Jordan v. Commonwealth

PRESENT: Goodwyn, Mims, McClanahan, Powell, Kelsey, and McCullough, JJ., and Lacy, S.J.
BRIAN WENDALL JORDAN
OPINION BY
v. Record No. 161527 JUSTICE STEPHEN R. McCULLOUGH
February 22, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
H. Lee Harrell, Judge
Brian Wendall Jordan, an inmate, filed a petition to change his name. The trial court
denied his petition, and Jordan asks us to reverse this decision. For the reasons stated below, we
affirm the trial court’s decision.
BACKGROUND
Brian Wendall Jordan was sentenced to a lengthy term of incarceration after he was
convicted of several serious offenses: malicious wounding, robbery, first degree murder,
aggravated malicious wounding, and burglary. A stipulation of facts indicates that, in one
instance, he forced his way into the home of an elderly woman, choked her, and severely beat her
while demanding her money. He also broke into the home of an elderly couple and badly beat
them, again to obtain money. One of his victims died from the heavy blows Jordan inflicted
upon him.
After undergoing a religious conversion, he filed a petition in the circuit court to change
his name to Abdul-Wakeel Mutawakkil Jordan. He added, however, that “he would not be
hindered from the free exercise of his religion if not allowed to change his name.” The court
found good cause to accept the petition, Code § 8.01-217(D), and ordered the Commonwealth to
respond. The Commonwealth’s Attorneys for both Grayson County and the City of Chesapeake
opposed the petition. ∗ The Commonwealth’s Attorney for the City of Chesapeake opposed the
petition without elaboration. The Commonwealth’s Attorney for Grayson County argued that
granting the name change was likely for a fraudulent purpose, would frustrate a legitimate
law-enforcement purpose, and would infringe on the rights of others.
At a hearing conducted by using a live two-way video connection, the petitioner testified
and offered written exhibits. Following the hearing, the court found the name change was not
sought for a fraudulent purpose, but observed that “[t]he prism through which the court views the
request of Mr. Jordan is necessarily different because of his extraordinarily heinous convictions.”
The court reasoned as follows.
The punishment of crime is an elementary purpose of law-
enforcement. There are four commonly accepted goals of criminal
punishment: retribution, deterrence, rehabilitation and
incapacitation. Changing the name of Mr. Jordan frustrates
retribution, deterrence and incapacitation. He was convicted of
these heinous crimes under the name Brian Wend[a]ll Jordan and
his sentence, as rendered by the Circuit Court of the City of
Norfolk, should be served and concluded under that name.
Included in this consideration are the victims of his crime, who
have the right and the security in the knowledge that he is serving
his apportioned sentence under that name. Someone so dangerous
should have his identity fixed, certain and intractable not only with
the Department of Corrections but with all of society. There
should never be even a hint of confusion as to who this person is.
Mr. Jordan pointed out in his materials and argument that the
Department is equipped to handle name changes. That the
Department can handle an inmate’s name change does not of itself
satisfy [Code] § 8.01-217(D). A function of his punishment is that
he bear the convictions in the name they were ordered by the court,
and that his victims and society have that assurance.
∗ The Commonwealth’s Attorney for the City of Chesapeake submitted a response on
behalf of the City of Norfolk because the Norfolk Commonwealth’s Attorney was recused during
the initial prosecution.
2
The court found that the petitioner’s application “frustrates a legitimate law-enforcement
purpose” and thus the provisions of Code § 8.01-217(D) were not satisfied.
Jordan filed this pro se appeal and we granted it. In accord with the highest traditions of
our profession, counsel volunteered to represent him on a pro bono basis.
ANALYSIS
We review a circuit court’s denial of an application for a name change under an abuse of
discretion standard. In re Brown, 289 Va. 343, 347, 770 S.E.2d 494, 496 (2015). The statute
treats probationers, persons required to register on the sex offender registry, and inmates
differently from other petitioners. For probationers, persons required to register on the sex
offender registry, and inmates,
[t]he court . . . may order a change of name if, after receiving and
considering evidence concerning the circumstances regarding the
requested change of name, the court determines that the change of
name (i) would not frustrate a legitimate law-enforcement purpose,
(ii) is not sought for a fraudulent purpose, and (iii) would not
otherwise infringe upon the rights of others. Such order shall
contain written findings stating the court’s basis for granting the
order.
