Guest v. Commonwealth

• Docket Number: Record No. 0672-22-2
• Decision Date: 08 August 2023
• Citation: 78 Va.App. 187,890 S.E.2d 653
• Parties: Tadashi D. GUEST v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

78 Va.App. 187

890 S.E.2d 653

Tadashi D. GUEST v. COMMONWEALTH of Virginia

Record No. 0672-22-2

Court of Appeals of Virginia, Richmond.

August 8, 2023

Catherine French Zagurskie, Chief Appellate Counsel(Virginia Indigent Defense Commission, on briefs), for appellant.

Justin B. Hill, Assistant Attorney General(Jason S. Miyares, Attorney General; Robin M. Nagel, Assistant Attorney General, on brief), for appellee.

Present: Judges Ortiz, Chaney and Senior Judge Haley

OPINION BY JUDGE DANIEL E. ORTIZ

The repeal of Code§ 18.2-104 is not retroactive, and a trial court may convict a defendant under the enhanced punishment scheme when the crime occurred prior to July 1, 2021.Tadashi Guest appeals his felony larceny conviction and sentence in Spotsylvania County Circuit Court.He argues that he pleaded guilty to an offense that "no longer existed," for which the court lacked jurisdiction, and that the trial court did not properly consider his mitigating factors in its sentencing.

We apply the principles described in Gionis v. Commonwealth¹ and find that courts should look to the date of the offense, not the indictment, when determining whether prosecution is available under a repealed and non-retroactive statute.Because Guest's criminal activity occurred before July 1, 2021, we find the Commonwealth had jurisdiction to prosecute under Code§ 18.2-104 and uphold his conviction.Furthermore, because the trial court did not abuse its discretion in sentencing Guest within the statutory range, and because there is no evidence that the trial court purposefully ignored Guest's mitigating factors, we affirm Guest's sentence.

BACKGROUND

On May 21, 2021, Guest entered a Lowe's store, picked up three items valued at $976, went to customer service, and attempted to "return" the items for money or store credit.After customer service refused to accept the items as returns, Guest left the store with the items and without paying for them.On May 28, 2021, Guest returned to the same Lowe's store without any merchandise and placed items worth $583.57 into his cart.This time, Guest was able to "return" those items as if they had been previously purchased.He received store credit for the value of the items and spent over $200 of the store credit on other merchandise.

The General Assembly repealed Code§ 18.2-104, effective July 1, 2021, which had provided enhanced punishment for repeat larceny offenders and elevated third offense misdemeanor larceny to a Class 6 felony.2021 Va. ActsSp. Sess. I ch. 192.On October 18, 2021, Guest was indicted for larceny shoplifting, third or subsequent offense, a Class 6 felony, in violation of Code§§ 18.2-103 and 18.2-104.²On December 3, 2021, Guest pleaded guilty pursuant to a plea agreement.The trial court accepted the plea and found Guest guilty of larceny shoplifting, third or subsequent offense.

During sentencing, Guest apologized and took responsibility for his actions.Defense counsel informed the trial court that Guest would lose his veterans’ benefits ³ if he were incarcerated for more than 90 days, which would result in Guest having to wait a year for housing benefit eligibility.Nevertheless, the trial court sentenced Guest to five years, with three years and six months suspended, for a total active time of one year and six months to serve.This appeal followed.

STANDARD OF REVIEW

Whether the General Assembly's repeal of Code§ 18.2-104 applies retroactively to this case is an issue of statutory interpretation and, therefore, presents "a pure question of statutory law that this Court reviews de novo. "McCarthy v. Commonwealth , 73 Va. App. 630, 638-39, 864 S.E.2d 577(2021).Our interpretation of Code§ 1-239 is similarly to be reviewed de novo.

But whether a trial court erred by imposing a particular sentence is reviewed for an abuse of discretion.Murry v. Commonwealth , 288 Va. 117, 122, 762 S.E.2d 573(2014)."If a sentence imposed is within the statutory limits fixed by the legislature, the assumption is that the sentence will not be disturbed on appeal."Bassett v. Commonwealth , 13 Va. App. 580, 582, 414 S.E.2d 419(1992)."This is the extent of our substantive sentencing review ‘[a]bsent an alleged statutory or constitutional violation.’ "Taylor v. Commonwealth , 77 Va. App. 149, 176-77, 884 S.E.2d 822(2023)(alteration in original)(quotingMinh Duy Du v. Commonwealth , 292 Va. 555, 563, 790 S.E.2d 493(2016) ).Because criminal sentencing is "so difficult, it must rest heavily on judges closest to the facts of the case—those hearing and seeing the witnesses, taking into account their verbal and nonverbal communication, and placing all of it in the context of the entire case."Minh Duy Du , 292 Va. at 563, 790 S.E.2d 493.

