William Boyd Swinson v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
WILLIAM BOYD SWINSON
MEMORANDUM OPINION * BY
v. Record No. 0157-94-2 JUDGE LARRY G. ELDER
OCTOBER 3, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS
Herbert C. Gill, Jr., Judge
Michael HuYoung (Jane Chittom; Shuford, Rubin &
Gibney, on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
William Boyd Swinson (appellant) appeals his misdemeanor
conviction for petit larceny by obtaining money by false
pretenses in violation of Code § 18.2-178. Appellant contends
that his prosecution, commenced by amended indictment on December
13, 1993, for a misdemeanor committed on December 20, 1990, was
time barred. Specifically, appellant argues (1) the subsequent
misdemeanor charge was not a lesser included offense of the
original felony charge; (2) the original felony indictment was
void; and (3) the subsequent prosecution violated his
constitutional due process rights. Because the trial court
committed no error, we affirm appellant's conviction.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
FACTS
On December 20, 1990, appellant attempted to obtain a refund
for merchandise that he had just removed from the rack at a Sears
& Roebuck store. Appellant was arrested for petit larceny by
obtaining money by false pretenses, as a third offense larceny in
violation of Code §§ 18.2-178 1 and 19.2-297. 2 A warrant was
issued on December 20, 1990, appellant was indicted on this
charge on July 8, 1991, and he was convicted on September 10,
1991.
On August 17, 1993, the Court of Appeals held in Swinson v.
Commonwealth, 16 Va. App. 923, 434 S.E.2d 348 (1993)(Swinson I),
that there was sufficient evidence to convict appellant of petit
larceny by obtaining money by false pretenses in violation of
1
Code § 18.2-178 provides:
If any person obtain, by any false pretense or
token, from any person, with intent to defraud,
money or other property which may be the subject
of larceny, he shall be deemed guilty of larceny
thereof . . . .
2
Code § 19.2-297 provides:
When a person is convicted of petit larceny, and
it is alleged in the indictment on which he is
convicted, and admitted, or found by the jury or
judge before whom he is tried, that he has been
before sentenced in the United States for any
larceny of any offense deemed to be larceny by the
law of the sentencing jurisdiction, he shall be
confined in jail not less than thirty days nor
more than twelve months; and for a third, or any
subsequent offense, he shall be guilty of a Class
6 felony.
(Emphasis added).
2
Code § 18.2-178, but reversed and remanded "the conviction for a
new trial on the charge of obtaining money by false pretenses
pursuant to Code § 18.2-178, a misdemeanor." (Emphasis added).
The Court held that obtaining money by false pretenses was not an
appropriate offense for purposes of sentence enhancement under
Code § 19.2-297 and stated that "only a conviction of petit
larceny in violation of Code § 18.2-96 may be enhanced by a prior
conviction of an offense deemed to be larceny by Code
§ 19.2-297."
On remand, the Commonwealth moved to amend the July 8, 1991
indictment to charge only petit larceny by obtaining money by
false pretenses in violation of Code § 18.2-178, a misdemeanor.
The indictment deleted the language charging a felony pursuant to
the sentence enhancement provision of Code § 19.2-297, but
otherwise retained the original language. Appellant moved to
dismiss the amended indictment, but the trial court rejected his
arguments and granted the Commonwealth's motion to amend the
indictment on December 13, 1993. On January 10, 1994, appellant
was tried by a jury and convicted of petit larceny by obtaining
money by false pretenses, a misdemeanor.
I.
We first hold that the Commonwealth properly amended the
indictment and that the indictment was not void ab initio. Code
§ 19.2-8 requires that "[a] prosecution for a misdemeanor, or any
pecuniary fine, forfeiture, penalty, or amercement, shall be
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commenced within one year next after there was cause therefor,
except that a prosecution for a petit larceny may be commenced
within five years . . . ." See Kelley v. Commonwealth, 17 Va.
App. 540, 544 n.1, 439 S.E.2d 616, 619 n.1 (1994). The issuance
of a warrant commences a prosecution within the meaning of Code
§ 19.2-8. Hall v. Commonwealth, 2 Va. App. 159, 162, 342 S.E.2d
640, 641 (1986)(citing Ange v. Commonwealth, 217 Va. 861, 862,
234 S.E.2d 64, 65 (1977)). Here, the warrant was issued on the
same day the crime was committed.
As we have also stated:
The fact that the warrant (and subsequent indictment)
charged a felony . . . does not bar prosecution for a
lesser included misdemeanor so long as the prosecution
was commenced within the applicable limitation period.
An indictment may be amended "provided the amendment
does not change the nature or character of the offense
charged."
