COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Kelsey and McClanahan
Argued at Richmond, Virginia
ELSIE LORRAINE LILLY
OPINION BY
v. Record No. 1635-05-4 JUDGE D. ARTHUR KELSEY
JULY 31, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
John R. Cullen, Judge
Michael R. Zervas (Bradley Law Firm, P.C., on brief), for
appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
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 Her driver’s license was revoked indefinitely as a result.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
-2-
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
1
See former Code §§ 46.2-351(1)(b) (1997 Va. Acts, ch. 691); 46.2-351(1)(a) (1993 Va.
Acts, ch. 291); 46.2-351(1)(c) (1992 Va. Acts, ch. 875); 46.2-351(1)(b) (1989 Va. Acts, chs. 705,
727); 46.1-387.2(a)(3) (1974 Va. Acts, ch. 53); 46.1-387.2(a)(5) (1970 Va. Acts, chs. 507, 724).
-3-
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.
-4-
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.
2
In cases challenging disparities in statutory criminal penalties, “an argument based on
equal protection essentially duplicates an argument based on due process.” Chapman v. United
States, 500 U.S. 453, 465 (1991). As a result, we need not separate the concepts for purposes of
addressing Lilly’s argument in this case.
-5-
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 before and after categories.
See generally McIntosh v. Commonwealth, 213 Va. 330, 330-33, 191 S.E.2d 791, 792-94
(1972); Salama v. Commonwealth, 8 Va. App. 320, 321-24, 380 S.E.2d 433, 434-35 (1989). To
be sure, consistent with Lilly’s argument, it could just as well be said that all statutory changes
are irrational because they treat people differently on no other basis than the fortuity of time.
Lilly disclaims these logical extensions of her argument, focusing instead on the more
discrete disparity existing between drivers declared to be habitual offenders prior to 1999 and
those not declared habitual offenders but who committed the same offenses on or after 1999.
Even if we allow Lilly this conceptual limitation on her argument, no constitutional infirmity
arises. The distinction drawn by the General Assembly rationally balances the need to reform
the cumbersome civil administrative process of declaring a driver to be an habitual offender with
the corresponding need to retain the benefits of the old system. The going-forward strategy of
the 1999 amendments more tightly calibrated future recidivism punishments to underlying
offenses. The compromise also avoided the possibility of ex post facto concerns that might arise
if drivers declared habitual offenders before 1999 were later reclassified under specific
recidivism statutes authorizing a different range of punishments than the mandatory minimums
always required by Code § 46.2-357.
True, the ultimate balance of these competing concerns produced an asymmetry of sorts.
But as long as a legislative classification “has some ‘reasonable basis,’ it does not offend the
Constitution simply because the classification ‘is not with mathematical nicety or because in
-6-
practice it results in some inequality.’” Dandridge v. Williams, 397 U.S. 471, 485 (1970)
(citation omitted). “The problems of government,” after all, “are practical ones and may justify,
if they do not require, rough accommodations” that necessarily defy perfect or, for that matter,
considerably less-than-perfect, legal symmetries. Id. Our judicial role “is only to ascertain that a
rational basis exists for the challenged distinction, not whether it is the best or only choice.”
Gray, 274 Va. at 311, 644 S.E.2d at 461. That conclusion is all the more true in cases, like this
one, involving legislative “specification of punishments” — matters ordinarily understood as
“peculiarly questions of legislative policy.” Id. (quoting Gregg v. Georgia, 428 U.S. 153, 175-76
(1976) (citations omitted)).
Virginia Constitution. The corresponding provisions of the Virginia Constitution go no
further than their federal counterparts. “We have ‘consistently held that the protections afforded
under the Virginia Constitution are co-extensive with those in the United States Constitution.’”
Rowley v. Commonwealth, 48 Va. App. 181, 187 n.2, 629 S.E.2d 188, 191 n.2 (2006) (citations
omitted). The federal equal protection and due process principles, therefore, subsume any
analysis of parallel provisions in the Virginia Constitution.
