Pompell v. Commonwealth

80 Va. App. 474

899 S.E.2d 51

Christopher POMPELL

v.COMMONWEALTH of Virginia

Record No. 1246-23-3

Court of Appeals of Virginia, Lexington.

March 26, 2024

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY, Bruce D. Albertson, Judge Aaron W. Graves, Harrisonburg, for appellant.

Sheri H. Kelly, Assistant Attorney General (Jason S. Miyares, Attorney General; Rebecca Johnson Hickey, Assistant Attorney General, on brief), for appellee.

Present: Judges Beales, O’Brien and Raphael

OPINION BY JUDGE MARY GRACE O’BRIEN

Christopher Pompell ("appellant") appeals the trial court’s ruling permitting the Commonwealth to amend an indictment to a misdemeanor that, is not a lesser-included offense of the originally charged felony, after the one-year statute of limitations on misdemeanors had expired. Appellant asserts that an indictment charging a felony can be amended to a misdemeanor after the one-year period has expired only if the amended charge is a lesser-included offense of the felony. Because the amendment was permissible under Code § 19.2-231, we affirm.

BACKGROUND

On July 19, 2021, appellant was charged by warrant with felony breaking and entering with the intent to commit assault and battery¹ for an offense committed on July 9, 2021. A grand jury indicted appellant on May 16, 2022.

On November 9, 2022, the Commonwealth moved to amend the felony charge to misdemeanor unlawful entry.² Appellant objected, arguing that the misdemeanor was riot a lesser-included offense of the felony and the statute of limitations for the misdemeanor had expired under Code § 19.2-8.

On March 15, 2023, the court amended the indictment to misdemeanor unlawful entry. Relying on Code § 19.2-231,³ the court found that the Commonwealth was permitted to amend the indictment because the amendment did not "change the nature or character of the offense charged."

Appellant moved to dismiss the amended indictment, again asserting that the amendment violated the statute of limitations because more than one year had passed between the offense—July 9, 2021—and the date the indictment was amended to a misdemeanor—March 15, 2023. Appellant argued that the amended indictment commenced a "new prosecution … initiated outside the [one-year] period under [Code 19.2-8]." The Commonwealth asserted that the amended indictment did not commence a new prosecution because it did not change the "nature and circumstances of the acts charged" in the original indictment. The court denied appellant’s motion to dismiss.

Appellant entered a conditional guilty plea under North Carolina v. Alford⁴ to unlawful entry, reserving the right to appeal the court’s rulings.

ANALYSIS

[1–4] We review questions of statutory interpretation and statutes of limitations de novo. Ruderman v. Pritchard, 76 Va. App. 295, 302, 881 S.E.2d 665 (2022) (statutory interpretation); Tuck v. Goodyear Tire & Rubber Co., 47 Va. App. 276, 284, 623 S.E.2d 433 (2005) (statute of limitations). "Where possible, an appellate court analyzing a statute must determine legislative intent ‘from the plain meaning of the language used.' " Street v. Commonwealth, 75 Va. App. 298, 306, 876 S.E.2d 202 (2022) (quoting Hillman v. Commonwealth, 68 Va. App. 585, 592-93, 811 S.E.2d 853 (2018)). "[W]hen the General Assembly has used words that have a plain meaning, courts cannot give those words a construction that amounts to holding that the General Assembly meant something other than that which it actually expressed." Id. (quoting Coles v. Commonwealth, 44 Va. App. 549, 557, 605 S.E.2d 784 (2004)). We must also assume "the legislature chose, with; care, the words it used when it enacted the relevant statute." Id. (quoting Chenevert v. Commonwealth, 72. Va. App. 47, 57, 840 S.E.2d 590 (2020)).

This case presents an issue of first impression in Virginia: whether an amended indictment charging a misdemeanor similar in nature and character to the originally charged felony, but which is not a lesser-included offense, commences a new prosecution triggering the statute of limitations.

Appellant argues that an indictment charging a felony can be amended to a misdemeanor after the statute of limitations on misdemeanors has expired only if the misdemeanor is a. lesser-included offense of the originally charged felony. Appellant contends that because misdemeanor unlawful entry is not a lesser-included offense of the originally indicted felony breaking and entering charge, the amended indictment commenced a new prosecution and was accordingly barred by the one-year limitations period for misdemeanors in Code § 19.2-8.

