Tracy Marice Penn v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia
TRACY MARICE PENN
OPINION BY
v. Record No. 0321-99-3 JUDGE ROSEMARIE ANNUNZIATA
MAY 2, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Vikram Kapil, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General;
Jeffrey S. Shapiro, Assistant Attorney
General, on brief), for appellee.
Tracy Marice Penn appeals his conviction of felonious
possession of a controlled substance while an inmate of a state
correctional facility in violation of Code § 53.1-203(6). Penn
argues (1) that the circuit court erred in deeming him to be a
"prisoner" within the meaning of the statute, and (2) that the
court erroneously founded its jurisdiction to try his case on
Code § 53.1-205. We disagree and affirm.
BACKGROUND
On January 10, 1998, Penn was arrested for public
drunkenness. He was charged under Code § 18.2-388 and placed in
an "isolation cell" at the Martinsville City Jail, a local
detention facility. While Penn was being held in the cell,
Sergeant John Robertson observed Penn attempting to hide a small
cellophane bag in the front of his pants. Robertson then
searched Penn and found the bag secreted in Penn's groin. The
bag contained a green leafy substance, later determined to be
marijuana. Penn was charged under Code § 53.1-203(6) with
possession of marijuana by an inmate. Sgt. Robertson testified
that persons held on charges of public intoxication usually are
kept in custody until they become sober, at which time they are
released upon posting a personal recognizance bond. Bond was
set the morning following Penn's arrest for public drunkenness,
and, upon posting bond, Penn was released pending trial on that
charge.
At Penn's bench trial for felony possession of marijuana,
Penn argued that the charge should be dismissed on two grounds:
1) the evidence failed to establish that Penn was a "prisoner"
within the meaning of Code § 53.1-203(6); and 2) the court
lacked jurisdiction to try the matter under Code § 53.1-205,
because that statute limits the court's jurisdiction to persons
confined in "state correctional" facilities, and the
Martinsville City Jail did not qualify as such.
The court rejected these arguments and proceeded to trial
of the case. At the conclusion of the evidentiary phase of the
trial, Penn moved to strike the Commonwealth's evidence on the
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ground that the evidence failed to prove he was a "prisoner"
within the meaning of the statute. In denying the motion, the
court declined to read Code § 53.1-203(6) in the narrow fashion
urged by Penn, and found that Penn was a "prisoner" within the
intent of the statute. Penn was found guilty as charged, and he
was sentenced to thirty days in jail, suspended on condition of
six months supervised probation. Penn noted his appeal to this
Court.
MEANING OF "PRISONER" IN CODE § 53.1-203(6)
Penn argues that his detention in the Martinsville City
Jail was not an "imprisonment" within the intent of Code
§ 53.1-203(6), but was, rather, merely a "detention" until he
was sober enough to be released. On that ground, he contends he
should have been convicted only of the misdemeanor offense of
unlawful possession of marijuana in violation of Code
§ 18.2-250.1(A). 1 This contention is without merit.
Code § 53.1-203 states, in pertinent part:
It shall be unlawful for a prisoner in a
state, local or community correctional
facility . . . to . . . Procure, sell,
secrete or have in his possession a
controlled substance classified in Schedule
III of the Drug Control Act . . . or
marijuana.
1
The statute reads: "It is unlawful for any person
knowingly or intentionally to possess marijuana . . . . Any
person who violates this section shall be guilty of a
misdemeanor, and shall be confined in jail not more than thirty
days . . . ."
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The issue on appeal presents a question of statutory
interpretation, which "is the prerogative of the judiciary."
Sims Wholesale Co., Inc. v. Brown-Forman Corp., 251 Va. 398,
404, 468 S.E.2d 905, 908 (1996). As such, it presents a
question of law, which we review de novo. See Rusty's Welding
Service, Inc. v. Gibson, 29 Va. App. 119, 127, 510 S.E.2d 255,
259 (1999) (en banc). In construing the language of a statute,
we "'"must take the words as written"' . . . and give them their
plain meaning." Krampen v. Commonwealth, 29 Va. App. 163, 167,
510 S.E.2d 276, 278 (1999) (quoting Adkins v. Commonwealth, 27
Va. App. 166, 169, 497 S.E.2d 896, 897 (1998) (quoting Birdsong
Peanut Co. v. Cowling, 8 Va. App. 274, 277, 381 S.E.2d 24, 26
(1989))).
