Mason v. Commonwealth

Opinion

COLEMAN, J.

Michael Wayne Mason was convicted by a jury of two counts of distributing cocaine in violation of Code § 18.2-248. Mason received an enhanced punishment for the second conviction pursuant to Code § 18.2-248(C). On appeal, Mason argues that the court erred by applying the enhanced punishment provision to the second offense because he had not been previously convicted when he committed or was tried for the second offense. Mason’s argument has no merit. Accordingly, we affirm the conviction.

In a single trial, Mason was found guilty by a jury of having distributed cocaine on June 6 and June 8, 1991. The trial judge instructed the jury that, if they found Mason guilty of both the June 6 and June 8 offenses, they could impose the enhanced punishment as provided by Code § 18.2-248(C) for a second drug distribution conviction. The jury found Mason guilty of both counts and recommended a ten-year sentence for the June 6 offense and an enhanced penalty of twenty years for the June 8 offense.

Code § 18.2-248(C) provides that “[ujpon a second or subsequent conviction” of manufacturing, selling, giving or distributing a Schedule I or II controlled substance, the court or jury may, in its discretion, impose upon the defendant an enhanced punishment of up to life imprisonment, rather than the forty-year maximum for a first offender. Contrary to Mason’s contention, the statute contains no provision that, in order for the enhanced penalty provision to obtain, the defendant must have been convicted of the first offense before committing the second offense. We will not read such a requirement into the statute. Concededly, because the statute is penal in nature, it must be strictly construed, and any ambiguity or reasonable doubt as to its meaning must be resolved in Mason’s favor. Wesley v. Commonwealth, 190 Va. 268, 275-76, 56 S.E.2d 362, 365 (1949); Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979). “This does not mean, however, that [Mason] is entitled to a favorable result based upon an unreasonably restrictive interpretation of the statute.” Ansell, 219 Va. at 761, 250 S.E.2d at 761.

Mason would have us interpret the provisions of Code § 18.2-248(C) to provide that an enhanced punishment could be imposed only for offenses committed after an individual had already been convicted of a drug offense. In support of this position, Mason argues that the purpose of the statute is to deter recidivism, and only when an individual has been previously convicted will the risk of receiving enhanced punishment for a second offense deter the repeated criminal conduct. However, the purpose of recidivist statutes is also to protect society against habitual criminals and to impose further punishment upon them for habitual criminal conduct. Wesley, 190 Va. at 276, 56 S.E.2d at 365; Ansell, 219 Va. at 761, 250 S.E.2d at 761. While one purpose of some recidivist statutes may be to give convicted felons an incentive to reform, in which case the prior conviction must precede the commission of the second offense, see Ansell, 219Va. at 761, 250 S.E.2d at 761-62 (citing 24 A.L.R.2d 1247, 1249 (1952)), the purpose of other recidivist statutes is to deter criminal conduct. In those instances,

there is no reason not to apply the increased penalties to any subsequent offense with or without an intervening conviction “since presumably a greater penalty would be required to deter a repetition of criminal activity by an offender who has not been convicted previously than to deter repetition by the offender who has been subjected to the corrective impact of conviction and sentence.”

Ansell, 219 Va. at 762-63, 250 S.E.2d at 762 (quoting Gonzalez v. United States, 224 F.2d 431, 433 (1st Cir. 1955)). Consequently, an enhanced punishment may be applied where there are multiple convictions for separate offenses in a simultaneous prosecution. Morris v. Commonwealth, 228 Va. 206, 210-12, 321 S.E.2d 633, 635-36 (1984); Flythe v. Commonwealth, 221 Va. 832, 833-35, 275 S.E.2d 582, 583-84 (1981); Ansell, 219 Va. at 763, 250 S.E.2d at 763.

The purpose of the enhanced punishment provision of Code § 18.2-248(C) is to halt and punish those who repeatedly sell drugs. To construe the statute as Mason suggests would enable an offender to engage in a spree of drug sales over an extended period of time prior to his apprehension and to receive the status of a first offender as to each violation. See Ansell, 219 Va. at 763, 250 S.E.2d at 763. Such an interpretation would be contrary to the clear legislative intent and unreasonably restrictive. The trial court did not err by instructing the jury that, in the event Mason was convicted of both the June 6 and June 8 distribution offenses, it could impose an enhanced punishment for the June 8 offense pursuant to Code § 18.2-248(C).

Affirmed.

Baker, J., concurred.