Herrera v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia

MARTIN HERRERA, JR.
OPINION BY
v. Record No. 0420-95-1 JUDGE ROSEMARIE ANNUNZIATA
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge

Lynndolyn T. Mitchell, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

Brian Wainger, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Thomas C. Daniel, Assistant Attorney General,
on brief), for appellee.

Following a jury trial in the Circuit Court of the City of

Virginia Beach conducted in January 1995, appellant, Martin

Herrera, Jr., was convicted of child neglect in violation of Code

§ 40.1-103. Herrera's opening brief on appeal, challenging the

trial court's refusal to instruct the jury on criminal

negligence, was received by the Clerk of this Court in November

1995. In October 1995, in an unrelated case, a panel of this

Court held portions of Code § 40.1-103 unconstitutionally vague.

See Commonwealth v. Carter, 21 Va. App. 150, 462 S.E.2d 582

(1995). Herrera failed to challenge the constitutionality of

Code § 40.1-103, both before the trial court and in his appellate

brief; he also failed to argue on appeal that we should apply the

holding in Carter to his case. Applying well established
principles concerning the retroactive application of new rules

for criminal prosecutions to cases pending on direct review, we

find that our decision in Carter deprived Herrera's trial court

of jurisdiction to convict him under Code § 40.1-103. Because

our decision in Carter implicates the jurisdiction of the trial

court, we find it well within our province to address the issue

sua sponte. For the reasons that follow, we reverse Herrera's

conviction on jurisdictional grounds. 1
I. RELEVANT FACTS

Herrera's indictment alleged that "while having custody of

[C.H.], a child then under the age of eighteen years, [Herrera]

did willfully or negligently cause or permit such child to be

placed in a situation that his life, health, or morals may be

endangered[, in violation of Code § 40.1-103] . . . ." 2 The jury
1
Accordingly, we decline to address Herrera's contention
that the trial court erred by refusing to instruct the jury on
criminal negligence.
2
Code § 40.1-103 provides, in part:

It shall be unlawful for any person . . .

having the custody of any child willfully or

negligently to cause or permit the life of

such child to be endangered or the health of

such child to be injured, or willfully or

negligently to cause or permit such child to

be placed in a situation that its life [or]

health . . . may be endangered . . . . Any

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convicted Herrera as charged, having found, as the trial court

instructed, that he "willfully or negligently caused or permitted

such child to be placed in a situation that its health or morals

may be endangered."

Subsequent to Herrera's conviction, while his case was

pending on direct review, a panel of this Court held that the

provision of Code § 40.1-103 declaring it a Class 6 felony "for

any person . . . having custody of any child . . . to . . .

willfully or negligently . . . cause or permit such child to be

placed in a situation that its life, health or morals may be

endangered" was unconstitutionally vague. Commonwealth v.

Carter, 21 Va. App. 150, 155, 462 S.E.2d 582, 585 (1995).

II. JURISDICTIONAL BAR

"A court lacks jurisdiction to enter a criminal judgment if

the judgment is predicated upon an unconstitutional or otherwise

invalid statute or ordinance." Fraser v. Commonwealth, 16 Va.

App. 775, 777, 433 S.E.2d 37, 38 (1993). See also Ex parte
Siebold, 100 U.S. 371, 376-77 (1879) ("An unconstitutional law is

void and is not law. An offense created by it is not a crime. A

conviction under it is not merely erroneous, but is illegal and

void, and cannot be a legal cause of imprisonment."); United

States v. Baucum, 80 F.3d 539, 540-41 (D.C. Cir. 1996) ("[O]nce a

(..continued)

person violating this section shall be guilty

of a Class 6 felony.

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statute has been declared unconstitutional, the . . . courts

thereafter have no jurisdiction over alleged violations (since

there is no valid `law . . .' to enforce) . . . .").

Following Carter, the courts of Virginia clearly lack

jurisdiction to convict an accused under the provisions of Code

§ 40.1-103 that Carter held to be unconstitutional. The

Commonwealth does not dispute this point. The question we face

here is whether that jurisdictional bar also extends to a

conviction obtained prior to the date of the Carter decision but
one which is still pending on direct review.

"[A] new rule for the conduct of criminal prosecutions is to

be applied retroactively to all cases, state or federal, pending

on direct review or not yet final, with no exception for cases in

which the new rule constitutes a `clear break' with the past."

