Ansell v. Com.

Decision Date12 January 1979
Docket NumberNo. 780377,780377
Citation250 S.E.2d 760,219 Va. 759
PartiesJohn Robert ANSELL v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

Harvey E. White, Jr., John L. Deal, Norfolk (White, Reynolds, Smith & Winters, Norfolk, on brief), for appellant.

Robert H. Herring, Jr., Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

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

COCHRAN, Justice.

In this appeal, the question for our determination is whether the enhanced punishment provision of Code § 18.2-53.1 1 applies to three separate offenses committed on the same day and tried together.

Appellant, John Robert Ansell, pleaded guilty in the court below to two indictments for robbery, one indictment for attempted robbery, and three indictments for use or display of a firearm in the commission of the primary felonies in violation of Code § 18.2- 53.1. All six offenses occurred within a period of 45 minutes on June 4, 1977. The trial court, finding Ansell guilty of each offense, sentenced him to serve in the state penitentiary for specified periods of time, not herein challenged, for the primary felonies, and for periods of one year on the first indictment under § 18.2-53.1, and three years each on the second and third indictments thereunder. Ansell argues that the court erred in applying the enhanced punishment provision of the statute to offenses committed prior to his first conviction, and that each of the sentences imposed upon him pursuant to § 18.2-53.1 should have been for only one year.

As the statute in question is penal in nature, it must be strictly construed and any ambiguity or reasonable doubt as to its meaning must be resolved in Ansell's favor. Cheatham v. Commonwealth, 215 Va. 286, 208 S.E.2d 760 (1974); Johnson v. Commonwealth, 211 Va. 815, 180 S.E.2d 661 (1971). This does not mean, however, that Ansell is entitled to a favorable result based upon an unreasonably restrictive interpretation of the statute. See Wesley v. Commonwealth, 190 Va. 268, 275-76, 56 S.E.2d 362, 365 (1949).

Ansell says that § 18.2-53.1 is analogous to the general recidivist statute, § 53-296, which provides additional punishment, on a graduated scale, for inmates of the state penal facilities who have been sentenced and confined previously in a penitentiary for the commission of other felonies. We have stated that the purposes of the recidivist statute are to protect society against habitual criminals and to impose further punishment upon them. Wesley v. Commonwealth, supra, 190 Va. at 276, 56 S.E.2d at 365. Moreover, the general rule is that the prior conviction must precede the commission of the primary offense in order to activate the enhanced punishment provision under habitual criminal statutes. Annot., 24 A.L.R.2d 1247, 1249 (1952). However, proceedings under § 53-296 are not criminal in nature, but are statutory proceedings in which a determination is made whether the records of the alleged prior crimes exist and the prisoner is the person who was convicted of those crimes. If these requirements are satisfied, additional punishment may be imposed because the former punishment failed to accomplish the reform for which it was intended. Tyson v. Hening, 205 Va. 389, 136 S.E.2d 832, Cert. denied, 379 U.S. 867, 85 S.Ct. 139, 13 L.Ed.2d 71 (1964).

Statutes such as § 18.2-53.1, providing additional punishment for subsequent commission of the same offense, 2 are criminal in nature. They are sometimes characterized as "specific recidivist" statutes. The first such Virginia statute which provided additional punishment for successive convictions of hog stealing was enacted in 1705, thus antedating our first general recidivist law (Acts 1796, c. 2) by nearly a century. Note, "Recidivism and Virginia's 'Come-Back' Law ", 48 Va.L.Rev. 597, 598 (1962). Such statutes may by their language require that the indictment state that the offense charged is a second or subsequent offense. See Commonwealth v. Ellett, 174 Va. 403, 409-10, 4 S.E.2d 762, 764 (1939). No such requirement, however, is mandated by § 18.2-53.1.

Ansell relies upon several cases from other jurisdictions, including Gonzalez v. United States, 224 F.2d 431 (1st Cir. 1955). In that case, the defendant was charged with violations of the federal narcotics laws. Prior to his conviction upon a guilty plea, he committed additional drug violations, was charged as a second offender, and was sentenced in accordance with the enhanced punishment provisions of the statute. Upon appeal, the sentencing order was vacated. The appellate court reviewed the cases from various jurisdictions, analyzed the purpose of the statute and its legislative history, and held that the subsequent offender provision of the statute applied only to narcotics offenders who committed offenses after convictions. See also State v. Carlson, 560 P.2d 26 (Alaska 1977); State ex rel. Jackson v. Henderson, 283 So.2d 210 (La.1973); Curtis v. State, 102 Ga.App. 790, 118 S.E.2d 264 (1960); Commonwealth v. Calio, 155 Pa.Super. 355, 38 A.2d 351 (1944).

The rationale of these decisions is that the primary purpose of such recidivist statutes is to serve as a warning to felons and to give them an incentive to reform. Indeed, Ansell argues that § 18.2-53.1 has no meaning unless its purpose is to reform. We disagree. The statute may have another...

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  • Graves v. Commonwealth
    • United States
    • Virginia Supreme Court
    • 12 Octubre 2017
    ...wide range of discretionary penalties originally authorized" with "[i]nflexible penalties" of specific duration. Ansell v. Commonwealth , 219 Va. 759, 763, 250 S.E.2d 760, 762 1979). The General Assembly later increased the sentences, but retained their character as fixed terms of incarcera......
  • Walker v. Commonwealth
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    ...without the trial court having convicted of a predicate first such offense. The Supreme Court's decision in Ansell v. Commonwealth , 219 Va. 759, 250 S.E.2d 760 (1979), confirms that this represents a distinction with a difference. The defendant in Ansell was charged and convicted in a sing......
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    ...intent expressed therein.” Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)). Upon conviction under Code § 18.2–53.1, a defendant “shall be sentenced to a mandatory minimum term of imprisonm......
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    ...intent expressed therein," Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)). Virginia Beach Municipal Code § 23-7.1 It shall be unlawful and a Class 1 misdemeanor for any person at a public......
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