Lilly v. Com.

• Decision Date: 31 July 2007
• Docket Number: Record No. 1635-05-4.
• Citation: 50 Va. App. 173,647 S.E.2d 517
• Parties: Elsie Lorraine LILLY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

647 S.E.2d 517

50 Va. App. 173

Elsie Lorraine LILLY v. COMMONWEALTH of Virginia.

Record No. 1635-05-4.

Court of Appeals of Virginia, Richmond.

July 31, 2007.

Michael R. Zervas (Bradley Law Firm, P.C., on brief), Madison, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: ELDER, KELSEY and McCLANAHAN, JJ.

D. ARTHUR KELSEY, Judge.

Convicted of driving after being declared an habitual offender, Elsie Lorraine Lilly contends that a partial repeal of the habitual offender statute in 1999 rendered continuing enforcement of the unrepealed portion unconstitutional. She also contends the trial court improperly precluded her counsel from informing the jury, prior to sentencing, about the mandatory minimum punishment she would face as a declared habitual offender and the legislative abolition of further civil declarations of habitual offender status. Finding her conviction suffered from neither error, we affirm.

I.

After her third drunk driving conviction in 1996, Lilly was civilly declared an habitual offender. Her driver's license was revoked indefinitely as a result. Undeterred, Lilly continued to drive illegally and was convicted in September 2003 for driving as an habitual offender. Lilly was caught driving again in July 2004. The Commonwealth indicted Lilly for driving after having been declared an habitual offender (second or subsequent offense) triggering the mandatory minimum sentence of one-year incarceration pursuant to Code § 46.2-357(B)(3).

At trial, Lilly attacked the habitual offender statute as unconstitutional on various grounds. The 1999 partial repeal of the habitual offender statute, Lilly argued, violates (i) the equal protection and due process provisions of the Fourteenth Amendment to the United States Constitution, and (ii) the special laws prohibitions of §§ 14-15 of Article IV of the Virginia Constitution. Lilly also claimed the right to comment upon, present testimony concerning, and receive jury instructions about, the mandatory minimum sentence required by the habitual offender statute, Code § 46.2-357, and the legislative discontinuance of further civil habitual offender declarations. Finding none of these arguments persuasive, the trial court entered final judgment confirming the jury's guilty verdict. Similarly unpersuaded, we affirm Lilly's conviction.

II.

A. THE CONSTITUTIONALITY OF THE 1999 PARTIAL REPEAL OF THE HABITUAL OFFENDER STATUTE

Statutory History. The General Assembly enacted Virginia's first vehicular habitual offender statute in 1968. See former Code §§ 46.1-387.1 to 46.1-387.12 (Supp. 1968) (1968 Va. Acts, ch. 476). Its purpose was to "promote highway safety by denying the privilege of operating motor vehicles to those persons `who by their conduct and record' have demonstrated their lack of concern for the safety of others and their disrespect for law and authority." Davis v. Commonwealth, 219 Va. 808, 812, 252 S.E.2d 299, 301 (1979) (quoting former Code § 46.1-387.1); see also Varga v. Commonwealth, 260 Va. 547, 552, 536 S.E.2d 711, 714 (2000).

The habitual offender statute served as a civil recidivist provision mandating revocation of a driver's license upon conviction of a certain number of predicate driving offenses. The statute also created a criminal offense of driving after being declared an habitual offender. See Code § 46.2-357 (formerly Code § 46.1-387.8 (1968 Va. Acts, ch. 476)). Over the years, the General Assembly amended the habitual offender statute several times — sometimes including new predicate offenses, sometimes excluding prior ones.¹

Effective July 1, 1999, the General Assembly repealed the then-current method of declaring a driver to be an habitual offender. Under that process, the Division of Motor Vehicles would make such a declaration in a civil administrative proceeding subject to judicial review. The General Assembly, however, did not repeal the criminal provision prohibiting previously declared habitual offenders from driving. See 1999 Va. Acts, chs. 945, 987; see generally Varga, 260 Va. at 549 n. 1, 536 S.E.2d at 712 n. 1 (noting "the status of persons declared habitual offenders prior to [1999] was not affected by the repeal").

