Johnson v. Commonwealth

• Decision Date: 07 July 2015
• Docket Number: Record No. 1138-14-2
• Court: Virginia Court of Appeals
• Parties: RONALD EDWARD JOHNSON, JR. v. COMMONWEALTH OF VIRGINIA

RONALD EDWARD JOHNSON, JR. v. COMMONWEALTH OF VIRGINIA

Record No. 1138-14-2

COURT OF APPEALS OF VIRGINIA

JULY 7, 2015

UNPUBLISHED

Present: Chief Judge Huff, Judges Beales and AtLee

Argued at Richmond, Virginia

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG

Gordon F. Willis, Judge

Mark S. Gardner (Gardner & Haney, P.C., on briefs), for appellant.

David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

A judge convicted Ronald Edward Johnson, Jr. of three counts of felony failure to appear. Johnson alleges that conviction of more than one count violated the Double Jeopardy clauses of the United States Constitution and the Virginia Constitution. We disagree and affirm.

I. BACKGROUND

On appeal of a criminal conviction, we view the facts in the light most favorable to the Commonwealth, and draw all reasonable inferences flowing from those facts. Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 (1991). So viewed, the facts are as follows.

Johnson was served with three felony warrants charging forgery, uttering, and attempting to obtain money by false pretenses, and was required to appear for preliminary hearing on those charges in the Fredericksburg General District Court on June 20, 2013. He did not do so. In2014 a Fredericksburg grand jury returned three felony indictments charging Johnson with failure to appear in the general district court on June 20, 2013, in violation of Code § 19.2-128(B). The three indictments alleged, respectively, that he failed to appear "as required on the felony charge of attempt to obtain money by false pretenses," "as required on the felony charge of forgery," and "as required on the felony charge of uttering."

Johnson moved to dismiss two of the three counts, arguing that conviction of more than one count violated the Double Jeopardy clauses of the United States Constitution and the Virginia Constitution. The circuit court denied his motion. Ultimately, Johnson entered conditional guilty pleas to the three charges and noted his appeal to this Court.

II. ANALYSIS

A. Standard of Review

"We review a trial court's application of a statute de novo." Bowling v. Commonwealth, 51 Va. App. 102, 108, 654 S.E.2d 354, 357 (2007). Similarly, "[w]e review de novo claims that multiple punishments have been imposed for the same offense in violation of the double jeopardy clause." Lawlor v. Commonwealth, 285 Va. 187, 227, 738 S.E.2d 847, 870 (2013).

B. Rules 5A:18 and 2:201

Before addressing Code § 19.2-128 and double jeopardy, we resolve several procedural issues. In his brief, for the first time on appeal, Johnson attempts to buttress his double jeopardy argument in part by stressing that he endorsed only one written promise to appear¹ when heposted bail for the three underlying felony charges in the general district court. We agree with the Commonwealth that Rule 5A:18 forecloses consideration of this argument.

Rule 5A:18 reads, in relevant part:

No ruling of the trial court or the Virginia Workers' Compensation Commission will be considered as a basis for reversal unless an objection was stated with reasonable certainty at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice.

We do not consider arguments raised for the first time on appeal. McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717, 720 (1999). This remains true even if an appellant raised related arguments in the trial court. See Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003) (en banc) ("Making one specific argument on an issue does not preserve a separate legal point on the same issue for review."). By failing to make an argument in the circuit court based on the bond paperwork, Johnson waived any such argument in this Court.

Johnson urges us to use the ends of justice exception in Rule 5A:18 to consider the bond paperwork and his arguments surrounding it. To use the ends of justice exception in this manner would be to misapply the exception, and we decline to do so. We employ the ends of justice exception to consider an inadequately preserved objection, not to consider physical evidence which an appellant never introduced in the trial court.

