Ruplenas v. Com., s. 800594

• Decision Date: 06 March 1981
• Docket Number: Nos. 800594,800551 and 800910,s. 800594
• Citation: 221 Va. 972,275 S.E.2d 628
• Court: Virginia Supreme Court
• Parties: David RUPLENAS v. COMMONWEALTH of Virginia. Wayne TRUNFIO v. COMMONWEALTH of Virginia. Roy Lynwood HAIRSTON v. COMMONWEALTH of Virginia. Record

Page 628

275 S.E.2d 628

221 Va. 972

David RUPLENAS v. COMMONWEALTH of Virginia.

Wayne TRUNFIO v. COMMONWEALTH of Virginia.

Roy Lynwood HAIRSTON v. COMMONWEALTH of Virginia.

Record Nos. 800594, 800551 and 800910.

Supreme Court of Virginia.

March 6, 1981.

Robert C. Whitestone, Fairfax (Whitestone, Rodway, Phillips & Brent, P. C., Fairfax, on brief), for appellant in Record No. 800551.

Robert H. Anderson, III, Asst. Atty. Gen., (Marshall Coleman, Atty. Gen., on brief), for appellee, in Record Nos. 800551 and 800594.

John M. DiJoseph, Falls Church, for appellant in Record No. 800594.

J. Randolph Parker, Charlottesville (John C. Lowe, J. Lloyd Snook, III, Lowe & Gordon, Ltd., Tucker & Coles, P. C., Charlottesville, on brief), for appellant in Record No. 800910.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee, in Record No. 800910.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ. ¹

THOMPSON, Justice.

Preliminary Statement.

Each of these appeals from marijuana convictions involves a single issue, viz., whether the penalties provided by Code § 18.2-248.1 must be applied to offenses occurring prior to the effective date of the statute (July 1, 1979), when trial and sentencing occurred after the effective date. Although these cases were tried separately in the courts below, and the evidence was not identical, a construction of the same statutes is required to determine whether the respective trial courts correctly resolved the issues.

Trial Court Proceedings.

David Ruplenas (Ruplenas) was indicted on September 17, 1979, and charged with (1) possession of marijuana with intent to distribute and (2) distribution of marijuana. The offenses were alleged to have occurred on or about June 13, 1979. Ruplenas was tried before a jury on November 19, 1979, and was convicted of distribution of less than one-half ounce of marijuana in violation of Code § 18.2-248. ² The jury fixed Ruplenas's punishment at five years' imprisonment. By final order entered January 15, 1980, the trial court sentenced Ruplenas to five years' imprisonment with four years of the sentence suspended conditioned upon Ruplenas's good behavior.

Wayne R. Trunio (Trunfio) was indicted on May 21, 1979, and charged with (1) possession of marijuana with intent to distribute and (2) distribution of marijuana. The offenses were alleged to have occurred on or about February 16, 1979. Trunfio was tried without a jury on July 16, 1979, and the lower court found him guilty of distribution of less than one-half ounce of marijuana in violation of Code § 18.2-248. ³ On January 18, 1980, Trunfio was sentenced to serve five years' imprisonment. The sentence was suspended, and he was placed on probation for two years.

Roy L. Hairston (Hairston) was indicted in February, 1978, and charged with unlawfully and feloniously selling marijuana on or about November 23, 1977. The case was set for trial on March 13, 1978. After many continuances, some of which were requested by Hairston and some by the Commonwealth, Hairston was tried by a jury on December 11, 1979. The evidence, essentially undisputed, was that Hairston had sold 2.3 pounds of marijuana. The only significant issue at trial, whether the sale had been made as an accommodation, was rejected by the jury. The jury returned their verdict as follows: "We, the Jury, find the defendant guilty of a (sic) selling marijuana, as charged in the indictment, and fix his punishment at (5) years confinement in the penitentiary and a fine of $1.00." Judgment was entered on the verdict on February 18, 1980.

Statutory Provisions.

Prior to July 1, 1979, marijuana was a Schedule I controlled substance and penalties regarding its possession, sale, and other related offenses were contained in Code § 18.2-248. The 1979 General Assembly chose to treat marijuana offenses separate from other controlled-substance violations and accordingly added § 18.2-248.1 to the Code. ⁴ The three offenses which are the subjects of these appeals bring us to inquire whether Code § 18.2-248.1 should have been applied in regard to the defendants' sentencing where trials and final judgments occurred after the effective date of the mitigating statute.

