Nehemiah NMN Thomas v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia
NEHEMIAH NMN THOMAS, JR.
OPINION BY
v. Record No. 2197-96-3 CHIEF JUDGE NORMAN K. MOON
JULY 15, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Margaret Angela Nelson, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Nehemiah NMN Thomas, Jr. appeals his conviction of driving
after having been declared an habitual offender, second offense.
Thomas asserts that the trial court erred in: (1) finding that
Code § 46.2-357(B)(3) was not vague or overly broad and that it
conformed with legislative intent; (2) finding that Code
§ 46.2-357(B)(3) does not require that a prior conviction of a
first offense precede the charging of a second offense under Code
§ 46.2-357; and (3) permitting the Commonwealth to amend the
indictment.
We hold that Code § 46.2-357(B)(3) is not vague or overly
broad and that its plain meaning clearly provides that any second
or subsequent driving offense in violation of Code § 46.2-357
subjects a defendant to the enhanced punishment provision of Code
§ 46.2-357, whether or not the defendant has been convicted of
the earlier offense at the time the second driving offense
occurs. We further hold that because the Commonwealth's amended
indictment did not change the "nature or character of the offense
charged," the trial court did not err in permitting the
amendment. Accordingly, we affirm.
Thomas was adjudicated an habitual offender on April 5,
1995. On August 30, 1995, he was charged with driving after
having been declared an habitual offender, first offense. He was
ultimately convicted of this charge on March 19, 1996. On
February 11, 1996, Officer Flynn of the Lynchburg Police
Department observed Thomas operating an automobile that matched
the description of a stolen vehicle. Thomas sped away and Flynn
pursued him until Thomas stopped his vehicle in the middle of a
street, exited the vehicle, and fled on foot. Flynn apprehended
Thomas, and after informing him that he had determined that the
vehicle was not stolen, Flynn inquired whether Thomas' license
was "suspended or habitual or anything like that?" Thomas
responded that he knew that his license was "suspended." Thomas
was charged with driving after having been declared an habitual
offender, second offense.
An indictment was returned on May 6, 1996, stating that
Thomas, having been declared an habitual offender, "operated a
motor vehicle . . . having been once or more previously convicted
and sentenced for a like offense." At trial, Thomas argued that
he was improperly charged with a felony under Code
§ 46.2-357(B)(3) because he had not been convicted of driving
- 2 -
after having been declared an habitual offender, first offense,
before he committed the second offense. The Commonwealth
introduced a certified copy of an order which established that
Thomas was convicted on March 19, 1996 of operating a motor
vehicle on August 30, 1995, after having been adjudicated an
habitual offender, first offense. Subsequently, the Commonwealth
was permitted, over Thomas' objection, to amend the indictment to
read that Thomas, having been declared an habitual offender, had
driven on February 11, 1996, "being a second or subsequent
offense, in violation of Virginia Code § 46.2-357." Thomas was
subsequently found guilty of driving after having been declared
an habitual offender, second offense.
Constitutional Challenge
Thomas asserts that the language of Code § 46.2-357(B)(3) is
vague and overly broad and consequently violated his due process
rights under the Fourteenth Amendment of the United States
Constitution, and Article I, Section 8 of the Virginia
Constitution. Code § 46.2-357(B) provides that:
Any person found to be an habitual
offender under this article, who is
thereafter convicted of driving a motor
vehicle . . . shall be punished as follows:
* * * * * * *
2. If such driving, of itself, does
endanger the life, limb, or property of
another, such person shall be guilty of a
felony . . . and no portion of such sentence
shall be suspended except that . . . (ii) in
cases wherein such operation is necessitated
in situations of apparent extreme emergency
which require such operation to save life or
limb, said sentence, or any part thereof may
- 3 -
be suspended.
3. If the offense of driving while a
determination as an habitual offender is in
effect is a second or subsequent such
offense, such person shall be punished as
provided in subdivision 2 of this subsection
. . . .
(Emphasis added.)
"A criminal statute is unconstitutionally vague only if it
fails to define the offense ``with sufficient definiteness that
ordinary people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discriminatory
enforcement.'" Bell v. Commonwealth, 21 Va. App. 693, 700, 467
S.E.2d 289, 292 (1996) (citations omitted). The meaning of Code
§ 46.2-357(B)(3) is clear on its face. A person of ordinary
intelligence would understand that any second or subsequent
driving in violation of Code § 46.2-357 would make him eligible
for the enhanced punishment provision, whether or not he had been
convicted of the earlier offense before the occurrence of the
second driving offense. Cf. Jones v. Commonwealth, 21 Va. App.