ANALYSIS

Guest argues that the trial court erred in accepting his guilty plea and in convicting and sentencing him under the felony enhancement of Code§ 18.2-104, as it was repealed by the General Assembly before he was indicted.Guest contends that this argument is preserved because the repeal of Code§ 18.2-104 renders his conviction void ab initio or, alternatively, because the ends of justice exception applies to his conviction.Guest elaborates that his conviction is void ab initio because the court lacked subject matter jurisdiction to continue its prosecution.The Commonwealth argues that the repeal of Code§ 18.2-104 is not retroactive and thus the court had jurisdiction to convict him of the felony offense of larceny shoplifting, third or subsequent offense.It is well established that the lack of subject matter jurisdiction "can be raised at any time in the proceedings , even for the first time on appeal[.]"Burfoot v. Commonwealth , 23 Va. App. 38, 51, 473 S.E.2d 724(1996)(quotingMorrison v. Bestler , 239 Va. 166, 170, 387 S.E.2d 753(1990) ).Outside of his claim that the court lacked subject matter jurisdiction, Guest's knowing and intelligent guilty plea would constitute a waiver of any arguments arising from any antecedent rulings.Thus, our analysis surrounding the retroactivity of Code§ 18.2-104 is viewed in the limited context of whether or not the trial court maintained jurisdiction over the matter.Guest also argues that the trial court abused its discretion by not giving "enough weight" to his mitigating factors when sentencing him to an active sentence of one year and six months.

We have held that the repeal of Code§ 18.2-104 is not retroactive.

Gionis v. Commonwealth , 76 Va. App. 1, 10, 880 S.E.2d 1(2022).Hence, this case turns on whether the triggering event under Code§ 1-239 is the indictment or the criminal offense.We find that the triggering event is the criminal offense.Thus, we look to whether the statute was in effect at the time the offense occurred to determine whether the felony enhancement is available under Code§ 18.2-104.Because Guest's larceny offense occurred prior to July 1, 2021, the court maintained jurisdiction to impose a felony under Code§ 18.2-104 and we affirm his conviction.Finally, because he was sentenced within the statutory range, his conviction and sentence were proper.

I.The trial court did not err by convicting Guest under Code§ 18.2-104, as his criminal offense occurred before its repeal.

To determine the existence of subject matter jurisdiction we begin with an examination of our retroactivity precedent and governing statutes.Generally, "[n]o new act of the General Assembly shall be construed to repeal a former law, as to any offense committed against the former law."Code§ 1-239.Although Virginia law usually "speaks prospectively,"Booth v. Booth , 7 Va. App. 22, 26, 371 S.E.2d 569(1988), there are two exceptions to this rule against retroactivity, ⁴McCarthy , 73 Va. App. at 647, 864 S.E.2d 577.First, a statute may be retroactive if it "contains ‘explicit terms’ demonstrating its retroactive effect."Id.Second, a statute may have retroactive effect if it affects " ‘remedial’ or ‘procedural’ rights rather than ‘substantive’ or ‘vested’ " rights.Id.;seeCode§ 1-239("[E]xcept that the proceedings thereafter held shall conform, so far as practicable, to the laws in force at the time of such proceedings ....").Substantive changes "decriminalize a class of conduct" or "prohibit the imposition of ... punishment on a particular class of persons."

Saffle v. Parks , 494 U.S. 484, 495, 110 S.Ct. 1257, 1264, 108 L.Ed.2d 415(1990);seeSchriro v. Summerlin , 542 U.S. 348, 353, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442(2004).Procedural changes "regulate only the manner of determiningthe defendant's culpability."Schriro , 542 U.S. at 353, 124 S.Ct. at 2523.

In Gionis , we determined that the repeal of Code§ 18.2-104 has no retroactive effect.76 Va. App. at 11, 880 S.E.2d 1("Given that both the criminal offense and the proceedings here against Gionis commenced before the repeal of Code§ 18.2-104 went into effect, the plain language of Code§ 1-239 prevents this Court from considering the repeal of Code§ 18.2-104 as being effective in this prosecution against Gionis.").But we did not determine whether the "triggering event" of Code§ 1-239 was the offense or indictment, as both the offense and indictment in Gionis occurred prior to the repeal of Code§ 18.2-104.Id. at 10-11, 880 S.E.2d 1("[T]here is no need to determine whether the triggering event would be from the moment the offense was committed or from when proceedings prosecuting the offense began when the result in answer to that question would be the same.").

"[I]nterpreting a law to apply retroactively is ‘not favored, and ... a statute is always construed to operate prospectively unless a contrary legislative intent is manifest.’ "Montgomery v. Commonwealth , 75 Va. App. 182, 189-90, 875 S.E.2d 101(2022)(quotingMcCarthy , 73 Va. App. at 647, 864 S.E.2d 577 ).When construing statutes, we look to "the intent of the legislature."Commonwealth v. Fairfax Cnty. Sch. Bd. & P.L. , 49 Va....