COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
AMANULLAH KAHALIQI, S/K/A
AMANULLAH KHALIQI
MEMORANDUM OPINION * BY
v. Record No. 1611-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 10, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
William D. Hamblen, Judge
William E. Hassan (Duvall, Harrigan, Hale &
Hassan, P.L.C., on briefs), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Amanullah Kahaliqui (appellant) pled guilty to intentionally
making a false report to a law-enforcement official with intent to
mislead, in violation of Virginia Code § 18.2-461. In this
collateral attack appellant contends that his conviction is void
because the indictment was insufficient to state a criminal act.
We disagree and affirm his conviction.
I.
Appellant was indicted for a violation of Code
§ 18.2-308.2:2, which makes it unlawful to willfully and
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
intentionally make a false statement on a form required to
purchase a firearm. On September 23, 1996, appellant appeared for
trial. The Commonwealth moved to amend the indictment 1 to read:
THE GRAND JURY for the 31st Judicial Circuit
comprising the County of Prince William and
the Cities of Manassas and Manassas Park,
charges that on or about December 16, 1995,
in the aforesaid Judicial Circuit, the
accused, AMANULLAH KAHALIQI, did willfully
and intentionally make a false report to a
law-enforcement official with intent to
mislead, in violation of Virginia Code
Section 18.2-461.
(Emphasis added). The trial court inquired of appellant's
counsel, "you have no objection to the proposed amendment[?]"
Appellant's counsel responded, "Not at all, Your Honor." The
trial court granted the Commonwealth's motion to amend the
indictment.
Appellant was arraigned and pled guilty after consulting with
counsel. The trial court determined that "the defendant fully
understood the nature and effect of said plea and of the penalties
that may be imposed upon a conviction . . . and determined that
1
The original indictment read:
THE GRAND JURY for the 31st Judicial
Circuit, comprising the County of Prince
William and the Cities of Manassas and
Manassas Park, charge that on or about
December 16, 1995, in the aforesaid Judicial
Circuit, the accused, AMANULLAH KAHALIQI,
did willfully and intentionally make a false
statement on the consent form required to
purchase a firearm, in violation of Virginia
Code Section 18.2-308.2:2.
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the plea of GUILTY was given voluntarily." The trial court found
appellant guilty and sentenced him in accord with a recommendation
by the Commonwealth.
On April 6, 2000, appellant filed a Motion to Vacate and
Dismiss the conviction, alleging that the trial court lacked
subject matter jurisdiction because the amended indictment failed
to state a crime. The trial court found appellant's "motion
utterly void of any legal merit."
II.
The sole issue raised in this appeal is whether the
appellant can now collaterally attack his conviction because the
amended indictment failed to state an offense. The indictment
at issue stated that appellant "did willfully and intentionally
make a false report to a law-enforcement official with intent to
mislead, in violation of Virginia Code Section 18.2-461." The
applicable statutory section provides that "[i]t shall be unlawful
for any person (i) to knowingly give a false report as to the
commission of any crime to any law-enforcement official with
intent to mislead." Code § 18.2-461 (emphasis added). Thus,
appellant contends the indictment failed to charge that the false
report concerned the commission of a crime.
"Judgment in any criminal case shall not be arrested or
reversed upon any exception or objection made after a verdict to
the indictment or other accusation, unless it be so defective as
to be in violation of the Constitution." Code § 19.2-227
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(emphasis added). Thus, if the trial court "had jurisdiction of
the person and the crime charged, and if the punishment imposed
is of the character prescribed by law, a writ of habeas corpus
does not lie . . . for mere irregularities or insufficiency of
an indictment no matter how vulnerable to direct attack on
motion to quash." Council v. Smyth, 201 Va. 135, 139, 109
S.E.2d 116, 119-20 (1959). "As long as the indictments were not
so defective so as to deprive the court of jurisdiction to
render the judgments of conviction, a petitioner may not
collaterally attack the sufficiency of the indictments." Abney
v. Warden, Mecklenburg Correctional Center, 1 Va. App. 26, 29,
332 S.E.2d 802, 804 (1985). Appellant cannot use a collateral
attack "as a substitute for an appeal or writ of error when the
time for appeal from the judgment of conviction has long since
passed." Council, 201 Va. at 140, 109 S.E.2d at 120.
The function of an indictment is "to give an accused notice
of the nature and character of the accusations against him in
order that he can adequately prepare to defend" himself. Willis
v. Commonwealth, 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409
(1990) (citations omitted). Therefore, Code § 19.2-220 requires
an indictment to be a "plain, concise, and definite written
statement . . . describing the offense charged." The indictment
must describe as much of the offence "as is sufficient to advise
[the accused] what offense is charged." Code § 19.2-220. Rule
3A:6(a) requires "the indictment or information, in describing
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the offense charged, shall cite the statute or ordinance that
defines the offense."
Appellant contends that Wilder v. Commonwealth, 217 Va.
145, 225 S.E.2d 411 (1976), 2 controls the outcome of this case.
In Wilder the statutory section under which defendant was
charged dealt with "the acts of Taking a credit card, Obtaining
a credit card, Withholding a credit card, and Receiving a credit
card" while the "challenged indictment charged defendant with
'possession' of stolen credit cards." Wilder, 217 Va. at 147,
225 S.E.2d at 413. The Supreme Court explained, "in the context
of subsection (a) possession is not synonymous with taking,
obtaining, withholding, or receiving. While possession may
Result from any of the foregoing acts, the subsection deals with
the Manner in which possession is acquired and not with
possession alone." Id. Therefore, the court held that "a
charge of mere possession of a stolen credit card is not
sufficient to state the offense of credit card theft under
subsection (a)." Id. Nor could the reference to the statute
save the indictment because "such references support, but do not
replace, the 'definite written statement.'" Id. at 148, 225
S.E.2d at 413 (emphasis added).
