Gionis v. Commonwealth

• Decision Date: 22 November 2022
• Docket Number: Record No. 1197-21-3
• Citation: 76 Va.App. 1,880 S.E.2d 1
• Parties: Peter Timothy GIONIS v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

76 Va.App. 1

880 S.E.2d 1

Peter Timothy GIONIS

v.COMMONWEALTH of Virginia

Record No. 1197-21-3

Court of Appeals of Virginia, Salem.

November 22, 2022

Caleb J. Routhier (Miller, Earle & Shanks, PLLC, on briefs), Luray, for appellant.

Rosemary V. Bourne, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Beales, Malveaux and Causey

OPINION BY JUDGE RANDOLPH A. BEALES

Peter Timothy Gionis appeals an order of the Circuit Court of Rockingham County convicting him of petit larceny, third or subsequent offense, under Code §§ 18.2-103 and 18.2-104. Gionis raises two assignments of error on appeal. First, he contends that the trial court "erred by refusing to treat the crime as a misdemeanor." Second, he contends that the trial court "erred by declining to overturn Ruplenas v. Commonwealth [, 221 Va. 972, 275 S.E.2d 628 (1981) ]."

I. BACKGROUND

On December 21, 2020, a grand jury issued an indictment against Peter Timothy Gionis for stealing merchandise "having a value of less than $500.00 and belonging to Sheetz" on or about May 29, 2020. According to the indictment, Gionis "ha[d] been convicted two or more times previously of larceny offenses or of offenses deemed or punishable as larceny." Consequently, Gionis was charged with a Class 6 felony pursuant to Code § 18.2-104. The same day the indictment was issued, Gionis appeared before the Circuit Court of Rockingham County asking for a continuance until January 21, 2021. On January 21, 2021, Gionis rejected a plea agreement and decided to proceed with a jury trial. The trial court set a hearing for June 7, 2021. At the hearing on June 7, 2021, the trial court set a jury trial for July 22, 2021. However, on July 1, 2021, the trial court granted another motion to continue by Gionis and set a new trial date for August 17, 2021.

On July 16, 2021, Gionis filed a motion in limine asking the trial court to treat his crime as misdemeanor larceny instead of as felony larceny because, effective July 1, 2021, the General Assembly had repealed Code § 18.2-104. The trial court held "that the law in existence at the time of the alleged crime controls the case." The trial judge explained that "[t]here is no language in the repeal statute that makes the repeal retroactive. The change in this case and the law seems to apply to the substantive rights of the parties." The trial court declined to ignore Ruplenas , and, of course, had no authority to overrule it. It also found that the Commonwealth did not consent to using the revised statute. Consequently, the trial court denied Gionis's motion in limine and then scheduled the jury trial for October 21, 2021.

Gionis later entered an Alford guilty plea to the larceny pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and conditioned his plea upon his right to appeal.¹ Code § 19.2-254. The trial court convicted Gionis upon his guilty plea and sentenced him pursuant to his plea agreement. Gionis now appeals to this Court.

II. ANALYSIS

On appeal, Gionis argues that the trial court erred in convicting him of larceny, third or subsequent offense—a felony—instead of simple misdemeanor larceny. He argues that he could no longer be convicted of larceny, third or subsequent offense, under Code §§ 18.2-103 and 18.2-104 because the General Assembly had repealed Code § 18.2-104 before he was convicted. Gionis makes this argument even though the statute was still in full force and effect at the time that he committed the offense and at the time criminal proceedings against him began. Consequently, resolution of this case turns on whether the repeal of Code § 18.2-104 affected the Commonwealth's prosecution of Gionis by retroactively causing that he could no longer be convicted of a felony—only a misdemeanor. In deciding this case, we rely on Code § 1-239 and we review general principles regarding the retroactive application of statutes as stated by the Supreme Court of Virginia. See e.g. , Appalachian Power Co. v. State Corp. Comm'n , ––– Va. ––––, ––––, 876 S.E.2d 349 (2022) ; Bell ex rel. Bell v. Casper ex rel. Church , 282 Va. 203, 213, 717 S.E.2d 783 (2011) ; Berner v. Mills , 265 Va. 408, 413, 579 S.E.2d 159 (2003) ; Adams v. Alliant Techsystems, Inc. , 261 Va. 594, 599, 544 S.E.2d 354 (2001) ; Ruplenas , 221 Va. at 977-78, 275 S.E.2d 628 ; Shilling v. Commonwealth , 4 Va. App. 500, 507, 359 S.E.2d 311 (1987) ("Every reasonable doubt is resolved against a retroactive operation of a statute, and words of a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them.").

