Joseph Michael Bista v. Commonwealth of Virginia ( 2015 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Beales and Senior Judge Frank
UNPUBLISHED
Argued by teleconference
JOSEPH MICHAEL BISTA
MEMORANDUM OPINION* BY
v. Record No. 0432-15-1 JUDGE ROBERT P. FRANK
DECEMBER 15, 2015
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Michael E. McGinty, Judge
J. Terry Osborne for appellant.
Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Joseph Michael Bista, appellant, was convicted in a bench trial of (a) driving under the
influence, third offense, in violation of Code § 18.2-266, (b) driving while his license was revoked
and while in violation of Code § 18.2-266 after having been previously convicted of violating Code
§ 18.2-266 in violation of Code § 46.2-391(D)(2)(a)(ii), and (c) refusing to have a sample of his
breath or blood taken for testing, subsequent offense, in violation of Code § 18.2-268.3. On appeal,
appellant maintains that the Circuit Court for the City of Williamsburg had no venue to try his cases.
For the reasons stated, we affirm his convictions.
BACKGROUND
The facts are not in controversy. On May 13, 2014, appellant was at a convenience store
located in York County where he was observed by a City of Williamsburg police officer. The
officer estimated that the store was “six-tenths of a mile outside the [Williamsburg] city line.”
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Ultimately, appellant was arrested at the convenience store in York County for driving while
intoxicated and driving with a revoked license. He was transported to the Virginia Peninsula
Regional Jail where he refused to submit to a breath test. The trial court found that the City of
Williamsburg was the proper venue for the charges and convicted appellant of the charges.
This appeal followed.
ANALYSIS
To resolve proper venue in this case, we must interpret Code §§ 19.2-249 and 19.2-250. We
first note that generally, venue lies where the offense took place. Code § 19.2-244.1 However,
Code §§ 19.2-249 and 19.2-250 provide exceptions by extending venue in certain circumstances.
An offense committed on the boundary of two counties, or
on the boundary of two cities, or on the boundary of a county and
city, or within 300 yards thereof, may be alleged to have been
committed, and may be prosecuted and punished, in either county,
in either city, or the county or city, and any sheriff, deputy sheriff,
or other police officer shall have jurisdiction to make arrests and
preserve the peace for a like distance on either side of the boundary
line between such counties, such cities, or such county and city.
Code § 19.2-249.
A. Notwithstanding any other provision of this article and
except as provided in subsection B hereof, the jurisdiction of the
corporate authorities of each town or city, in criminal cases
involving offenses against the Commonwealth, shall extend within
the Commonwealth one mile beyond the corporate limits of such
town or city; except that such jurisdiction of the corporate
authorities of towns situated in counties having a density of
population in excess of 300 inhabitants per square mile, or in
counties adjacent to cities having a population of 170,000 or more,
shall extend for 300 yards beyond the corporate limits of such
town or, in the case of the criminal jurisdiction of an adjacent
county, for 300 yards within such town.
B. Notwithstanding any other provision of this article, the
jurisdiction of the authorities of Chesterfield County and Henrico
1
Code § 19.2-244(A) provides, “Except as otherwise provided by law, the prosecution of
a criminal case shall be had in the county or city in which the offense was committed.”
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County, in criminal cases involving offenses against the
Commonwealth, shall extend one mile beyond the limits of such
county into the City of Richmond.
Code § 19.2-250.
“Under well-established principles, an issue of statutory interpretation is a pure question
of law which we review de novo.” Conyers v. Martial Arts World, 273 Va. 96, 104, 639 S.E.2d
174, 178 (2007).
“Principles of statutory construction mandate that we ‘give effect to the legislative
intent.’” Newton v. Commonwealth, 21 Va. App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting
Scott v. Commonwealth, 14 Va. App. 294, 296, 416 S.E.2d 47, 48 (1992)). “[T]he general rule
of statutory construction is to infer the legislature’s intent from the plain meaning of the
language used.” Hubbard v. Henrico Ltd. P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998).
“And, when multiple ‘statutes concern[] the same subject,’ we construe them together ‘to avoid
conflict between them and to permit each of them to have full operation according to their
legislative purpose.’” Kirby v. Commonwealth, 63 Va. App. 665, 670, 762 S.E.2d 414, 416
(2014) (quoting Eastlack v. Commonwealth, 282 Va. 120, 125-26, 710 S.E.2d 723, 726 (2011)).
“If the statute imposes a disability for the purposes of punishment - that is, to reprimand
the wrongdoer, to deter others, etc., it has been considered penal.” Kitze v. Commonwealth, 23
Va. App. 213, 216, 475 S.E.2d. 830, 832 (1996) (quoting Trop v. Dulles, 356 U.S. 86, 96
(1958)). Code §§ 19.2-249 and 19.2-250 specify the jurisdiction involving criminal cases and
are not penal in nature, thus, the cardinal principle of law that penal statutes are strictly construed
against the Commonwealth is not applicable in this case. See Kirby, 63 Va. App. at 672 n.6, 762
S.E.2d at 417 n.6 (finding that Code § 19.2-250 was not a penal statute but simply prescribed the
jurisdiction involving criminal cases).
