THOMAS v. COMMONWEALTH
June 5, 1998
Record No. 971730
NEHEMIAH THOMAS, JR.
COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE A. CHRISTIAN COMPTON
FROM THE COURT OF APPEALS OF VIRGINIA
Present: All the Justices
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
Code Sec.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 Sec.46.2-355 authorizes revocation of an
habitual offender’s driving privileges.
Code Sec.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
Sec.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 Sec.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
Sec.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
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 Sec.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 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 Sec.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
Sec.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 Sec.46.2-357 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
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
Sec.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 Sec.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 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
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 Sec.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 Sec.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
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
Consequently, the judgment of the Court of Appeals will be