Montgomery v. Commonwealth

• Decision Date: 26 July 2022
• Docket Number: Record No. 1095-21-1
• Parties: James Jesus MONTGOMERY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 182

875 S.E.2d 101

James Jesus MONTGOMERY

v.COMMONWEALTH of Virginia

Record No. 1095-21-1

Court of Appeals of Virginia, Virginia Beach.

JULY 26, 2022

Charles E. Haden, Hampton, for appellant.

Robin M. Nagel, Assistant Attorney General (Jason S. Miyares, Attorney General, on briefs), for appellee.

Present: Judges Humphreys, Chaney and Lorish

OPINION BY JUDGE ROBERT J. HUMPHREYS

Following a conditional guilty plea for possession of marijuana with intent to distribute in violation of Code § 18.2-248.1, James Montgomery was sentenced in the City of Hampton Circuit Court to five years’ incarceration, with all five years suspended. Montgomery retained the right to appeal the circuit court's denial of a motion to suppress the marijuana seized from his vehicle during a traffic stop, which he now does. Montgomery argues that the circuit court erred by ruling that the statutory exclusionary rule found in former Code § 18.2-250.1(F) ’s prohibition on so-called "plain smell" marijuana searches did not apply to exclude the evidence found in the search of his vehicle.¹

I. Background

On an appeal of a circuit court's denial of a motion to suppress, this Court reviews the evidence in the light most favorable to the Commonwealth. Rivera v. Commonwealth , 65 Va. App. 379, 384, 778 S.E.2d 144 (2015). Because Montgomery entered a conditional guilty plea and there was no trial, the facts of the case are based on the parties’ uncontested proffers of evidence at the suppression hearing.²

On November 9, 2018, Detective Carpenter of the Hampton Police Division saw a black Honda Civic driving with its headlights on high beam, blinding oncoming traffic. Detective Carpenter stopped the vehicle and asked the driver, Montgomery, for his identification. Detective Carpenter smelled marijuana coming from the vehicle, and Montgomery appeared nervous. Due to the odor of marijuana, Detective Carpenter detained Montgomery and searched the car, finding a book bag containing what appeared to be marijuana.³ Montgomery was arrested and ultimately indicted by a grand jury on May 6, 2019, for one count of possession of marijuana with intent to distribute.

On November 9, 2020, the General Assembly amended Code § 18.2-250.1 by adding subsection F, effective March 1, 2021, outlawing searches based solely on the odor of marijuana. 2020 Va. Acts Sp. Sess. 1, ch. 51. Code § 18.2-250.1(F) stated as follows:

No law-enforcement officer, as defined in § 9.1-101, may lawfully stop, search, or seize any person, place, or thing solely on the basis of the odor of marijuana and no evidence discovered or obtained pursuant to a violation of this subsection, including evidence discovered or obtained with the person's consent, shall be admissible in any trial, hearing, or other proceeding.

Following the effective date of the amended Code § 18.2-250.1(F), Montgomery moved to suppress the marijuana obtained because of the "plain smell" search. Montgomery argued that the law "prohibits any prosecution where evidence is derived from the odor of marijuana." In his brief in support of this motion, Montgomery also argued that the changes to the law were procedural, thereby requiring that the changes "be retroactively applied to Law Enforcement [sic] during the search at issue."

On May 14, 2021, the circuit court conducted a suppression hearing on Montgomery's motion. The court took the matter under advisement and subsequently issued a ruling denying the motion because the amendments were substantive changes in the law and did not apply retroactively.⁴

Following the court's ruling, on July 23, 2021, Montgomery entered a conditional guilty plea under Code § 19.2-254 permitting him to appeal the circuit court's ruling on the motion to suppress. The circuit court sentenced Montgomery to five years’ incarceration, with all five years suspended. Montgomery now appeals the denial of the motion to suppress the evidence.

II. Analysis

Montgomery's assignment of error requires us to interpret the now repealed and recodified Code § 18.2-250.1(F) to determine whether it has retroactive effect to the search and seizure in his case. A circuit court's interpretation of a statute and its retroactive effect, or lack thereof, presents a question of law which this Court reviews de novo. Eberhardt v. Commonwealth , 74 Va. App. 23, 31, 866 S.E.2d 38 (2021) ; Sink v. Commonwealth , 28 Va. App. 655, 658, 507 S.E.2d 670 (1998). When construing statutes, the role of the judiciary is to discern the intent of the legislature as expressed through the plain meaning of the words of the statute. Blake v. Commonwealth , 288 Va. 375, 381, 764 S.E.2d 105 (2014).

