Common-law abatement no longer good law

Where a statute repealing Code § 18.2-250.1 (possession of marijuana) was enacted before appellant’s conviction, the common-law rule of abatement does not void his conviction. Virginia’s saving statute, Code § 1-239, controls the result in this case. The conviction is affirmed.

Under Code § 1-239, “when the General Assembly explicitly and unambiguously repeals a statute, that repeal shall not be ‘construed … in any way whatever to affect’ any offenses, acts, penalties, forfeitures, punishments, rights, or claims under the former law.”

Overview

On Nov. 4, 2020, appellant Artis was indicted for possession of marijuana with intent to distribute. The possession statute was repealed on April 7, 2021. Artis was convicted of the lesser-included offense of possession of marijuana after a two-day trial in November 2021.

“At sentencing before the trial judge, the Commonwealth introduced for the first time, without objection, evidence showing that Artis had a prior conviction for marijuana possession in April 2014.

“Over objection from defense counsel, the trial judge imposed an enhanced sentence of twelve months’ imprisonment and a $2,500 fine based on Artis’s prior marijuana possession conviction. This appeal followed.”

Analysis

The common-law rule of abatement “prohibited prosecution under the repealed statute, and the constitutional prohibition against ex post facto laws prohibited prosecution under the new harsher statute.”

Virginia’s saving statute, Code § 1-239, provides, “‘No new act of the General Assembly shall be construed to repeal a former law, as to any offense committed against the former law, or as to any act done, any penalty, forfeiture, or punishment incurred, or any right accrued, or claim arising under the former law, or in any way whatever to affect any such offense or act so committed or done, or any penalty, forfeiture, or punishment so incurred, or any right accrued, or claim arising before the new act of the General Assembly takes effect[.]’ …

“Artis contends that his conviction for marijuana possession under Code § 18.2-250.1 is void ab initio because this code section was repealed prior to his conviction. He asserts that Code § 1-239 does not apply when the General Assembly performs an absolute and unqualified repeal of a criminal statute that decriminalizes an offense and that this Court should instead apply the common-law rule of abatement[.] …

“In Artis’s view, this common-law rule has not been abrogated entirely by Code § 1-239 and still operates in Virginia for nontechnical abatement.

“Artis further argues that the phrase ‘construed to repeal’ in Code § 1-239 indicates that this code section applies only when it is ambiguous whether the General Assembly intended to repeal a statute. Since there is no ambiguity that the General Assembly intended to repeal Code § 18.2-250.1, Artis claims that Code § 1-239 does not apply to him.

We cannot agree.

Holdings

First, we hold that Code § 1-239 equally applies in circumstances where the General Assembly explicitly and unambiguously repeals a statute. The fatal flaw in Artis’s argument regarding ‘construed to repeal’ in Code § 1-239 is that it completely ignores the later phrase ‘in any way whatever to affect’ in the statute.

“Under a proper reading of Code § 1-239, the word ‘construed’ operates not only on ‘to repeal,’ but also operates on ‘in any way whatever to affect.’

“To read Code § 1-239 otherwise would cause the word ‘to’ in ‘in any way whatever to affect’ to be superfluous and would render that entire phrase grammatically incorrect. The phrase ‘in any way whatever to affect’ is also preceded by the disjunctive word ‘or,’ which signifies an alternative application for the word ‘construed’ in the statute.

“Thus, when the General Assembly explicitly and unambiguously repeals a statute, that repeal shall not be ‘construed … in any way whatever to affect’ any offenses, acts, penalties, forfeitures, punishments, rights, or claims under the former law.

“Second, we hold that Code § 1-239 equally applies in circumstances where the General Assembly performs an absolute and unqualified repeal of a criminal statute that decriminalizes an offense.

“The language in Code § 1-239 is broad and sweeping, encompassing every ‘new act of the General Assembly,’ and applying, among other things, to every ‘offense committed,’ every ‘act done,’ and every ‘claim arising’ under the former law. …

“Therefore, the General Assembly’s absolute and unqualified repeal of a criminal statute that decriminalizes an offense is not exempt from the requirements of Code § 1-239.

“Finally, we hold that Code § 1-239 has abrogated the common-law rule of abatement in its entirety. … There is no question that the General Assembly was aware of the common-law rule of abatement when it originally enacted the general saving statute, nor is there any question that the statute was specifically designed to combat the inherent problems associated with the common-law rule.”

Enhancement

“Artis asserts that the trial court’s imposition of an enhanced sentence of twelve months’ imprisonment and a $2,500 fine is void ab initio because his indictment did not charge him with a second or subsequent offense under Code § 18.2-250.1, nor did the Commonwealth prove his prior marijuana possession conviction at trial to the jury.

“In response, the Commonwealth contends that Artis’s prior marijuana conviction was a ‘sentencing aggravator’ that was not required to be charged in his indictment or proven to the jury.

“In Pierce v. Commonwealth, 2 Va. App. 383, 386 (1986), we specifically held that ‘in order for the Commonwealth to take advantage of the enhanced punishment provided in [Code § 18.2-250.1], it must prove a second or subsequent conviction for unlawful possession of marijuana under Code § 18.2-250.1(A).’ (Emphasis added). …

“[O]ur holding in Pierce is the controlling precedent on this issue and is fully dispositive of Artis’s” challenge to the enhanced sentence. …

“Consequently, the trial court erred by imposing an enhanced sentence of twelve months’ imprisonment and a $2,500 fine. Accordingly, the sentencing order is void ab initio and will be vacated, and the case will be remanded for resentencing consistent with the penalty range for first-offense marijuana possession[.]”

Affirmed in part, reversed in part, and remanded.

Artis v. Commonwealth, Record No. 1407-21-1, Jan. 17, 2023. CAV (published opinion) (Callins). From the Circuit Court of the City of Chesapeake (Brown). J. Kelsey Bulger for appellant. Lauren C. Campbell, Jason S. Miyares for appellee. VLW 023-7-018, 11 pp.