Our guiding rule of construction is set forth in Code § 1-16 whose ancestor is Code 1849, Title 9, ch. 16, § 18. Code § 1-16 was an attempt to change the results enunciated in the cases of Commonwealth v. Leftwich, 26 Va. (5 Rand.) 657 (1827), Attoo v. Commonwealth, 4 Va. (2 Va.Cas.) 382 (1823), and Scutt v. Commonwealth, 4 Va. (2 Va.Cas.) 54 (1817). Code § 1-16 provides as follows:

§ 1-16. Repeal not to affect liabilities; mitigation of punishment. No new law shall be construed to repeal a former law, as to any offense committed against the former law, ... 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 any penalty, forfeiture, or punishment so incurred ... before the new law takes effect; ... and if any penalty, forfeiture, or punishment be mitigated by any provision of the new law, such provision may, with the consent of the party affected, be applied to any judgment pronounced after the new law takes effect. (Emphasis added.)

Specifically, we are concerned with the last clause of the statute as to mitigatory punishment. In the Trunfio and Ruplenas cases, the new statute changes the grade of the offenses in each instance from a felony to a Class 1 misdemeanor, and in the Hairston case the new statute changes the offense to a Class 5 felony.

As pertinent here, we have construed Code § 1-16 in at least two cases. In Conaway v. Commonwealth, 118 Va. 792, 88 S.E. 75 (1916), Conaway was alleged to have murdered her husband in January, 1914. At that time punishment for murder in the first degree was death. Prior to her July 1914 trial, the penalty statute was amended to change the penalty for first degree murder to death or life imprisonment. Although it is rare for a defendant to desire the application of a more severe penalty, Conaway objected to being tried under the new, mitigatory statute. Nevertheless, Conaway was arraigned and tried under the new statute, resulting in a verdict of guilty and the imposition of a life sentence. On appeal this court reversed, holding that under the provisions of Code § 6 (1887) (now Code § 1-16) the new, lesser penalty could not be applied without the consent of the defendant.

Sixty-one years later we decided Abdo v. Commonwealth, 218 Va. 473, 237 S.E.2d 900 (1977). Abdo was convicted on December 4, 1975, of manufacturing phencyclidine, a controlled substance, and punishment was fixed by a jury at twelve years in the penitentiary. On January 8, 1976, final judgment on the verdict was entered by the trial court, and Abdo subsequently petitioned this court for a writ of error. On July 1, 1976, while Abdo's petition for a writ of error was pending, the grade of the offense of manufacturing phencyclidine was changed to a Class 1 misdemeanor. On August 3, 1976, his petition for writ of error still pending, Abdo moved the trial court to reduce his penalty to that fixed for a Class 1 misdemeanor in accordance with the new statute. On September 29, 1976, the petition for writ of error was refused, and on October 1, 1976, the trial court denied Abdo's motion for a reduction of sentence. Abdo then sought and obtained a writ of error to the court's order denying a reduction of sentence.

We pointed out in Abdo that Code § 1-16 was a saving statute intended to change the common-law rule of abatement. ⁵ We said:

The election of the Commonwealth to prosecute under the new law, and the privilege of an accused to consent to be tried thereunder, must be exercised before judgment is pronounced. (Emphasis added.)

.... Defendant argued that Code § 1-16 mandated the trial court to mitigate his punishment in accordance with the provisions of the new law. The statute does not so provide. Further, the language of the statute is that the court may apply the provisions of the new law and the provision to be applied must be applied to a "judgment pronounced after the new law takes effect". No such judgment was ever pronounced in this case after the January 8, 1976 judgment.

218 Va. at 478, 237 S.E.2d at 903. The literal language of Abdo directs that before a new penalty may be imposed the Commonwealth must first elect to proceed under the new law and then the defendant, as the party affected, must consent to its application. Without the concurrence of both parties the previous penalty must apply.

The circumstances as set forth in Abdo do not precisely align with the cases at bar. In Abdo the new penalty did not...