[5] Code § 19.2-8 provides that a "prosecution for a misdemeanor … shall be commenced within one year next after there was cause therefor." It is well established that the "issuance of a warrant commences a prosecution within the, meaning of this provision." Hall v. Commonwealth, 2 Va. App. 159, 162, 342 S.E.2d 640 (1986). An indictment may be amended "at any time" before the fact finder returns a verdict if there is a "defect in form" or a "variance" between the allegations and the evidence,

provided the amendment does not change the nature or character of the offense charged. After any such amendment the accused shall be arraigned on the indictment, presentment or information as amended, and shall be al-lowed to plead anew thereto, if he so desires, and the trial shall proceed as if no amendment had been made; but if the court finds that such amendment operates as a surprise to the accused, he shall be entitled, upon request, to a continuance of the case for a reasonable time.

Code § 19.2-231.

This Court has previously held that, "so long as the prosecution was commenced within the applicable limitation[s] period" for misdemeanors, an indictment may be amended from a felony to a lesser-included misdemeanor under Code § 19.2-231 without violating the statute of limitations. Hall, 2 Va. App. at 162-63, 342 S.E.2d 640. In Hall, the defendant was indicted for unlawfully and feloniously Obtaining services with intent to defraud, and a warrant was issued within one year of when the offense occurred. Id. at 161, 342 S.E.2d 640. After the applicable limitations period on misdemeanors had expired, the Commonwealth moved to amend the indictment to charge a lesser-included misdemeanor. Id. Applying Code § 19.2-231, this Court ruled that the "amendment[ ] did not change the nature of the offense; [it] merely had the effect of reducing the charge from a felony to a misdemeanor," and the statute of limitations did not bar the amendment because the warrant had been issued before the limitations period on misdemeanors had expired. Id. at 162-63, 342 S.E.2d 640.

Hall's reasoning did not rest on the bare fact that the amendment at issue was to a lesser-included offense. Rather, the Central inquiry in Hall was whether the amendment was permissible under Code § 19.2-231; in other words, whether the amendment "alter[ed] the nature or character of the offense charged." Id. at 163, 342 S.E.2d 640. It did not, Hall concluded, and the prosecution commenced before the applicable limitations period expired, so the amendment did not begin a new prosecution triggering the statute of limitations. Id. at 162-63, 342 S.E.2d 640.

[6, 7] We hold that Hall's rationale extends to amendments charging misdemeanors that are not lesser-included offenses of the originally charged felony. Under Code § 19.2- 231 and Hall, an amended indictment continues a prosecution, and does not commence a new one, if the amendment "does not change the nature or character of the offense Charged."⁵ Code § 19.2-231. This analysis does not by necessity hinge on whether the amended charge is a lesser-included offense. Here, the court found that the amendment did not change the nature or character of the offense charged. Appellant does not assign error to that finding. Accordingly, because it did not change the nature or character of the originally charged offense, the amendment did not commence a new prosecution that would be time-barred by Code § 19.2-8.

Appellant’s argument that amendments must be limited to lesser-included misdemeanors, or else run afoul of the statute of limitations, finds no support in Code § 19.2-231 or in precedent interpreting this statutory text. For example, in Pulliam v. Cammonwealth, 55 Va. App. 710, 717, 688 S.E.2d 910 (2010), we found that an indictment amended from charging indecent liberties with a child to aggravated sexual battery—a charge which is not a lesser-included offense of indecent liberties—did not change the nature or character of the offense because both crimes were "premised upon the same set of facts." In doing so, we specifically rejected an approach that "compare[d] the elements of [each] offense" and instead focused on "the underlying conduct of appellant."⁶ Id.; see also Cummings v. Commonwealth, No. 1891-14-1, slip op. at 7-8, 2015 WL 6952231, at *4, 2015 Va. App. LEXIS 325, at *10-11 (Nov. 10, 2015)⁷ (finding that an amendment of an indictment from felony forgery to a non-lesser-included offense, misdemeanor obtaining property by false pretenses, did not change the nature or character of the offense charged where the "Commonwealth continually premised its case on the same operative facts throughout the prosecution" and the code sections shared "a similarity of purpose and subject matter").

When examining the statutory text, we assume the legislature chose with care the words it used when enacting Code § 19.2-231. See Street, 75 Va. App. at 306, 876 S.E.2d 202. Here, the General Assembly "expressed its intent in clear and unequivocal terms"—an indictment may be amended only if it corrects (1) a defect in form or (2) a variance between the allegations contained in the original indictment and the proof the Commonwealth expects to adduce at trial, "provided the amendment does not change the nature or character of the offense charged," Haefele v.. Commonwealth, 75 Va. App, 591, 600, 878 S.E.2d 422 (2022) (quoting Hill v. Commonwealth, 73...