ANALYSIS OF MAY 18, 2010 CAV OPINIONS[Posted May 18, 2010] As we did last week, we get three published opinions in criminal appeals from the Court of Appeals of Virginia today.
From my perspective, the most interesting legal issue in today’s batch of cases comes in Johnson v. Commonwealth. It’s one of those appeals in which at first glance you think the challenge is just destined to fail, but the more you dig, the more interesting the real issue becomes.
This one’s about mandatory-minimum sentences, specifically the one for possession of a firearm by a convicted felon. That was among several charges slapped on Johnson, and it’s the only one on which the CAV granted him a writ. The statute required a mandatory minimum of five years in prison for Johnson. Perhaps coincidentally, the same act also classifies the offense as a Class 6 felony, the maximum sentence for which is also five years. That means that Johnson can get no more and no less than five years to serve.
His challenge to this framework was ingenious: He asserted that by fixing a sentencing floor that coincided with the ceiling, the legislature had removed all judicial discretion from the sentence, thus usurping the judicial function of fixing sentences. He contended that doing that violated the separation-of-powers doctrine, so the mandatory-minimum provision was unconstitutional.
If you thought this looked like just an interesting but ultimately futile exercise in legal sophistry, then you’re on the same track as I was when I read the opinion this morning. But when I read on, I got a mild surprise: Fixing a range of sentencing is the legislature’s job in the first place. Really, that makes sense if you think about it; no one challenges the legislature’s right to fix a range of sentences, so why can’t it fix a single one? Today’s opinion, which affirms the conviction, notes that in the early days of the republic, we typically had single sentences for a given crime; the idea of allowing the judge to exercise some discretion within a range of sentences came later.
Another appellant fails today in his effort at hypertechnicality, as the court affirms Harris v. Commonwealth. Despite having a suspended driver’s license, Harris just couldn’t keep away from the steering wheel. He was caught in April 2008 and charged with a third or subsequent offense of driving on a suspended license. He stipulated that he had been convicted before, once under the state suspended-OL statute and twice under a substantially similar local ordinance. But he still fought the predicate for the enhanced punishment, by arguing that that requires three state-law convictions. He contended that the “substantially similar” ordinance violations didn’t count.
Well, yes they do. The appellate court interprets the statute to implicate convictions based on local ordinances just the same as those based on state law, and rejects Harris’s contention that the phrase a third or subsequent offense refers only to the statutory convictions.
Finally, in McNamara v. Commonwealth, an appellant hits paydirt. There’s a statute that prohibits possession of various weapons on school property. That statute contains an exception for keeping a firearm or a knife in a vehicle while you’re at the school (this is so hunters don’t have to clean out their pickups when they go to pick Junior up from school after choir rehearsal).
McNamara showed up on school property with a machete under the seat of his vehicle. A machete is among the specifically enumerated items that constitute weapons, so he’s clearly within the reach of the statute. The question is whether it’s a knife, and thus exempted. The trial court found that the exception didn’t help McNamara, but today, a panel of the Court of Appeals disagrees, reversing the conviction. The word knife includes a great many types of bladed implements, many of which can be used as readily as weapons as they can be used as tools. But the court finds that despite its length, a machete is a kind of knife, so it reverses the conviction.
Theoretically, this kind of decision might engender an effort at a legislative fix. I seriously doubt that the General Assembly will remove the exemption for shotguns and rifles; taking on the gun lobby is not something that most legislators are likely to do. But I doubt there’s a substantial machete lobby out there, so this statute might well get a trim next winter.