A. Standard of Review

The question of whether the General Assembly's repeal of Code § 18.2-104 has retroactive effect on this case presents a question of law which this Court reviews de novo.

Green v. Commonwealth , 75 Va. App. 69, 76, 873 S.E.2d 96 (2022). We conduct our analysis taking into account well-established principles of statutory construction. "The Virginia Supreme Court has long held that ‘when analyzing a statute, we must assume that "the legislature chose, with care, the words it used ... and we are bound by those words as we [examine] the statute." ’ " Doulgerakis v. Commonwealth , 61 Va. App. 417, 420-21, 737 S.E.2d 40 (2013) (first alteration in original) (quoting City of Va. Beach v. ESG Enters. , 243 Va. 149, 153, 413 S.E.2d 642 (1992) ). Consequently, we "apply[ ] the plain meaning of the words unless they are ambiguous or [doing so] would lead to an absurd result." Wright v. Commonwealth , 278 Va. 754, 759, 685 S.E.2d 655 (2009). In considering the meaning of particular language in context, "[w]ords in a statute should be interpreted, if possible, to avoid rendering [other] words superfluous." Cook v. Commonwealth , 268 Va. 111, 114, 597 S.E.2d 84 (2004) ; see Epps v. Commonwealth , 47 Va. App. 687, 714, 626 S.E.2d 912 (2006) (en banc ) (requiring a court to "giv[e] to every word and every part of the statute, if possible, its due effect and meaning" (quoting Posey v. Commonwealth , 123 Va. 551, 553, 96 S.E. 771 (1918) )), aff'd , 273 Va. 410, 641 S.E.2d 77 (2007).

B. Code § 1-239 Applies to the Repeal of a Statute

The statute under which Gionis was convicted, and the subject of his first assignment of error, is Code § 18.2-104 (repealed 2021). Prior to July 1, 2021, this statute provided that a third (or subsequent) conviction for petit larceny was punishable as a Class 6 felony. Former Code § 18.2-104 (2014 Replacement Volume). In February 2021, the General Assembly passed and enrolled House Bill 2290 ("HB 2290"). After approval by the Governor that bill was published as Chapter 192 in the "2021 Virginia Acts of the General Assembly, Special Session I." The entirety of its substantive text reads, "Be it enacted by the General Assembly of Virginia: 1. That § 18.2-104 of the Code of Virginia is repealed." 2021 Va. Acts, Spec. Sess. I ch. 192. The repeal of Code § 18.2-104 became effective July 1, 2021. See Code § 1-214(B) ; Article IV, Section 13, of the Virginia Constitution.² By repealing this statute, the General Assembly removed the enhanced penalties for subsequent larceny convictions provided for in that statute.

Code § 18.2-104 was the law in effect both at the time that Gionis committed larceny and at the time he was indicted. However, it was repealed before Gionis was actually convicted. Consequently, we are left to determine whether the repeal of Code § 18.2-104 had an immediate or "retroactive" effect on Gionis's pending case such that he could no longer be convicted under Code § 18.2-104. See Somers v. Commonwealth , 97 Va. 759, 761, 33 S.E. 381 (1899) ; Street v. Commonwealth , 75 Va. App. 298, 310-11, 876 S.E.2d 202 (2022) ; see also McCarthy v. Commonwealth , 73 Va. App. 630, 647-49, 864 S.E.2d 577 (2021). In doing so, we apply Code § 1-239 and review general principles of retroactivity.

Code § 1-239 generally prevents any court from interpreting a repeal as having a retroactive effect. However, Code § 1-239 only applies to new acts of the General Assembly. During oral argument before this Court, the question arose whether the repeal of Code § 18.2-104 was such a "new act" because it simply removed from, rather than added to, the Code. Code § 1-239 provides:

No new act of the General Assembly 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 act of the General Assembly takes effect; except that the proceedings thereafter held 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 act of the General Assembly, such provision may, with the consent of the party affected, be applied to any judgment pronounced after the new act of the General Assembly takes effect.

(Emphasis added).

HB 2290 certainly bears the marks of a "new act of the General Assembly," as described in Code § 1-239. Like all bills passed by the General Assembly and approved by the Governor, HB 2290 was published in the Acts of Assembly, and the General Assembly identified HB 2290 as an "act of the General Assembly" when it included the following language in the preamble of HB 2290 before enrolling it for approval by the Governor: "An Act to repeal § 18.2-104 ...." (Emphasis added).³

Other provisions of the Code of Virginia also show that the General Assembly has defined "acts" to include legislative actions broader than merely those bills which are codified. See Code § 1-214 (delineating between "laws" and varieties of "acts...