2
We note that the indictment in Wilder was challenged on a
direct appeal whereas the indictment in the instant case is
being challenged in a collateral attack.
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In Wall Distributors, Inc. v. City of Newport News, 3 the
Supreme Court of Virginia distinguished Wilder from the
situation where an element of the crime was omitted from the
"definite written statement." In Wall, the indictment alleged
that defendant possessed with intent to sell obscene magazines
in violation of the local statute. However, the indictment did
not allege that defendant knowingly possessed the magazines as
required by the ordinance. The Court emphasized the indictment
in Wilder was invalid because "the statutes proscribed criminal
conduct different in kind from that charged in the indictment,"
therefore, the citation to the statute could not save the
indictment because it would require the citation to replace the
written statement and not simply support the statement. See
Wall, 228 Va. 358, 363, 323 S.E.2d 75, 77 (1984). However, in
Wall the Court stated that the required citation "is not mere
surplusage but is inextricably included as a definitive part of
the indictment[]." Id. at 363, 323 S.E.2d at 78. The Court
held that the "inference to be drawn from th[e] provision
[requiring a cite to the statute] is clear -- the incorporation
[into the indictment] by reference of a statute or ordinance is
3
We note that the indictment in Wall was also challenged on
a direct appeal whereas the indictment in the instant case is
being challenged in a collateral attack.
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4
contemplated." 228 Va. at 362, 323 S.E.2d at 77. Thus, the
"written statement[] gave information as to what offense was
being charged and incorporated by reference the complete
definition[, including the omitted element,] contained in the
ordinance." Wall, 228 Va. at 363, 323 S.E.2d at 78. In so
holding, the Court emphasized that unlike Wilder, "[t]here can
be no misunderstanding as to what the indictments charged.
Supported by reference to the ordinance, the indictments
satisfied the requirement of a definite written statement."
Wall, 228 Va. at 363, 323 S.E.2d at 77-78 (emphasis added).
Therefore, where the "definite written statement" and the
statutory citation charge the same crime, but an element is
4
Wall discusses Rule 3A:7(a). Rule 3A:7(a) was renumbered
and amended in 1984 to Rule 3A:6(a). However no substantive
changes regarding citation to the statute were made in amending
the Rule; both versions contain the same requirements regarding
citation to the statute.
Old Rule 3A:7(a) provided that: the indictment must
contain a statement "citing the statute or ordinance that
defines the offense or, if there is no defining statute or
ordinance, prescribes the punishment for the offense . . . .
Error in the citation of the statute or ordinance that defines
the offense or prescribes the punishment therefore, or omission
of the citation, shall not be ground for dismissal or for
reversal of a conviction, unless the court finds that the error
or omission prejudiced the accused I preparing his defense."
Rule 3A:6(a) provides: "The indictment or information, in
describing the offense charged, shall cite the statute or
ordinance that defines the offense or, if there is no defining
statute or ordinance, prescribes the punishment for the offense.
Error in the citation of the statute or ordinance that defines
the offense or prescribes the punishments therefore, or omission
of the citation, shall not be grounds for dismissal of an
indictment or information, or for reversal of a conviction,
unless the court finds that the error or omission prejudiced the
accused in preparing his defense."
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missing, the cite to the statute supports the "definite written
statement" by incorporating the complete definition of the
crime.
Additionally, an indictment lacking an element of the crime
charged is not void and relief will not lie if appellant did not
object to the indictment prior to the verdict if the appellant
was "fully aware of the 'cause and nature' of the offense for
which [he] was being tried and of which he was convicted."
McDougal v. Commonwealth, 212 Va. 547, 549, 186 S.E.2d 18, 20
(1972) (citing Forester v. Commonwealth, 210 Va. 764, 767, 173
S.E.2d 851, 854 (1970)) (indictment charging statutory burglary
failed to allege that entry was made in the nighttime did not
void the indictment). The instant case is distinguishable from
Wilder and similar to Wall. Unlike Wilder, the statute cited in
the indictment now before us proscribes criminal conduct of the
kind charged in the indictment. The written statement merely
neglected an element, as the indictment in Wall did. Thus, Wall
is more similar than Wilder to the instant case.
We find no merit in appellant's argument that the
indictment under which he pled guilty was so defective as to be
in violation of the Constitution. At trial, appellant did not
object to the Commonwealth's motion to amend the indictment from
a validly charged felony to the agreed misdemeanor under Code
§ 18.2-461. He pled guilty to making a false report to a
law-enforcement officer. The trial court determined that
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appellant "fully understood the nature and effect of said plea and
of the penalties that may be imposed upon a conviction."
Petitioner did not raise any question as to the validity of the
indictment until three years and four months after the trial court
found him guilty. While the indictment was not expertly drawn and
its language did not mirror exactly the language in the statute,
the language of the indictment was supported by the citation to
the code section which incorporated the statutory definition.
Thus, the indictment was sufficiently clear to give appellant
notice of the offense charged. The trial court had jurisdiction
of his person and the crime charged. His plea of guilty was to
making a false statement regarding the commission of a crime to a
law-enforcement officer, and his conviction was of that offense.
Appellant was fully aware of the nature of the offense for which
he was being tried and of which he was convicted. "Under such
circumstances, no constitutional right of the accused was
invaded." Smyth v. White, 195 Va. 169, 173, 77 S.E.2d 454, 456
(1953); see also Pettus v. Peyton, 207 Va. 906, 910, 153 S.E.2d
278, 281 (1967). Accordingly, we affirm appellant's conviction.
Affirmed.
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Amanullah Kahaliqi, s/k/a Amanullah Khaliqi v. CW
Combined Opinion