Hall, 2 Va. App. at 162-63, 342 S.E.2d at 641-42 (citing Code
§ 19.2-231)(footnote omitted). In this case, the original
indictment, issued July 8, 1991 read:
On or about the 20th day of December, 1990, in the City
of Colonial Heights, WILLIAM BOYD SWINSON, did
unlawfully and feloniously with intent to defraud,
obtain, by false pretenses, property/merchandise having
a value of less than $200.00 and being the property of
Sears, Southpark Mall; having been previously convicted
two (2) times for larceny in the United States. Va.
Code Ann. § 18.2-78; § 19.2-297.
The amended indictment, issued December 13, 1993, read:
On or about the 20th day of December, 1990, in the City
of Colonial Heights, WILLIAM BOYD SWINSON, did
unlawfully with intent to defraud, obtain, by false
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pretenses, property/merchandise having a value of less
than $200.00 and being the property of Sears, Southpark
Mall. Va. Code § 18.2-78.
As the Commonwealth correctly asserts, the amendment merely
deleted any references to felonious conduct and appellant's prior
larceny convictions, which would have enhanced the penalty for
the charged offense. 3 "The amendments did not change the nature
of the offense; they merely had the effect of reducing the charge
from a felony to a misdemeanor." Hall, 2 Va. App. at 163, 342
S.E.2d at 642. Thus, because "[t]he amendment neither changed
the nature or character of the offense charged nor resulted in
surprise or prejudice to [appellant]," Cantwell v. Commonwealth,
2 Va. App. 606, 609, 347 S.E.2d 523, 524 (1986), the trial court
did not err in allowing appellant to be tried on the amended
misdemeanor charge.
We also reject appellant's contention that the indictment
was void ab initio. In Wilder v. Commonwealth, 217 Va. 145, 147,
225 S.E.2d 411, 413 (1976), the Supreme Court determined that an
indictment is void where it states no offense. See also Wall
Distribs., Inc. v. City of Newport News, 228 Va. 358, 362, 323
S.E.2d 75, 77-78 (1984)(stating indictment was not void where
there was no misunderstanding as to what it charged). Appellant
argues that because we determined in Swinson I that there is no
3
As the trial court recognized, "it is the same offense
without the enhanced penalty." Similarly, in Swinson I, this
Court remanded appellant's case specifically directing that he be
tried on the same charge--only as a misdemeanor, not a felony.
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such offense as felonious petit larceny in violation of Code
§ 18.2-178, the original indictment was void. We reject
appellant's argument for the reasons stated above and conclude
that the enhanced penalty language, which was included in the
original indictment, did not invalidate the underlying charge of
violating Code § 18.2-178, a misdemeanor.
II.
Appellant also asserts that the Commonwealth violated his
constitutional due process rights when it tried him for a second
time, after the original one-year statute of limitations expired.
Due process rights are primarily intended to prevent prejudice
to a defendant caused by the mere passage of time from the
commission of the crime until trial. Holliday v. Commonwealth, 3
Va. App. 612, 616, 352 S.E.2d 362, 364 (1987)(citing United
States v. McDonald, 456 U.S. 1 (1982)); Walker v. Commonwealth, 4
Va. App. 286, 296, 356 S.E.2d 853, 858 (1987). However, as the
United States Supreme Court has recognized, the "Due Process
Clause has [only] a limited role to play in protecting against
oppressive delay." United States v. Lovasco, 431 U.S. 783, 789
(1977). "The due process clause may provide a criminal defendant
with some protection against overly stale claims if the defendant
can establish that (1) the prosecutor intentionally delayed
indicting him to gain a tactical advantage and (2) the defendant
incurred actual prejudice as a result of the delay." Hall v.
Commonwealth, 8 Va. App. 526, 529, 383 S.E.2d 18, 20 (1989)
6
(citation omitted).
In this case, appellant does not allege that the prosecutor
intentionally delayed re-indicting him to gain a tactical
advantage, or that the Commonwealth, in any way, purposefully
delayed issuing an amended indictment. Appellant also fails to
allege that he incurred actual prejudice as a result of the
delay. Instead, appellant's sole due process argument asserts
that after the Commonwealth mistakenly tried him on the original
felony charge, it overzealously prosecuted him on the misdemeanor
charge. This argument fails to present a convincing due process
claim, as the record reveals that the Commonwealth prosecuted
appellant without delay both times and that it did not, in bad
faith, originally indict him on an enhanced punishment felony
charge. Therefore, we hold that appellant was not denied due
process.
Accordingly, we affirm the conviction.
Affirmed.
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