Citing Rule 2:201, Johnson asks us to take judicial notice of the bond paperwork. Rule 2:201 states, in relevant part:

(a) Notice. A court may take judicial notice of a factual matter not subject to reasonable dispute in that it is either (1) common knowledge or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (b) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

The broad wording of subsection (b) permits us to take judicial notice of "a factual matter." But when that matter is a document (other than this Court's own records), our authority iscircumscribed by what the trial court relied upon when it took judicial notice of such document. See Commonwealth v. Woodward, 249 Va. 21, 23, 452 S.E.2d 656, 657 (1995) (striking a 44-page addendum attached by the Commonwealth to its brief in a Workers' Compensation Act appeal, and explaining that "an appellate court may not take judicial notice of such documents when they were not relied upon before the court or commission below"). That the document purports to be a record of a lower court does not provide any additional weight to Johnson's judicial notice argument. Plummer v. Commonwealth, 211 Va. 706, 707, 180 S.E.2d 519, 520 (1971) (per curiam) (agreeing that an appellate court may take judicial notice of its own records, but stating "we are without authority to take such notice of the records of the lower court"). The bond paperwork was not "relied upon before the court" below, so we will not take judicial notice of it now.²

C. Double Jeopardy

Johnson claims that his conviction of more than one count of failure to appear violated the Double Jeopardy clauses of the United States Constitution and the Virginia Constitution. "The double jeopardy clauses of the United States and Virginia Constitutions provide that no person shall be put twice in jeopardy for the same offense." Martin v. Commonwealth, 221 Va. 720, 722, 273 S.E.2d 778, 780 (1981). The prohibition against double jeopardy "embodies three guarantees: '(1) "It protects against a second prosecution for the same offense after acquittal. [(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense."'" Blythe v. Commonwealth, 222Va. 722, 725, 284 S.E.2d 796, 797 (1981) (quoting Illinois v. Vitale, 447 U.S. 410, 415 (1980) (footnotes omitted) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969))). Here we address the third of these guarantees, which bars multiple punishments for the same offense.

Though multiple punishments for the same offense are constitutionally prohibited, "'conduct may constitute more than one violation of a single criminal proscription.'" Sandoval v. Commonwealth, 64 Va. App. 398, 417, 768 S.E.2d 709, 718-19 (2015) (quoting Jordan v. Commonwealth, 2 Va. App. 590, 593, 347 S.E.2d 152, 154 (1986)). As this Court stated in Jordan, it is the legislature that decides how crime is punished:

The legislature in its discretion may determine the appropriate "unit of prosecution" and set the penalty for separate violations . . . . Where the legislature has authorized cumulative punishments, regardless of whether the offenses are the "same," the prosecutor may seek and the trial court may impose cumulative punishments in a single trial.

Jordan, 2 Va. App. at 594, 347 S.E.2d at 154 (citations omitted) (footnote omitted). For the reasons that follow, we hold that the legislature intended the unit of prosecution in Code § 19.2-128(B) to correspond to the number of underlying offenses for which a defendant is obligated to appear.

1. Code § 19.2-128(B)

"'The multiple punishments prohibition . . . remains from start to finish wholly dependent on statutory interpretation.'" Sandoval, 64 Va. App. at 417, 768 S.E.2d at 718-19 (quoting De'Armond v. Commonwealth, 51 Va. App. 26, 33, 654 S.E.2d 317, 320 (2007)). Code § 19.2-128(B) states: "Any person (i) charged with a felony offense or (ii) convicted of a felony offense and execution of sentence is suspended pursuant to § 19.2-319 who willfully fails to appear before any court as required shall be guilty of a Class 6 felony." Johnson failed to appear for his preliminary hearing on three pending felonies, so subsection (i) addresses his conduct.

"The Virginia Supreme Court has long held that '[w]hen 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 interpret the statute."'" Hodges v. Dep't of Soc. Servs., Div. of Child Support Enforcement, 45 Va. App. 118, 126, 609 S.E.2d 61, 64-65 (2005) (quoting City of Va. Beach v. ESG Enters., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting Barr v. Town and Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990))).

We must presume that the legislature's decision to include or leave out even a single letter or word in a statute is intentional and meaningful. See, e.g., Tiller v. Commonwealth, 193 Va. 418, 422-23, 69 S.E.2d 441, 443-44 (1952) (analyzing the legislative decision to use the phrase "dual wheels" instead of "dual wheel" in § 46-334 of the Code); Posey v. Commonwealth, 123 Va. 551, 554-55, 96 S.E. 771, 772 (1918) (interpreting a taxation statute and the legislature's use of the word "rates," as opposed to "rate," and noting that inclusion of a plural word instead of a singular word "could not have been an 'inadvertence of the draftsman,' as contended by counsel").

Here, the legislature chose to criminalize the failure to appear of anyone charged "with a felony offense," rather than, for example, "with...