Code § 8.01-217(D) (emphasis added). For all other applicants,
the court, shall, unless the evidence shows that the change of name
is sought for a fraudulent purpose or would otherwise infringe
upon the rights of others or, in a case involving a minor, that the
change of name is not in the best interest of the minor, order a
change of name.
Code § 8.01-217(C) (emphasis added).
Under subsection (C) of this statute, the court “shall” order a name change unless certain
circumstances are present. Code § 8.01-217(C). For inmates, probationers, and persons required
to register as sex offenders, the statutory language affords far more discretion to the trial court.
Code § 8.01-217(D). It provides that a court “may” grant the petition. Id. “[W]e must assume
3
that the General Assembly chose, with care, the words it used in enacting the statute, and we are
bound by those words when we apply the statute.” Halifax Corp. v. First Union Nat’l Bank, 262
Va. 91, 100, 546 S.E.2d 696, 702 (2001). When the General Assembly employs a specific word
in one section of a statute, and chooses a different term in another section of the statute, we must
presume the difference in language was intentional. See, e.g., RGR, LLC v. Settle, 288 Va. 260,
295-96, 764 S.E.2d 8, 29 (2014) (“When the General Assembly uses two different terms in the
same act, those terms are presumed to have distinct and different meanings.”) (quoting Industrial
Dev. Auth. of the City of Roanoke v. Board of Supervisors, 263 Va. 349, 353, 559 S.E.2d 621,
623 (2002)). See also Brown v. Commonwealth, 284 Va. 538, 545, 733 S.E.2d 638, 641 (2012)
(“When the General Assembly includes specific language in one statute, but omits that language
from another statute, courts must presume that the exclusion of the language was intentional
because under these circumstances, it is evident that the General Assembly knows how to
include such language in a statute to achieve an intended objective; thus the omission of such
language in another statute represents an unambiguous manifestation of a contrary intention.”)
(alterations and internal quotation marks omitted) (quoting Halifax Corp. v. Wachovia Bank, 268
Va. 641, 654, 604 S.E.2d 403, 408 (2004)).
For inmates, probationers, and persons required to register as sex offenders, a court must
find as a threshold matter that the name change would not frustrate a legitimate law-enforcement
purpose, is not sought for a fraudulent purpose, and would not otherwise infringe on the rights of
others. Code § 8.01-217(D). If any one of those circumstances is present, the court must deny
the petition. That, however, is only the beginning of the inquiry. Even when those
circumstances are absent, the court is not required to grant the petition - it retains broad
discretion to grant or to deny the petition.
4
The parties understandably focus our attention on the question of whether the petition
was properly denied on the basis that it would frustrate a legitimate law-enforcement purpose.
The petitioner offers a narrow definition and contends that his name change would not frustrate a
law-enforcement purpose. For its part, the Commonwealth tenders a broader definition and
submits that the petitioner’s name change was properly denied under such a definition.
We need not define the term “legitimate law-enforcement purpose” under Code §
8.01-217(D) to resolve this case. Although the trial court cited this provision in its ruling, its
reasoning is broader than the confines of that provision. We cannot say that the basis articulated
by the trial court for denying the petition falls outside the scope of its broad discretion. The
court could conclude that a person who would commit crimes of that gravity and brutality must
retain his given name, for the peace of mind of the victims and the victims’ families and to avoid
any possible future confusion about his identity. Although the petitioner faces a lengthy term of
incarceration, and therefore will not soon return to the communities where he perpetrated his
crimes, he is eligible for possible release upon reaching the age of sixty-five. See Code §
53.1-40.01. We, therefore, find no abuse of discretion under these circumstances.
We also note, as we observed at the outset of this opinion, that the petitioner expressly
stated that “he would not be hindered from the free exercise of his religion if not allowed to
change his name.” This circumstance also contributes to our conclusion that the trial court
committed no abuse of discretion.
CONCLUSION
We will affirm the judgment of the trial court.
Affirmed.
5