A. Retroactivity Generally

A core principle of statutory interpretation is that "interpreting a law to apply retroactively is ‘not favored, and ... a statute is always construed to operate prospectively unless a contrary legislative intent is manifest.’ " McCarthy v. Commonwealth , 73 Va. App. 630, 647, 864 S.E.2d 577 (2021) (quoting Berner v. Mills , 265 Va. 408, 413, 579 S.E.2d 159 (2003) ); see also Booth v. Booth , 7 Va. App. 22, 26, 371 S.E.2d 569 (1988) ("[T]he general rule of statutory construction is that legislation only speaks prospectively."). "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." Shilling v. Commonwealth , 4 Va. App. 500, 507, 359 S.E.2d 311 (1987).

Virginia case law is clear that this presumption can be overcome in two ways. First, a statute may apply retroactively when the General Assembly uses explicit terms detailing the retroactive effect of the legislation. McCarthy , 73 Va. App. at 647, 864 S.E.2d 577.⁵ Second, where a law affects procedure only, instead of vested or substantive rights, the statute may "be given retroactive effect." Id. (quoting Sargent Elec. Co. v. Woodall , 228 Va. 419, 424, 323 S.E.2d 102 (1984) ). "A law affects substantive rights if it ‘deals with [the] creation of duties, rights, and obligations.’ " Id. at 650, 864 S.E.2d 577 (quoting Shiflet v. Eller , 228 Va. 115, 120, 319 S.E.2d 750 (1984) ). Alternatively, laws are procedural if they "prescribe[ ] methods of obtaining redress or enforcement of rights." Shiflet , 228 Va. at 120, 319 S.E.2d 750.

The appellate courts of the Commonwealth have used the word "retroactive" to describe two related, but significantly different, situations. First, courts have used the word "retroactive" to describe a situation where legislation "attaches new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods. , 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) ; see McCarthy , 73 Va. App. at 650-51, 864 S.E.2d 577 (declining to attach new legal consequences to a criminal defendant's actions relating to Code § 18.2-251.03 ’s overdose safe-harbor provision). Yet the Commonwealth's jurisprudence has also used the word "retroactive" to describe situations when a statute "is applied in a case arising from conduct antedating the statute's enactment, or upsets expectations based in prior law." Landgraf , 511 U.S. at 269, 114 S.Ct. 1483 (citation omitted). When courts say that a procedural law applies "retroactively," it is this second definition of "retroactive" that is meant.⁶ In other words, a purely procedural statutory change will apply prospectively to any procedure or process occurring after its effective date irrespective of when any cause of action or criminal offense may occur.⁷

For example, in Allen v. Mottley Construction Company , 160 Va. 875, 170 S.E. 412 (1933), the Virginia Supreme Court "retroactively" applied a shortened review period to a workers’ compensation claimant's right to review an award for changed circumstances. In that case, the claimant received a final payment of a workers’ compensation award on November 10, 1931. 160 Va. at 877, 170 S.E. 412. On June 21, 1932, legislation became effective that prohibited a claimant from seeking a review of the award amount after twelve months from the date of the last payment. Id. at 878-79, 170 S.E. 412. On February 21, 1933, the claimant sought review of his award amount claiming that he had suffered a change in condition.

Id. at 877, 170 S.E. 412. In applying the limitation period "retroactively" the Supreme Court simply held that the law at the time of the review was controlling, not the time of the original workplace injury. Id. at 889-90, 170 S.E. 412. The Supreme Court was not holding that a review held before the statute was untimely. In other words, the Supreme Court did not attach a new legal consequence to a review of an award timely under the old statute, but untimely under the new one. Instead, the Supreme Court simply applied the new limitation period in a case that arose from conduct antedating the statute's enactment.⁸

This substantive/procedural dichotomy and the so-called "retroactive" effect of procedural statutes has been codified in Code § 1-239, which reads:

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.

As Code §...