Present: All the Justices
NEHEMIAH THOMAS, JR.
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 971730 June 5, 1998
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal focuses upon the General Assembly’s use of the
words “conviction” and “offense” in the statutes dealing with the
operation of motor vehicles by habitual offenders.
Code § 46.2-351 defines an habitual offender as any person who
has accumulated the required number of multiple convictions for
separate offenses relating to operation of motor vehicles. Code
§ 46.2-355 authorizes revocation of an habitual offender’s driving
privileges.
Code § 46.2-357(A) provides, “It shall be unlawful for any
person to drive any motor vehicle . . . on the highways of the
Commonwealth while the revocation of the person’s driving privilege
remains in effect.” Code § 46.2-357(B)(1) provides that if an
habitual offender is convicted of driving a motor vehicle while the
revocation determination is in effect the person shall be guilty of
a misdemeanor, under certain circumstances.
Code § 46.2-357(B)(3), the basis of the present dispute,
provides, “If the offense of driving while a determination as an
habitual offender is in effect is a second or subsequent such
offense,” the person shall be guilty of a felony and punished as set
forth in another portion of the statute.
The main issue in this appeal is whether § 46.2-357(B)(3)
subjects a defendant to the specified enhanced punishment for a
subsequent offense if, at the time of commission of that offense,
the defendant has not been convicted of the earlier offense.
On August 9, 1996, defendant Nehemiah Thomas, Jr., was
convicted after a bench trial in the Circuit Court of the City of
Lynchburg of the felony of driving after having been adjudicated an
habitual offender, second offense. He was sentenced to confinement
in the penitentiary for one year. After the Court of Appeals
affirmed the conviction, Thomas v. Commonwealth, 25 Va. App. 256,
487 S.E.2d 289 (1997), we awarded defendant this appeal.
The facts are undisputed; the chronology is important. On
April 5, 1995, the circuit court adjudicated defendant an habitual
offender. On August 30, 1995, defendant was charged with driving
after having been declared an habitual offender, but he was not
convicted of that offense until March 19, 1996.
On February 11, 1996, defendant was apprehended following his
operation of a motor vehicle on the streets of Lynchburg. Following
indictment for a felony violation of § 46.2-357, the defendant was
tried in the circuit court in June 1996. At trial, he admitted to
commission of the crime. Defendant argued, however, that he had
been charged improperly with a felony because he had not been
2
convicted of the August 1995 first offense when he committed the
second offense in February 1996.
Affirming defendant’s conviction, the Court of Appeals said:
“Code § 46.2-357(B)(3) establishes that a second ‘offense’ is
punishable as a felony. The statute does not require that for a
first offense to be cognizable as such, it must not only occur prior
to the second offense, but also result in conviction prior to the
occurrence of the second offense.” 25 Va. App. at 260, 487 S.E.2d
at 291. We agree.
Initially, we reject defendant’s contention that the Court of
Appeals erred by refusing to find that the language “second or
subsequent such offense” in Code § 46.2-357(B)(3) is
unconstitutionally vague and ambiguous. “A penal statute is void
for vagueness if it fails to give a person of ordinary intelligence
notice that his contemplated conduct is forbidden by the statute and
if the enactment encourages selective law enforcement.” Woodfin v.
Commonwealth, 236 Va. 89, 92, 372 S.E.2d 377, 379 (1988), cert.
denied, 490 U.S. 1009 (1989).
In the context of the habitual offender statutes, there is
nothing uncertain or ambiguous about the phrase “second or
subsequent such offense” when applied to defendant’s conduct. As
the Court of Appeals said, the meaning of the statute “is clear on
its face. A person of ordinary intelligence would understand that
any second or subsequent driving in violation of Code § 46.2-357
3
would make him eligible for the enhanced punishment provision,
whether or not he had been convicted of the earlier offense before
the occurrence of the second driving offense.” 25 Va. App. at 260,
487 S.E.2d at 291.
Additionally, because the statutory language is free of
ambiguity, the Court of Appeals correctly rejected defendant’s
reliance upon proffered legislative history to construe the
language. When, as here, the language is clear, settled rules of
statutory construction do not permit resort to legislative history
because courts take the words as written to determine their meaning.
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985).
Turning to the focus of this appeal, we hold that the General
Assembly’s choice of the word “offense” in § 46.2-357(B)(3), rather
than the word “conviction,” clearly demonstrates an intent to
authorize punishment enhancement without a prior conviction.
Plainly, the purpose of § 46.2-357 is to deter criminal conduct
by punishing those who repeatedly drive after having been declared
an habitual offender, rather than to reform habitual offenders. See
Ansell v. Commonwealth, 219 Va. 759, 762-63, 250 S.E.2d 760, 762
(1979); Mason v. Commonwealth, 16 Va. App. 260, 262-63, 430 S.E.2d
543, 543-44 (1993). If the defendant’s interpretation of the
statute were adopted, an offender could commit multiple unlawful
acts of driving without fear of being punished for a felony merely
because the offender could not be tried and convicted quickly enough
4
between offenses. An interpretation of the statute that allows a
defendant to violate it with impunity would be contrary to the clear
legislative intent. See Ansell, 219 Va. at 763, 250 S.E.2d at 763;
Mason, 16 Va. App. at 263, 430 S.E.2d at 544.
Finally, defendant argues the Court of Appeals erred in
affirming the trial court’s action allowing the indictment to be
amended. We do not agree with defendant.
The indictment charged that defendant “unlawfully, feloniously
and after having been declared an habitual offender” operated a
motor vehicle, “said person having been once or more previously
convicted and sentenced for a like offense, in violation of Virginia
Code § 46.2-357.” After the trial, but before the defendant was
found guilty, the court granted the Commonwealth’s motion to amend
the indictment to read that defendant operated a motor vehicle as an
habitual offender, “being a second or subsequent offense, in
violation of Virginia Code section 46.2-357.”
Code § 19.2-231 permits amendment of an indictment for any
defect in form or for any variance between the allegations and proof
“at any time before . . . the court finds the accused guilty or not
guilty, provided the amendment does not change the nature or
character of the offense charged.” The Court of Appeals correctly
ruled that the amendment did not change the nature or character of
the offense charged, stating, “The amended indictment charged Thomas
under the same code section and alleged the same actions in
5
substantiation of the charge. The changes effected by the amendment
were semantic in nature and did not substantively alter the charge
against Thomas.” 25 Va. App. at 262, 487 S.E.2d at 292.
Consequently, the judgment of the Court of Appeals will be
Affirmed.
6