Following the partial repeal, an habitual offender's first violation generally receives a misdemeanor conviction carrying a mandatory minimum sentence of ten days in jail. See Code § 46.2-357(B)(1). An habitual offender caught driving in an unsafe manner, or while intoxicated (if previously convicted as a drunk driver), generally receives a felony conviction carrying a mandatory minimum sentence of one year. See Code § 46.2-357(B)(2). The same one-year mandatory minimum sentence is imposed on any recidivist who, like Lilly, has been previously convicted of driving as an habitual offender. See Code § 46.2-357(B)(3).

To punish future recidivist drivers who had not been declared habitual offenders under the pre-1999 system, the General Assembly chose to rely on mandatory minimum punishments tailored to specific predicate offenses at the offender's criminal trial rather than continue the cumbersome civil declaration process. See, e.g., Code §§ 18.2-36.1, 18.2-51.4, 18.2-270, 46.2-391. The 1999 partial repeal reformed the treatment of recidivist drivers to continue recognizing the public safety threat deemed to exist with drivers previously declared habitual offenders, while simultaneously ensuring that offenders later found to be recidivists received enhanced penalties roughly proportionate to that of declared habitual offenders.

Equal Protection & Due Process. Lilly argues the 1999 partial repeal created an unconstitutional anomaly by dividing recidivist drivers into two categories: those declared habitual offenders prior to July 1, 1999 (thus subject to conviction and penalties for driving while in that status) and those who commit certain recidivist driving offenses on or after July 1, 1999 (thus subject only to specific recidivism penalties of the underlying offenses). Offenders in the first group, Lilly points out, receive mandatory minimum sentences under Code § 46.2-357, while offenders in the second group are subject to a range of sentencing options. Lilly argues this disparity violates the equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution and the special laws prohibitions of the Virginia Constitution.

As always, we "begin our analysis with basic principles of judicial review. All legislative acts are `presumed to be constitutional.'" Boyd v. County of Henrico, 42 Va.App. 495, 506, 592 S.E.2d 768, 774 (2004) (en banc) (quoting In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003)). "This presumption is `one of the strongest known to the law.'" Id. at 507, 592 S.E.2d at 774 (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594, 598 (1959)). "Under it, courts must `resolve any reasonable doubt' regarding the constitutionality of a law in favor of its validity." Id. (citations omitted). "To doubt is to affirm." Id. (quoting Peery v. Bd. of Funeral Dirs., 203 Va. 161, 165, 123 S.E.2d 94, 97 (1961) (quoting City of Roanoke v. Elliott, 123 Va. 393, 406, 96 S.E. 819, 824 (1918))).

These principles of judicial restraint apply with particular force in cases where, as here, the litigant cannot claim membership in any insular and discreet suspect class or assert a violation of any fundamental right. In such cases, the Fourteenth Amendment's equal protection and due process clauses invalidate only those laws that offend principles of minimum rationality. Minimum rationality requires only that "a rational relationship exists between the disparity of treatment and some legitimate governmental purpose," and classifications reviewed under it are "accorded a strong presumption of validity." Gray v. Commonwealth, 274 Va. 290, 308, 645 S.E.2d 448, 459 (2007) (citations omitted).

Under the minimum rationality standard, the General Assembly need not "actually articulate at any time the purpose or rationale supporting its classification." Id. (citations omitted). To be sure, the legislative classification "must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id. (citations omitted). Courts cannot subject a reasonably hypothesized state of facts to the crucible of "courtroom factfinding" and must even accept "rational speculation unsupported by evidence or empirical data." Id. at 309, 645 S.E.2d at 460 (citations omitted). And the Commonwealth "has no obligation to produce evidence to sustain the rationality" of the challenged classification because the "burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." Id. at 308-09, 645 S.E.2d at 460 (citations omitted).

Applying this standard, we find the current habitual offender statute free of any constitutional infirmity under the equal protection and due process clauses of the Fourteenth Amendment.² The only conceptual disparity identified by Lilly involves treating recidivist drivers declared habitual offenders prior to July 1, 1999, differently than drivers convicted of recidivist offenses on or after July 1, 1999. The 1999 partial repeal, she asserts, created "a situation where two people identically situated — but for time — are treated entirely differently with no discernible state purpose." Appellant's Br. at 4.

The underlying premise of Lilly's argument is little more than a broadside, albeit unintended, against any sequential changes in recidivism laws that distinguish between predicate offenses committed before and recidivist offenses committed after each statutory change. Under Lilly's approach, no substantive amendments could ever be enacted to recidivism statutes because such amendments would, of necessity, divide offenders into...