16 May 2004

Virginia Court of Appeals

Williams v. Commonwealth - Subject: Element of a crime and the lack of a remedy if it is not proven

The Defendant was convicted of 16 felonies and, several years later, he registers to vote in Virginia. He checks a box which states he has never been convicted of a felony (one cannot vote in Virginia with a felony conviction). Clearly there is both a lie and an intention to lie. At no point was evidence introduced showing that the registration document informs him of the penalty for doing this. Argument boils down to whether this technicality voids a conviction under the statute:
§ 24.2-1016. False statements; penalties.

Any willfully false material statement or entry made by any person in any statement, form, or report required by this title shall constitute the crime of election fraud and be punishable as a Class 5 felony. Any preprinted statement, form, or report shall include a statement of such unlawful conduct and the penalty provided in this section.
The second sentence would seem to clearly make the conviction untenable. If the Court follows the standard and most widely followed statutory construction tool of reading the statute as a whole it must overrule the conviction. If the Court follows perhaps the oldest criminal law statutory construction rule, the rule of lenity (in Va : if there is any ambiguity the statute must be construed strictly against the Commonwealth), it will have to overturn the conviction. The Court usually gets around this rule by claiming to find Legislative intent; however, I have never seen any sort of Legislative history quoted or even cited when they do so. In this case Legislative intent would seem not to offer a safe port because the inclusion of the second sentence shows a clear intent on the part of the Legislature that a citizen must be specifically informed of the crime and its potential punishments before he can commit it and be held to account for his actions.

Faced with the conundrum of an obviously guilty Defendant and a statute which does not support the conviction, the Court chooses another path. It changes § 24.2-1016 from a single statute into two statutes and renders the second statute/sentence meaningless. Because the Legislature did not state specifically that the second sentence of the same paragraph, of the same statute, all under the title "False statements; penalties" was meant to have anything to do with convicting someone of false statements it therefore does not. As well, that "shall" language in the second sentence is merely directory and not mandatory; in other words, it is a right without a remedy (RWR). RWR's are not rare matters in Virginia's criminal law; RWR situations often occur when police violate the laws in order to get evidence or an arrest but do not go so far that federal constitutional protections are triggered. Under this interpretation, the fact that the Legislature did not provide a remedy means this section of the law can never be enforced. Curiously, the fact that the Legislature does not give a remedy if the prosecution does not prove an element found in the first sentence statute does not give the Court pause. Of course, no one has to state that the remedy in that case would be dismissal. However, it is assumed - just as a reading of the entire section as one statute would probably lead to the same assumption rising from the element of proof in the second sentence. HC,BL

No comments: