Charles Dean Lawson v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
CHARLES DEAN LAWSON
OPINION BY
v. Record No. 0998-01-2 JUDGE JAMES W. BENTON, JR.
APRIL 9, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
William R. Shelton, Judge
Todd M. Ritter (Daniels & Morgan, on brief),
for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
The trial judge convicted Charles Dean Lawson of the felony
of willfully failing to appear in the circuit court in violation
of Code § 19.2-128(B). Lawson contends the statute does not
apply to his failure to appear for a "show cause" hearing
concerning a probation violation. We agree and reverse the
conviction.
I.
A grand jury indicted Lawson for "feloniously fail[ing] to
appear before the circuit court . . . , as required after
notice, on a felony charge," in violation of Code § 19.2-128.
At trial, the prosecutor informed the judge that on December 16,
1999, Lawson "came to court, but then left before his case was
called that day." The prosecutor also informed the judge that
Lawson's attorney contests whether Code § 19.2-120 "covers this
particular type of event." The prosecutor presented as his only
evidence a bond signed by Lawson as a condition of his bail.
The prosecutor asserted that Lawson had been admitted to bail
pursuant to Code § 19.2-120 and argued that Code § 19.2-128
should be interpreted to include persons granted bail under the
provisions of Code § 19.2-120.
Lawson's attorney responded "that there is no contest on
the facts that [Lawson] had in fact appeared on that day and
then left before his case was called." Lawson's attorney argued
that Lawson's failure to appear was not punishable under the
statute, but, rather, "may be punishable under the contempt
power of the Court." He asserted that Lawson's "court date was
for a show cause hearing" concerning a prior felony conviction
and that "you have to draw a distinction between [Lawson] and
someone who would come in having been charged with a felony
offense for which they are awaiting trial." He argued that
Lawson's case did not fit within either category of persons
described in Code § 19.2-128(B).
The trial judge ruled that "when a person has been served
with a show cause notice on a felony conviction, . . . [and]
fails to appear, it's a violation of the statute." He then
convicted Lawson of violating Code § 19.2-128(B). This appeal
followed.
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II.
Code § 19.2-128(B) provides as follows:
Any person (i) charged with a felony offense
or (ii) convicted of a felony offense and
execution of sentence is suspended pursuant
to § 19.2-319 who willfully fails to appear
before any court as required shall be guilty
of a Class 6 felony.
Lawson contends that his conduct does not fall within the
statute's proscription. The Commonwealth does not contend that
subpart (ii) is implicated by the circumstances of this case.
Rather, it contends that Lawson's "conduct violated [subpart] (i)
of the statute." Thus, the Commonwealth argues that, because the
circuit court retained continuing jurisdiction over Lawson's case
to address matters involving revocation of probation and
suspended sentences, Lawson's underlying charge was not a final
"conviction" and that Lawson was still "charged" for purposes of
the statute.
In reviewing this statute, we are guided by familiar
principles. "'It is the duty of the courts to give effect, if
possible, to every word of the written law.'" Burnette v.
Commonwealth, 194 Va. 785, 788, 75 S.E.2d 482, 484-85 (1953)
(citation omitted).
Our duty is "to construe the law as it is
written." We assume that "the legislature
chose, with care, the words it used when it
enacted the relevant statute, and we are
bound by those words . . . ." "To depart
from the meaning expressed by the words is
to alter the statute, to legislate and not
to interpret."
* * * * * * *
"When the General Assembly uses two
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different terms in the same act, it is
presumed to mean two different things."
Greenberg v. Commonwealth, 255 Va. 594, 600-01, 499 S.E.2d 266,
269-70 (1998) (citations omitted). We, therefore, conclude that
when the General Assembly used "charged" in subpart (i) of Code
§ 19.2-128 and "convicted" in subpart (ii), the General Assembly
intended two different meanings. In addition, we construe the
words in the statute "according to their ordinary meaning."
Patterson v. CSX Transportation, 245 Va. 483, 487-88, 429 S.E.2d
215, 218 (1993).
The evidence did not prove that, when Lawson failed to
appear in court on December 16, 1999, his status was "charged
with a felony." The record indicates that Lawson failed to
appear at a "show cause" hearing. The parties further agreed
that the hearing was a "revocation proceeding" for an underlying
felony offense. No evidence establishes, however, that Lawson
was "charged with a felony offense," as contemplated by Code
§ 19.2-128(B)(i). Indeed, the Commonwealth represents that "a
final sentencing order had been entered prior to his failure to
appear."
Although the Commonwealth argues that the General Assembly
intended a broad construction of the statute, we must be guided
by the principles "that penal statutes must be 'strictly
construed against the State' and that such statutes 'cannot be
extended by implication or construction, or be made to embrace
cases which are not within their letter and spirit.'"
Commonwealth v. Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766
(2001). "[B]efore the accused can be punished, 'his case must be
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plainly and unmistakably within the statute.'" Waldrop v.
Commonwealth, 255 Va. 210, 215, 495 S.E.2d 822, 825 (1998).
Accepting that the proceeding Lawson failed to attend was
for the purpose of considering whether a "revocation" of Lawson's
probation or suspended sentence was warranted, we decline to
hold, as suggested by the Commonwealth, that the word "charged,"
which is found in Code § 19.2-128(B)(i), should be read to mean
charged or convicted and that the circuit court's limited
jurisdiction over the revocation proceedings established that
Lawson's conviction was not final. Although an alleged violation
of the conditions of either probation or a suspended sentence is
a serious matter, such an allegation does not render a person
"charged with a felony offense." Proof of Lawson's failure to
appear at a hearing to show cause whether his probation or a
suspended sentence should be revoked does not plainly fall within
the proscription of Code § 19.2-128(B).
We hold, therefore, that the evidence in the record did not
prove that when Lawson failed to appear in the circuit court on
December 19, 1999, he was "charged with a felony offense," as
required for a conviction under Code § 19.2-128(B).
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Accordingly, we reverse the conviction and dismiss the
indictment.
Reversed and dismissed.
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