Moreno v. Baskerville
| Decision Date | 13 January 1995 |
| Docket Number | No. 940133,940133 |
| Citation | 249 Va. 16,452 S.E.2d 653 |
| Court | Virginia Supreme Court |
| Parties | Robert Anthony MORENO v. Alton BASKERVILLE, Warden, et al. Record |
Christopher J. Collins, Richmond, for appellant.
Robert Q. Harris, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellees.
Present: All the Justices.
In this habeas corpus appeal, we consider whether a Virginia circuit court had jurisdiction to try an accused for the crime of drug distribution committed in another state.
Appellant Robert Anthony Moreno was convicted in the court below in December 1992 of conspiracy to distribute more than five pounds of marijuana, Code § 18.2-256, and two counts of distribution of the same quantity of the drug, Code § 18.2-248.1(a)(3). He was sentenced to imprisonment for 15 years, with 13 suspended, for the conspiracy conviction and to imprisonment for 15 years, with 10 suspended, plus a $2,500.00 fine, for each of the distribution convictions. There was no appeal from the March 1993 judgment of conviction.
In June 1993, Moreno filed the present petition for a writ of habeas corpus naming the Warden of the Deep Meadow Correctional Center as a respondent. Alleging he was being unlawfully detained under the drug distribution convictions, Moreno asserted that the court below lacked jurisdiction because the evidence established that the two crimes occurred, not in Virginia, but in Arizona. Moreno does not contest the conspiracy conviction. See Zuniga v. Commonwealth, 7 Va.App. 523, 375 S.E.2d 381 (1988). Following a hearing at which the Attorney General appeared on behalf of the Warden, the habeas court denied and dismissed Moreno's petition. He appeals.
The facts are not in dispute. At the criminal trial, the evidence was presented in summary fashion by agreement. Moreno declined to plead to the charges, so he was tried on pleas of not guilty. Code § 19.2-259.
The charges involved the transfer of ten-pound bundles of marijuana from Arizona to Virginia for sale. Joseph Rosenbaum and Paul Serwitz were arrested in Henrico County with marijuana in their possession. They obtained the drug in bulk shipments, repackaged it for sale in small quantities, and sold it in Henrico County. Rosenbaum and Serwitz identified their supplier as one Frederick Moore of Tucson, Arizona. Moore, in turn, identified his source as Moreno, also of Tucson. Moreno's supplier was his uncle.
Moreno, following arrest in California, stated to the police that he had arranged for deliveries in Tucson to Moore and that he received $500.00 when Moore received payment for the drugs, which Moreno knew would be sent to Virginia. The marijuana was sent in monthly shipments of ten pounds each from December 1991 to August 1992. There was no evidence that Moreno was ever present in Virginia.
Urging an affirmance, the Attorney General argues on appeal that "although Moreno remained outside the boundaries of the Commonwealth, there is no doubt that he initiated the chain of distribution of marijuana to Virginia, knowing that the drugs were intended for ultimate distribution in Virginia, intending that the drugs be distributed in Virginia, and receiving his proceeds from Virginia after the successful distribution of marijuana in Virginia." The Attorney General contends, "At a minimum, Moreno was an accessory before the fact in the distribution that occurred in Henrico County." The Attorney General says that the evidence showed "a Henrico County distribution by Rosenbaum and Serwitz, and Moreno had provided encouragement, incitement and aid in committing the crime by reason of the repeated deliveries of marijuana on credit."
Finally, the Attorney General contends "Moreno's argument that the facts showed his conduct occurred only in Arizona and not Virginia challenges only the sufficiency of the evidence to prove the charge." Elaborating, the Attorney General says, "If Moreno had any question about the degree of his conduct in the distribution chain and whether his conduct would support his conviction in Virginia for distributing drugs, he had the opportunity to raise the issue at trial and on appeal," and he is precluded from raising such issue on habeas corpus. We do not agree with the Attorney General's contentions.
Virginia circuit courts have jurisdiction for the trial of indictments "for offenses committed within their respective circuits." Code § 19.2-239. "Every crime to be punished in Virginia must be committed in Virginia." Farewell v. Commonwealth, 167 Va. 475, 479, 189 S.E. 321, 323 (1937).
The several crimes of distribution of drugs by Moreno to Moore were discrete offenses, completed in Arizona. In Virginia, "distribute," as proscribed in Code §§ 18.2-248 and -248.1, means "to deliver other than by administering or dispensing a controlled substance." Code § 54.1-3401. "Deliver" means "the actual, constructive, or attempted transfer" of any controlled substance, "whether or not there exists an agency relationship," from one person to another. Id.; Wood v. Commonwealth, 214 Va. 97, 99, 197 S.E.2d 200, 202, appeal dismissed, 414 U.S. 1035, 94 S.Ct. 533, 38 L.Ed.2d 326 (1973). Ultimate receipt of payment for the distribution is not an element of the offense. The law of...
To continue reading
Request your trial
-
Jaynes v. Com.
...We also find that appellant's actions in sending the e-mails to AOL subscribers are sufficiently direct that Moreno v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995), on which appellant relies, does not apply. In Moreno, the defendant sold drugs in Arizona knowing that the buyer intended to......
-
Jaynes v. Com., Record No. 062388.
...over the routing of the e-mails, he argues his actions did not have an "immediate result" in Virginia, and under Moreno v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995), could not be the basis for jurisdiction over him by Virginia courts. Therefore, according to Jaynes, the circuit court h......
-
State v. Dudley
...matter jurisdiction over defendant's out-of-state conduct acquired where effect intended for the prosecuting state); Moreno v. Baskerville, 249 Va. 16, 452 S.E.2d 653 (1995) (addressing for the first time in a petition for habeas corpus the issue of whether Virginia had jurisdiction to pros......
-
E.C. v. Virginia Dep't of Juvenile Justice, Record No. 110523.
...S.E.2d 175, 177 (1965); Whitley v. Cunningham, 205 Va. 251, 258, 135 S.E.2d 823, 828–29 (1964). But cf., e.g., Moreno v. Baskerville, 249 Va. 16, 20, 452 S.E.2d 653, 655 (1995) (indictments for offenses dismissed in habeas proceeding). After consideration of our jurisprudence on mootness, a......
-
Territorial Jurisdiction in Ohio Post-Wogenstahl.
...to a distributor in Massachusetts because defendant did not know distributor was located in Massachusetts); Moreno v. Baskerville, 452 S.E.2d 653, 655 (Va. 1995) (holding jurisdiction not proper in Virginia over defendant who sold drugs to distributor in Arizona who then distributed it in V......