"Prisoner" generally is defined as "[a] person who has been
apprehended by a law-enforcement officer and is in custody,
regardless of whether the person has yet been put in prison."
Black's Law Dictionary 1213 (7th ed. 1999); see Mabe v.
Commonwealth, 14 Va. App. 439, 440-41, 417 S.E.2d 899, 900
(1992) (Code § 53.1-203's reference to "prisoner in a . . .
correctional facility" refers to individual's status as one
lawfully in custody, and appellant who fled custody while on
work release from county jail was "in every sense a prisoner in
a correctional facility"); see also Rollin M. Perkins & Ronald
N. Boyce, Criminal Law 566 (3d ed. 1982) (one is a prisoner
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because he is "in the custody of any person who had lawfully
arrested him"). Code § 53.1-203(6) uses the word "prisoner" in
this general sense, supplying no specific definition for the
term. Because "[i]n construing the language of a statute, the
Court 'must take the words as written' . . . and give them their
plain meaning," Krampen, 29 Va. App. at 167, 510 S.E.2d at 278
(citation omitted), we find that Penn was a prisoner within the
meaning of Code § 53.1-203(6) and that the statute applies in
this case.
Penn's reliance on Mabe is misplaced; indeed, Mabe supports
the result reached here. Mabe concerned an inmate of the
Washington County Jail who was assigned to work outside the jail
at a senior citizens' center. After working at the center for
four or five hours, Mabe escaped and was recaptured two days
later. Mabe argued that his conviction under Code § 53.1-203(1)
was improper, because the statute stated that it was unlawful
for a prisoner to "[e]scape from a correctional facility or from
any person in charge of such prisoner," and he was neither "in"
a correctional facility at the time of his escape, nor in the
charge of a correctional officer, as required under the statute.
We upheld his conviction, holding that the term "in" did not
narrow the ambit of the statute to prisoners physically inside
correctional facilities. See Mabe, 14 Va. App. at 440-41, 417
S.E.2d at 900. The statute "refers to the status of the escapee
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[as a prisoner], not to the circumstances of escape." Id. at
441, 417 S.E.2d at 900.
We also find no merit in Penn's further argument that under
Code § 18.2-388 2 he was merely a detainee for detoxification,
that he was thus free to leave upon becoming sober, and that
therefore he was not imprisoned. Contrary to Penn's argument
that he was placed in a detention cell for the sole purpose of
becoming sober and being subsequently released, the record
reveals that he was arrested on a charge of public drunkenness
and was held in jail pending his posting of a recognizance bond.
Because Penn was arrested under the statute, he cannot claim to
have been free to leave at any time. His argument on this
ground thus fails. In short, Penn was a prisoner within the
meaning of Code § 53.1-203(6), and was subject to prosecution
under that statute.
JURISDICTION OF THE TRIAL COURT
Penn further contends that even if he were a "prisoner"
within the intent of Code § 53.1-203(6), the circuit court
2
The statute reads:
If any person . . . is intoxicated in public
. . . he shall be deemed guilty of a Class 4
misdemeanor. In any area in which there is
a court-approved detoxification center a law
enforcement officer may authorize the
transportation . . . of public inebriates to
such detoxification center in lieu of
arrest; however, no person shall be
involuntarily detained in such center.
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lacked jurisdiction to hear and adjudicate his case because the
explicit terms of Code § 53.1-205 3 grant jurisdiction only over
persons confined in state correctional facilities. Penn argues
that the holding cell in the Martinsville jail is a "local
detention facility," not a "state correctional facility."
Although he concedes that Code § 53.1-203, which prohibits
possession of marijuana by "prisoners," refers to "state, local,
or community correctional facilit[ies]," he argues that if the
legislature intended the jurisdiction conferred in Code
§ 53.1-205 to be coterminous with the prohibitions of Code
§ 53.1-203, the statute must state so expressly. Because it
does not, he argues the circuit court lacked jurisdiction over
his case. We disagree.