Equally so, the prohibitions against “special, private, or local law” found in Article IV,
§§ 14-15, of the Virginia Constitution add nothing to the minimum rationality test employed by
longstanding due process and equal protection doctrines. Virginia courts “apply the so-called
‘rational basis’ test” when testing the constitutionality of legislation “under due process, equal
protection, and special legislation provisions.” Willis v. Mullett, 263 Va. 653, 659, 561 S.E.2d
705, 709 (2002) (emphasis added). “The constitutional provisions prohibiting special legislation
do not proscribe classifications.” Jefferson Green Unit Owners Ass’n v. Gwinn, 262 Va. 449,
459, 551 S.E.2d 339, 344 (2001) (citation omitted). Instead, the special laws prohibitions
recognize “the necessity for and the reasonableness of classification are primarily questions for
-7-
the legislature. If any state of facts can be reasonably conceived, that would sustain it, that state
of facts at the time the law was enacted must be assumed.” Id. at 459, 551 S.E.2d at 345
(citations omitted). To prevail, the challenger must prove the classification to be without a
“reasonable basis” and “essentially arbitrary,” id. (citation omitted) — a burden of proof Lilly
cannot shoulder in this case. 3
B. DISCUSSING THE MANDATORY MINIMUM SENTENCE
AND 1999 PARTIAL REPEAL DURING THE GUILT PHASE
Lilly also claims the trial court denied her an impartial “jury of her peers” in violation of
both the United States and Virginia Constitutions. See U.S. Const. amend. XI; Va. Const. art. I,
§ 8. At the time they found her guilty, Lilly reasons, the jurors did not know of the mandatory
minimum sentences required by the habitual offender statute. Nor did they know that the 1999
partial repeal limited future prosecutions under the statute only to those drivers who were
declared habitual offenders prior to July 1, 1999. We reject both arguments because, by raising
matters having nothing to do with Lilly’s criminal culpability, they amount to little more than an
effort at inviting jury nullification on the issue of guilt.
A juror’s sworn obligation is to follow the law, not question it. While we are not naïve
enough to think jury nullification never occurs (it “undoubtedly” does in some cases, Walls v.
Commonwealth, 38 Va. App. 273, 282, 563 S.E.2d 384, 388 (2002)), no principle of
constitutional import entitles “a party to encourage such behavior,” id., or to even imply its
3
See also Pulliam v. Coastal Emergency Servs., Inc., 257 Va. 1, 18-19, 509 S.E.2d 307,
317 (1999) (explaining that, under the special laws prohibitions, “the necessity for and the
reasonableness of classification are primarily questions for the legislature. If any state of facts
can be reasonably conceived . . . that would sustain it, that state of facts at the time the law was
enacted must be assumed.” (citation omitted)); Newport News v. Elizabeth City County, 189 Va.
825, 842, 55 S.E.2d 56, 65 (1949) (“If the statute applies throughout the State and to all persons
and property within the class specified and the classification is reasonable and not arbitrary, such
a statute is not special but general.” (citation omitted)).
-8-
legitimacy. Consequently, defendants cannot use voir dire,4 witness testimony,5 counsel’s
argument,6 or jury instructions to comment on legal propositions wholly unrelated to the specific
factual issues before the jury.7 When decoupled from specific factfinding issues, “abstract
propositions of law do little to help and much to mystify a jury.” Newton v. Commonwealth, 29
Va. App. 433, 458, 512 S.E.2d 846, 858 (1999) (citation omitted). Courts similarly reject efforts
by both prosecutors and defense counsel to inject issues of punishment into the guilt phase of a
jury trial.8 Lilly’s repeated attempts to do so in this case were correctly resisted by the trial
court.
Lilly further contends that the General Assembly has gone too far in its “quest for
sentencing control” by enacting mandatory minimum sentences that impermissibly remove “any
judicial consideration or evaluation of the matters historically considered by the courts.”
Appellant’s Br. at 12. She sees mandatory minimum sentences in general, like the habitual
4
See Smith v. Commonwealth, 40 Va. App. 595, 601, 580 S.E.2d 481, 484 (2003)
(“[V]oir dire should not provide an opportunity for the parties to express personal opinions or to
justify their theories regarding the case [and] . . . is not an opportunity for attorneys to testify or
argue to the jury.”); see, e.g., Commonwealth v. Hill, 264 Va. 315, 319, 568 S.E.2d 673, 675
(2002); LeVasseur v. Commonwealth, 225 Va. 564, 581, 304 S.E.2d 644, 653 (1983); Barrette v.
Commonwealth, 11 Va. App. 357, 361-62, 398 S.E.2d 695, 697 (1990).
