Abdo v. Com.

• Decision Date: 07 October 1977
• Docket Number: No. 770050,770050
• Citation: 237 S.E.2d 900,218 Va. 473
• Court: Virginia Supreme Court
• Parties: John Joseph ABDO, a/k/a Hanna Yousef Khalil Abdo v. COMMONWEALTH of Virginia. Record

Page 900

237 S.E.2d 900

218 Va. 473

John Joseph ABDO, a/k/a Hanna Yousef Khalil Abdo v. COMMONWEALTH of Virginia.

Record No. 770050.

Supreme Court of Virginia.

Oct. 7, 1977.

John Kenneth Zwerling, Richmond, for plaintiff in error.

Jerry P. Slonaker, Asst. Atty. Gen. (Anthony F. Troy, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

HARRISON, Justice.

John Joseph Abdo was convicted by a jury on December 4, 1975, of manufacturing phencyclidine, a controlled substance. His punishment was fixed at 12 years confinement in the penitentiary, a sentence within the limits prescribed by Code § 54-524.101:1(a). Final judgment of conviction was entered by the trial court on January 8, 1976, and defendant noted an appeal. Section 54-524.101:1(a) had been repealed and reenacted as Code § 18.2-248, effective October 1, 1975, but the penalty provision of the statute had been unaffected. However, during the time Abdo's petition for a writ of error was pending, the General Assembly amended and reenacted § 18.2-248. The 1976 enactment, which became effective on July 1, l976, provides that a violator with respect to a Schedule III controlled substance (which at that time included phencyclidine) shall be guilty of a Class 1 misdemeanor and punished by confinement in jail for not exceeding 12 months and a fine not exceeding $1,000, either or both. ¹

The issue is whether under the circumstances related the trial court was required to reduce the defendant's sentence to conform with the lesser penalty, Abdo's motion for reduction of sentence having been filed after July, 1976, and prior to completion of appellate review.

Defendant's petition for a writ of error was denied and the judgment below was affirmed by our order entered September 29, 1976. On August 3, 1976, while his petition for a writ was pending, Abdo moved the trial court to exercise its jurisdiction, pursuant to Code § 53-272, and to reduce defendant's sentence to one appropriate for a Class 1 misdemeanor. Defendant was then incarcerated in the Arlington County jail and the trial court ordered that he not be transferred to the penitentiary so that the court would not lose jurisdiction to hear and to consider his motion. On October 1, 1976, the court denied defendant's motion for reduction of sentence (declined to change the sentence it had imposed), and remanded defendant to jail. ²

Thereafter, on October 20, 1976, upon defendant's motion to suspend a portion of his sentence, the court ordered that four years of the original 12-year sentence be suspended and that defendant be given credit for the time already served. This order remanded defendant to jail to await transportation to the penitentiary. Defendant's assignment of error challenges the refusal of the trial court to conform "petitioner's sentence to the law in force at the time of petitioner's motion to reduce sentence".

Defendant argues that Virginia is a common law state, citing Code § 1-10, and says that:

"At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them. (Citations omitted.) Abatement by repeal included a statute's repeal and re-enactment with different penalties. (Authority omitted.) And the rule applied even when the penalty was reduced. * * * " Bradley v. United States, 410 U.S. 605, 608, 93 S.Ct. 1151, 1154, 35 L.Ed.2d 528 (1973).

See also Bell v. State of Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964).

Abdo further contends that although the general effect of Code § 1-16 is to preclude retroactive application of new statutes, the statute must be strictly construed against the Commonwealth and in his favor because it is in derogation of the common law. The section provides that:

"Repeal not to affect liabilities; mitigation of punishment. No new law shall be construed to repeal a former law, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued, or claim arising before the new law takes effect; save only that the proceedings thereafter had shall conform, so far as practicable, to the laws in force at the time of such proceedings; and if any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, with the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. * * * " (Italics supplied.)

Abdo's position is that the italicized portion of Code § 1-16 must be given effect in subsequent proceedings when practicable. He says that his motion for reduction of sentence was timely made because he had not been transferred to the penitentiary, and his motion was a "proceeding" within the contemplation of Code § 1-16. Defendant sees no "practical" reason why he should not have been accorded the benefit of the statutory change and his punishment reduced to accord with that provided for a misdemeanor.

Alternatively, he argues that beyond dispute the trial judge had the discretionary power under Code § 53-272 to alter the sentence fixed by the jury. He says that the General Assembly, by lowering the punishment for the offense he committed, unequivocally expressed its judgment that the lesser penalty was sufficient to meet the legitimate ends of the criminal law, and that nothing is to be gained by inflicting on him the more severe penalty. He concludes that under these circumstances the failure of the trial court to grant his motion amounted to an abuse of discretion.

The Attorney General's position is that the language contained in Code § 1-16, which we have italicized, relates only to changes in procedure being utilized so far as practicable, and has no application to mitigation of penalty or punishment. He says that the matter of penalty or punishment is addressed specifically in the last paragraph of Code § 1-16, which provides: "(I)f any penalty, forfeiture or punishment be mitigated by any provision of the new law, such provision may, with consent of the party affected, be applied to any judgment pronounced after the new law takes effect." (Emphasis added.) In support, our attention is directed to the West Virginia statute which is virtually the same as Code § 1-16, and to Carlton v. Herndon, 81 W.Va. 219, 94 S.E. 131 (1917), where the court said:

"But for * * * (the statute) saving the right of the state to proceed against persons guilty of offenses committed under laws repealed after the commission thereof, the application for discharge on the writ of habeas corpus awarded the prisoner would no doubt be well founded. It declares the repeal or expiration of the law shall not affect the offense committed, nor the penalty or punishment imposed therefor, beyond variation of the procedure. The saving clause is not an exception of any offense, penalty, or punishment from the operation of the act. None of them are to be affected by the repeal or expiration. They all survive. But there is an exception or variation as to the procedure. In other words, the repeal or expiration affects nothing but the procedure, and, as to that, the act provides that

" 'The proceedings thereafter had shall conform, as far as practicable, to the laws in force at the time such proceedings take place.'

* * *

* * *

"The penal part of the statute is clear. It maintains and keeps alive the old offense and penalty. Only the procedure is altered or made over, and it is not altered, except in those instances in which the new method is practicable. * * * " 81 W.Va. at 220-21, 94 S.E. at 131-32. (Emphasis added.)

To the same effect, see People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359 (1963), cert. denied, 376 U.S. 910, 84 S.Ct. 665, 11 L.Ed.2d 608 (1964), and Jones v. Commonwealth, 104 Ky. 468, 47 S.W. 328 (1898), construing statutes of Illinois and...