Although Penn is correct that Code § 53.1-205 applies only
to prisoners in state correctional facilities, he misconstrues
the statute as conferring jurisdiction. "'Jurisdiction' means
the power of a court to hear and determine a cause, which power
is conferred by a constitution or by statute, or both."
Erickson-Dickson v. Erickson-Dickson, 12 Va. App. 381, 388, 404
S.E.2d 388, 392 (1991) (citation omitted). Although the summary
3
The statute states: "Jurisdiction for trial of prisoners;
nature of proceedings. Subject to the provisions of §§ 53.1-203
and 53.1-204, the jurisdiction, proceedings, trial and judgment
in a criminal proceeding against a person confined in a state
correctional facility shall be as is provided for in other cases
of criminal prosecution."
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title of Code § 53.1-205 is "Jurisdiction for trial of
prisoners," this statute, like its predecessor, former Code
§ 53-295, may be construed as "a venue statute, not limiting the
general criminal jurisdiction conferred upon [the] circuit
courts by" Code §§ 17.1-513 and 19.2-239. Brown v.
Commonwealth, 215 Va. 143, 147, 207 S.E.2d 833, 836 (1974). As
the Supreme Court has observed, the "use of the word
'jurisdiction' in the summary title [of a statute] is not
controlling. The summary title is not part of the body of the
statute, and in the proper context, the word 'jurisdiction' may
be used to mean venue." Id. at 146, 207 S.E.2d at 836 (citing
County School Bd. v. Snead, 198 Va. 100, 106-07, 92 S.E.2d 497,
503 (1956)). Code § 53.1-205 presents such a context. Code
§ 53.1-205 provides that "the jurisdiction, proceedings, trial,
and judgment in a criminal proceeding against a person confined
in a state correctional facility shall be as is provided for in
other cases of criminal prosecution." It does not, in itself,
establish jurisdiction to try the offense or issue in this case,
and by its own terms makes plain that a criminal proceeding
against a person confined in a state correctional facility shall
be governed by the same statutory rules "as [are] provided for
in other cases of criminal prosecution." See id. (holding that
former Code § 53-295 did not expressly limit jurisdiction in
prosecutions of state prisoners).
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Statutes governing "other cases of criminal prosecution"
include those establishing jurisdiction. Code § 17.1-513
establishes the general jurisdiction of the circuit courts. It
provides that "[t]hey shall . . . have original jurisdiction of
all indictments for felonies and of presentments, informations
and indictments for misdemeanors." See Owusu v. Commonwealth,
11 Va. App. 671, 673, 401 S.E.2d 431, 431 (1991) (former Code
§ 17-123 (predecessor to Code § 17.1-513) provided the circuit
courts with jurisdiction over all felonies committed in the
Commonwealth). Code § 19.2-239 provides that "[t]he circuit
courts . . . shall have exclusive original jurisdiction for the
trial of all presentments, indictments and informations for
offenses committed within their respective circuits." See
Curtis v. Commonwealth, 13 Va. App. 622, 629, 414 S.E.2d 421,
425 (1992) (en banc) (Code § 19.2-239 limits circuit courts'
jurisdiction to the trial of all presentments, indictments and
informations for offenses committed within their respective
circuits). It follows that, as held in Brown, 215 Va. at 147,
207 S.E.2d at 836, Code § 53.1-205 establishes the locus or
venue of proceedings, the jurisdiction "to hear and determine
the cause" being granted by Code §§ 17.1-513 and 19.2-239. 4
4
Because Penn limited his claim of error to the issue of
jurisdiction, the question of whether venue was proper was
waived and will not be addressed in this opinion. See Brown,
215 Va. at 147, 207 S.E.2d at 837.
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In this case, the Circuit Court of the City of Martinsville
had original and exclusive jurisdiction to try Penn pursuant to
Code §§ 17.1-513 and 19.2-239. Penn was tried in that court,
the site of the charged offense as well as the location in which
he was detained. In sum, Penn's claim that the court lacked
jurisdiction to try the matter is without merit, and we affirm
his conviction.
Affirmed.
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