Darnell v. Commonwealth, 12 Va. App. 948, 952, 408 S.E.2d 540,

542 (1991) (quoting Griffith v. Kentucky, 479 U.S. 314, 328

(1987)); Kelly v. Commonwealth, 8 Va. App. 359, 368, 382 S.E.2d

270, 275 (1989); Taitano v. Commonwealth, 4 Va. App. 342, 345
n.1, 358 S.E.2d 590, 591 n.1 (1987). The concept that judicial

decisions are to be applied retroactively "stems from the

Blackstonian view, that judges do not make law; they find law.

Judicial declaration of law is merely a statement of what the law

has always been." Cash v. Califano, 621 F.2d 626, 628 (4th Cir.

1980). Principles of equity applicable to the treatment of

defendants similarly situated compel the application of a new

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rule of law to cases still pending on direct review. See

Griffith, 479 U.S. at 713 ("[T]he integrity of judicial review

requires that we apply that rule to all similar cases pending on

direct review."). "[T]he problem with not applying new rules to

cases pending on direct review is `the actual inequity that

results when the Court chooses which of many similarly situated

defendants should be the chance beneficiary' of a new rule." Id.

(quoting United States v. Johnson, 457 U.S. 537, 556 n.16

(1982)).
In light of these principles, we find that the rule of

Carter, undoubtedly a "new rule" for prosecutions under Code

§ 40.1-103, should be applied retroactively to Herrera's case.

The provision of Code § 40.1-103 which this Court held

unconstitutionally void for vagueness in Carter is precisely the

provision on which Herrera was indicted, the jury was instructed,

and Herrera was ultimately convicted. By virtue of the

retroactive application of Carter, we hold that the trial court

lacked jurisdiction to convict Herrera.

III. PROCEDURAL BAR

The Commonwealth contends that even if the principles

governing the retroactive application of new rules for criminal

prosecution require that Carter be applied retroactively to a
case still pending on direct review, the rule of Carter should

not be applied retroactively to Herrera's case because Herrera

failed to preserve the issue. Indeed, Herrera failed to

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challenge the constitutionality of Code § 40.1-103, both before

the trial court and in his appellate brief; he also failed to

argue on appeal that we should apply the holding in Carter to his

case.

It is well accepted that a question of subject matter

jurisdiction can be raised sua sponte at any time. E.g., Garrett

v. Majied, 252 Va. 46, 48, 471 S.E.2d 479, 480 (1996). Likewise,

it is well established that the contemporaneous objection rule

may not be invoked to bar consideration of an appeal which

attacks the jurisdiction of the circuit court. E.g., Jones v.

Division of Child Support Enforcement, 19 Va. App. 184, 191, 450

S.E.2d 172, 177 (1994). Because the dispositive issue here is

one of jurisdiction, we hold that its determination is not

procedurally defaulted by Herrera's failure to raise it. 3

Our decision to apply the jurisdictional implications of

3
Contrary to the Commonwealth's contention, we do not
hold that a defendant may raise a facial challenge to the
constitutionality of a statute for the first time on appeal, on
the theory that doing so implicates a question of subject matter
jurisdiction. Nor does our decision require reviewing courts to
determine the constitutionality of a statute sua sponte in all
cases where the issue is not raised. The circumstances giving
rise to such concerns in Baucum, upon which the Commonwealth
relies, are not present here. Herrera does not ask us to rule on
the constitutionality of Code § 40.1-103 for the first time on
appeal, nor do we rule on the constitutional issue sua sponte.
Here, unlike in Baucum, the constitutional issue has been
resolved. Carter held the provisions of Code § 40.1-103, under
which Herrera was convicted, unconstitutional. The issue
addressed and resolved here is purely jurisdictional, and our
decision is consistent with well established principles regarding
the authority of the court to address matters of subject matter
jurisdiction sua sponte.

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Carter to Herrera's case is limited both by the procedural

posture of Herrera's case and by well established principles

concerning retroactive application of new rules for criminal

prosecutions. Contrary to the Commonwealth's concern regarding

the potential effect of our decision on concluded cases, the

retroactive application of Carter to a case pending on direct

review does not disturb well-settled principles of finality.

Rather, our decision effectuates the balance between finality and

fairness that the principles of retroactivity seek to establish.
While the provisions of the statute under which Herrera was

convicted were presumptively valid at the time of his trial, they

are conclusively unconstitutional now and were so before he filed

his appellate brief. We find that the principles applicable to

the jurisdiction of the trial court and the retroactive

application of new rules for criminal prosecutions as well as the

imperative demands of fairness and equity demand that Herrera's

conviction be reversed and dismissed.
Reversed and dismissed.

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