5
See generally 1 McCormick on Evidence § 12, at 62-63 (Kenneth S. Broun ed., 6th ed.
2006) (stating witnesses are not allowed to comment on questions of law because at trial “there is
only one legal expert — the judge” (citation omitted)); Charles E. Friend, The Law of Evidence
in Virginia § 17-3, at 642 (6th ed. 2003); see, e.g., Robertson v. Commonwealth, 12 Va. App.
854, 856, 406 S.E.2d 417, 418 (1991).
6
See generally Ronald J. Bacigal, Virginia Criminal Procedure § 17:5, at 468 (2006); see,
e.g., Hutchins v. Commonwealth, 220 Va. 17, 20, 255 S.E.2d 459, 461 (1979).
7
See Marine Dev. Corp. v. Rodak, 225 Va. 137, 143, 300 S.E.2d 763, 767 (1983)
(recognizing jury instructions should not include “statements of abstract propositions entirely
extraneous to the issues” that must be decided by the jury because such statements “have a
tendency to confuse, rather than to clarify” the issues (citation omitted)).
8
See, e.g., Commonwealth v. Hill, 264 Va. 315, 319, 568 S.E.2d 673, 676 (2002); Ford
v. Commonwealth, 48 Va. App. 262, 270, 630 S.E.2d 332, 336 (2006); Walls, 38 Va. App. at
282, 563 S.E.2d at 388.
-9-
offender statute in particular, as violations of “due process” that should be judicially declared
invalid. Id.
Lilly’s appeal to tradition and history, however, unknowingly produces the opposite
conclusion. Truth be told, American juries historically exercised little, if any, discretionary
control over criminal sentences:
In the early days of the Republic, when imprisonment had only
recently emerged as an alternative to the death penalty,
confinement in public stocks, or whipping in the town square, the
period of incarceration was generally prescribed with specificity by
the legislature. Each crime had its defined punishment.
United States v. Grayson, 438 U.S. 41, 45 (1978); Chapman v. United States, 500 U.S. 453, 467
(1991) (noting “[d]eterminate sentences were found in this country’s penal codes from its
inception”). The historic norm for the jury was to determine only guilt or innocence, leaving the
court alone to fix the punishment consistent with legislatively mandated sentences. Later
statutory reforms produced wide sentencing ranges within which trial judges could exercise
individualized discretion. See Grayson, 438 U.S. at 45-46. Some states, like Virginia,
authorized juries to ascertain a specific felony sentence within the statutory range, subject to the
trial court’s power of suspension. See generally Ronald J. Bacigal, Virginia Criminal Procedure
§§ 19:1, 19:5 (2006); John L. Costello, Virginia Criminal Law & Procedure § 63.3-2 (3d ed.
2002 & Supp. 2006).
The legislative development of the mandatory minimum sentence, however, produced a
floor below which no judge or jury could go. A trial court’s authority to depart downward below
a mandatory minimum is “nonexistent,” Mouberry v. Commonwealth, 39 Va. App. 576, 585,
575 S.E.2d 567, 571 (2003), because the legislative purpose was to divest trial judges and juries
of “all discretion” to sentence below the threshold minimum, In re Commonwealth of Virginia,
229 Va. 159, 163, 326 S.E.2d 695, 697 (1985). Given this history, we find no basis for Lilly’s
- 10 -
characterization of mandatory minimum sentences as a legislative usurpation of a historically
unique judicial function. Just the opposite is true: The development of mandatory minimum
sentences reflects the traditional legislative role in creating statewide uniformity, at least at the
lower end of the punishment scale, for all sentences for the specified crimes. This can hardly be
a due process violation, given that the General Assembly “has the power to define criminal
punishments without giving the courts any sentencing discretion.” Chapman, 500 U.S. at 467
(citing Ex parte United States, 242 U.S. 27, 41-42 (1916)).
III.
In sum, we reject Lilly’s constitutional challenges to the 1999 partial repeal of the
habitual offender statute and her claimed right to advise the jury during the guilt phase of her
trial about the partial repeal and the mandatory minimum sentence required by the statute. We
thus affirm her conviction for driving a vehicle after having been declared an habitual offender, a
second or subsequent offense, in violation of Code § 46.2-357(B)(3).
Affirmed.
- 11 -