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Appellant argues Code § 19.2-249 controls, thus, the offense must be committed no more
than 300 yards from the boundary line of the City of Williamsburg for venue to lie in the City of
Williamsburg. The Commonwealth argues Code § 19.2-250 controls, thus, if the offense was
committed within one mile of the City of Williamsburg, venue was proper in the City of
Williamsburg.
Code § 19.2-249 addresses venue when an offense is committed on the boundary of two
counties, two cities, a city and a county, or within 300 yards of that boundary. By its express
terms, Code § 19.2-249 focuses on the close proximity to the two political subdivisions, i.e., on
the boundary or within 300 yards of that boundary. The statute then provides concurrent
jurisdiction in the county or city for the arrest, prosecution, and punishment. Thus, the statute
extends the boundary of each political subdivision 300 yards on either side of the boundary.
We should note that the offense did not occur within 300 yards of the City of
Williamsburg nor York County boundaries. Under these facts, Code § 19.2-249 does not apply
to establish venue.
Since Code § 19.2-249 is inapplicable to the facts of this case, we must address Code
§ 19.2-250(A). That section extends municipal boundaries beyond the city/town limits for one
mile. It does not extend the boundary adjoining political subdivisions into the city/town. The
purpose of Code § 19.2-250 is “to prevent the territory contiguous to a city from becoming a
refuge for criminals, and to confer on the corporation courts of the cities the power to enforce the
police regulations and law of the area involved.” Murray v. Roanoke, 192 Va. 321, 326-27, 64
S.E.2d 804, 808 (1951).
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We hold that Code § 19.2-250(A) clearly allows venue in the City of Williamsburg. It is
undisputed the offense occurred within one mile of the City of Williamsburg boundary.2
Appellant contends Code § 19.2-249 confers venue and Code § 19.2-250 does not
address venue, thus limiting the extra-territorial distance to 300 yards. However, case law belies
appellant’s contention.
In Squire v. Commonwealth, 214 Va. 260, 199 S.E.2d 534 (1973), Squire was tried in the
City of Charlottesville for an offense occurring in Albemarle County and within one mile of the
corporate limits of the City of Charlottesville. Id. at 260, 199 S.E.2d at 535. Citing Code
§ 19.2-250(A) (then Code § 15.1-141) the Supreme Court concluded that the City of
Charlottesville was the proper venue. Squire, 214 Va. at 263, 199 S.E.2d at 537.
Clearly, the jurisdiction mentioned in both statutes is territorial jurisdiction.
Essentially, Code § 19.2-250(A) makes one mile the operative distance, not the 300 yards
stated in Code § 19.2-249. We cannot ignore the unambiguous plain and obvious meaning of the
words chosen by the legislature. See Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87
(1985) (finding that “[l]anguage is ambiguous if it admits of being understood in more than one
way or refers to two or more things simultaneously”). Clearly the legislature intended for Code
§ 19.2-250(A) to control venue under the facts of this case.
On appeal, appellant further argues there was no evidence that the City of Williamsburg
was a corporation or that the City of Williamsburg Police Department, the arresting officer, or
the Circuit Court of the City of Williamsburg were corporate authorities, thus, making Code
2
We note that if the prerequisites of both Code §§ 19.2-249 and 19.2-250 are met, venue
could lie under either code provision. See Boatwright v. Commonwealth, 50 Va. App. 169, 172
n.5, 647 S.E.2d 515, 517 n.5 (2007). For example, if a defendant was charged with an offense
against the Commonwealth and it occurred within 300 yards of the boundary between two
political subdivisions, venue would lie in either political subdivision.
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§ 19.2-250 inoperative. Appellant failed to make those arguments below, and Rule 5A:18 bars
consideration of them on appeal.
In his motion to strike and closing argument, appellant argued Code § 19.2-249 applied,
thus, requiring venue to be in York County. At no time did appellant argue the elements of Code
§ 19.2-250(A) had not been proven nor that the Commonwealth did not prove the City of
Williamsburg had no corporate authority to arrest outside the City of Williamsburg’s corporate
limits. Appellant also does not argue that the good cause or ends of justice exceptions to
Rule 5A:18 apply, and we will not consider, sua sponte, a “miscarriage of justice” argument
under Rule 5A:18. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448
(2003) (en banc).
Appellant further maintains that the refusal charge should also have been tried in York
County, but concedes a refusal charge must be prosecuted where the driving under the influence
charge is tried. See Code § 18.2-268.4 (venue for the trial for a refusal charge lies in the court in
which the driving under the influence charge is tried). Since we conclude the City of
Williamsburg was a proper venue for the driving under the influence charge, it was also a proper
venue for the refusal charge.
Based upon the foregoing, we affirm appellant’s convictions.
Affirmed.
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