimes.

The offense of aggravated murder and the aggravated murder modifiers of solicitation, principal in the second degree, and accessory before the fact, are excluded from the enhanced earned sentence credits, but conspiracy to commit and attempted aggravated murder are eligible for the enhanced earned sentence credits. As amended, § 53.1-202.3(A)(10) includes felony violations of § 18.2-67.5. Finally, as amended, the exclusion in § 53.1-202.3(A)(17)(e) does not apply to a second or subsequent violation of §§ 18.2-51 or 18.2-51.1 when the first violation was committed maliciously; and § 53.1-202.3(A)(17)(g) would not apply when an offender violates § 18.2-92, but only previously violated § 18.2-90.

With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General