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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