435, 440, 464 S.E.2d 558, 560 (1995) (en banc).
Code § 46.2-357(B)(3) establishes that a second "offense" is
punishable as a felony. The statute does not require that for a
first offense to be cognizable as such, it must not only occur
prior to the second offense, but also result in conviction prior
to the occurrence of the second offense.
Thomas' assertion that the trial court's application of Code
§ 46.2-357 is inconsistent with legislative history, is also
- 4 -
unpersuasive. When interpreting a statute, if the language is
clear and unambiguous on its face, we will look no further than
the plain meaning of the statute's words. Brown v. Lukhard, 229
Va. 316, 321, 330 S.E.2d 84, 87 (1985). "[W]hen the language of
an enactment is free from ambiguity, resort to legislative
history and extrinsic facts is not permitted because we take the
words as written to determine their meaning." Id. Because Code
§ 46.2-357(B)(3) is unambiguous, it is both unnecessary and
improper to consider legislative history in determining the
meaning of the statute.
Mitigation Provisions
We also reject Thomas' additional argument that Code
§ 46.2-357 should be interpreted as requiring a conviction for a
first offense prior to the occurrence of the second offense,
because Code § 46.2-357(B)(2)(ii), unlike other habitual offender
statutes, provides for discretionary mitigation of the enhanced
punishment provision.
The fact that Code § 46.2-357(B)(2)(ii) contemplates the
possibility that an habitual offender might find himself in an
emergency situation requiring that he drive, has no effect on the
interpretation of Code § 46.2-357(B)(3). Code
§ 46.2-357(B)(2)(ii) merely provides for mitigation in punishment
where an emergency necessitates driving, and as such, it does not
alter the clear and unambiguous language of Code
§ 46.2-357(B)(3). Nor does the mitigation provision of Code
§ 46.2-357(B)(2)(ii) serve to somehow require that the language
- 5 -
of the statute be interpreted in a manner that is inconsistent
with or different from the interpretation of other repeat
offender sections. In analogous circumstances, we had held that
Code § 18.2-248(C), addressing repeat drug offenders, does not
require that the defendant be convicted of a first drug offense
before he commits a second offense in order for the enhanced
punishment provision to apply. Jones, 21 Va. App. at 440, 464
S.E.2d at 560 (1995) (en banc).
Amendment of Indictment
Code § 19.2-231 authorizes a trial court to amend an
indictment, "provided the amendment does not change the nature
and character of the offense." Willis v. Commonwealth, 10 Va.
App. 430, 437, 393 S.E.2d 405, 408 (1990). "The statute
authorizes a trial court to amend indictments in two instances:
where there is a defect in form, or where there is a variance
between the allegations and the evidence, provided the amendment
does not change the nature or character of the offense charged."
Id. The statute is to be liberally construed in order to avoid
unnecessary delay in the criminal justice process by allowing
amendment, rather than requiring reindictment. Sullivan v.
Commonwealth, 157 Va. 867, 876-77, 161 S.E. 297, 300 (1931).
The record establishes that the Commonwealth's amendment
did not change the "nature or character of the offense charged."
Prior to the amendment, the indictment charged Thomas with
violating Code § 46.2-357 by having been declared an habitual
offender, and then operating a motor vehicle, "having been once
- 6 -
or more previously convicted and sentenced for a like offense."
The amended indictment charged that Thomas had driven on February
11, 1996, after having been declared an habitual offender, "being
a second or subsequent offense, in violation of Virginia Code
§ 46.2-357." The amended indictment charged Thomas under the
same code section and alleged the same actions in substantiation
of the charge. The changes effected by the amendment were
semantic in nature and did not substantively alter the charge
against Thomas. The amended indictment also satisfied the
requirements of Code § 19.2-220 in that it provided a "plain,
concise, and definite written statement . . . describing the
offense charged" by detailing the date, place, and nature of the
acts which Thomas were alleged to have committed and by "cit[ing]
the statute . . . that defines the offense."
Holding that Code § 46.2-357 is not vague or overly broad,
that it is consequently unnecessary to consider legislative
history in interpreting the statute, and that the trial court did
not err in permitting amendment of the indictment, we affirm.
Affirmed.
- 7 -