Dean v. Commonwealth
Decision Date | 04 December 2012 |
Docket Number | Record No. 1590–11–2. |
Citation | 61 Va.App. 209,734 S.E.2d 673 |
Parties | Wendell Kirk DEAN v. COMMONWEALTH of Virginia. |
Court | Virginia Court of Appeals |
OPINION TEXT STARTS HERE
Amy E. Thorpe, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: ELDER, PETTY and McCULLOUGH, JJ.
Wendell Kirk Dean (appellant) appeals his two jury trial convictions for robbery, a third or subsequent offense, in violation of Code §§ 18.2–58 and 19.2–297.1, for which he received two mandatory life sentences. On appeal, he contends the trial court erred in admitting evidence of two prior Maryland convictions for robbery because these convictions were not for offenses “substantially similar” to those listed in Code § 19.2–297.1. We agree. Thus, we reverse appellant's convictions for robbery, a third or subsequent offense under that code section, and remand for a new trial.1
Appellant robbed two different banks in Spotsylvania County in November 2010 and was apprehended while fleeing from the scene of the second robbery. After being arrested and advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), appellant confessed to the second robbery and also said he had served time in Maryland for “prior robberies.” The bank tellers in both Spotsylvania County robberies identified appellant as the perpetrator.
Appellant was indicted for two counts of robbery, third or subsequent offense. The Commonwealth notified appellant of its intent to rely on two prior Maryland convictions for robbery to prove the predicate offenses. Appellant moved to exclude the prior Maryland convictions, but the trial court ruled the records of those convictions would be admitted.
At trial, the Commonwealth's evidence proved appellant committed the two charged Spotsylvania County robberies. The Commonwealth's evidence also established that appellant was convicted in Maryland in 1983 for the 1982 robbery of a movie theater manager, against whom he used a “dangerous and deadly weapon” to steal $3,500 in U.S. currency. It also proved appellant was convicted in Maryland in 1992 for the 1992 robbery of a McDonald's employee, against whom he used a “dangerous and deadly weapon” to steal $2,000 in U.S. currency. Based on that evidence, appellant was convicted of robbery, a third or subsequent offense, and pursuant to Code § 19.2–297.1, he was sentenced to a mandatory term of imprisonment for life.
Following appellant's conviction and sentencing, he noted the instant appeal.
Generally, “[w]e review a circuit court's decision to admit or exclude evidence under an abuse of discretion standard and, on appeal, will not disturb [that] decision ... absent a finding of abuse of that discretion.” Herndon v. Commonwealth, 280 Va. 138, 143, 694 S.E.2d 618, 620 (2010). However, “ ‘ court by definition abuses its discretion when it makes an error of law.... ” Porter v. Commonwealth, 276 Va. 203, 260, 661 S.E.2d 415, 445 (2008) (alteration in original) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047–48, 135 L.Ed.2d 392, 414 (1996)). Therefore, to the extent admissibility rests upon the interpretation of a statute, that interpretation is a question of law subject to de novo review. Crawford v. Commonwealth, 281 Va. 84, 97, 704 S.E.2d 107, 115 (2011).
Appellant was convicted and sentenced pursuant to Code § 19.2–297.1, which provides in relevant part as follows:
Any person convicted of two or more separate acts of violence ... and who has been at liberty ... between each conviction, shall, upon conviction of a third or subsequent act of violence, be sentenced to life imprisonment and shall not have all or any portion of the sentence suspended, provided it is admitted, or found by the jury or judge before whom he is tried, that he has been previously convicted of two or more such acts of violence.
Code § 19.2–297.1(A). The statute further provides that “[f]or the purposes of this section,‘ act of violence ’ means[, inter alia,] ... [r]obbery under § 18.2–58.” Code § 19.2–297.1(A)(i)(e).214 Finally, the statute provides that necessary predicate convictions “shall include convictions under the laws of any state or of the United States for any offense substantially similar to those listed under ‘acts of violence’ if such offense would be a felony if committed in the Commonwealth.” Code § 19.2–297.1(B) (emphasis added).
No Virginia appellate court has previously determined what qualifies as an offense “substantially similar to those listed under ‘acts of violence’ ” for purposes of Code § 19.2–297.1. However, King v. Commonwealth, 2 Va.App. 708, 710, 347 S.E.2d 530, 531 (1986). Therefore, in determining what this “substantially similar” language means in Code § 19.2–297.1, we consider how this same language in other statutes has been interpreted. “Finally, a court must strictly construe a penal statute against the Commonwealth and limit its application to cases falling clearly within the statute.” Courtney v. Commonwealth, 281 Va. 363, 369, 706 S.E.2d 344, 347 (2011).
Virginia's appellate courts have set out several salient principles relevant to our analysis of whether the offense of robbery in Maryland is substantially similar to the offense of robbery in Virginia. First, the Commonwealth bears the burden of proving an out-of-state conviction was obtained under laws substantially similar to those of the Commonwealth. Shinault v. Commonwealth, 228 Va. 269, 271, 321 S.E.2d 652, 654 (1984). If the Commonwealth shows substantial similarity, the burden shifts to the defendant to produce “evidence of dissimilarity.” Rufty v. Commonwealth, 221 Va. 836, 839, 275 S.E.2d 584, 586 (1981).
Proving substantial similarity between two states' laws requires showing more than “a general likeness.” Shinault, 228 Va. at 271, 321 S.E.2d at 654. However, the laws need not be substantially similar “in every respect.” Cox v. Commonwealth, 13 Va.App. 328, 330–31 & n. 2, 411 S.E.2d 444, 445–46 & n. 2 (1991) ( ); see also Turner v. Commonwealth, 38 Va.App. 851, 860 n. 4, 568 S.E.2d 468, 472 n. 4 (2002) ( ). “In making this determination, we look to the elements of the two [offenses] rather than to the offender's conduct.” Commonwealth v. Ayers, 17 Va.App. 401, 402, 437 S.E.2d 580, 581 (1993).
Key to our analysis here is the established principle that a crime in another state is not “substantially similar” to the most closely corresponding crime under Virginia law if the other state's law “permits convictions for acts which could not be the basis for convictions under [the Virginia law at issue].” Cox, 13 Va.App. at 330–31, 333, 411 S.E.2d at 446,quoted with approval in Turner, 38 Va.App. at 860–62, 568 S.E.2d at 472–73 ( ). Compare Medici v. Commonwealth, 260 Va. 223, 230, 532 S.E.2d 28, 32 (2000) (), overruled on other grounds,270 Va. 325, 333, 619 S.E.2d 71, 76 (2005), with Cox, 13 Va.App. at 331, 411 S.E.2d at 446 ( ).
For example, another state's DUI statute is not substantially similar to Virginia's where Virginia's contains a rebuttable presumption of intoxication based on blood alcohol content, and the other state's statute contains a conclusive presumption based on that same information. Shinault, 228 Va. at 271–72, 321 S.E.2d at 654;see Cox, 13 Va.App. at 329, 331, 411 S.E.2d at 445, 446 ( ). Because the defendant could have been convicted, under the other state's statute, of behavior which would not have been a crime in Virginia, the other statute is not substantially similar. Cox, 13 Va.App. at 330–31, 411 S.E.2d at 446;see Turner, 38 Va.App. at 860–62, 568 S.E.2d at 472–73;see also United States v. Thomas, 367 F.3d 194, 197–99 (4th Cir.2004) (...
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