ANALYSIS OF OCTOBER 5, 2010 CAV OPINIONS[Posted October 5, 2010] The Court of Appeals issues two more published opinions in criminal appeals today, and once again, the appellants come up empty. In Testerman v. Commonwealth, the court analyzes the language of the construction fraud statute for what turns out to be a surprisingly close call.
Based on the jury’s findings, Testerman was the kind of contractor you hope you never hook up with. Hired by a family to help with two separate home-renovation projects, he accepted funds from the homeowners to buy building materials, then failed to deliver the goods and failed to return the money. The relevant portion of the statute provides that “If any person obtain from another an advance of money . . . with fraudulent intent, upon a promise to perform construction, removal, repair or improvement of any building,” and then fails to do the work of return the money, then he’s guilty of larceny.
How is this a close call, you wonder? After all, he took the money, and then he didn’t deliver the materials, so he’s guilty, right? The answer lies in the fact that, as with all criminal statutes, you have to interpret them strictly against the Commonwealth. Note that the language relates to promises “to perform construction,” not “to buy supplies.” Testerman argued in the trial court that this statute didn’t apply to him because the money he received was for buying materials, not for performing labor. (The homeowner agreed that any labor to be performed would be paid separately.)
The trial court disagreed and the jury convicted Testerman. On appeal, a panel of the Court of Appeals affirms, construing the phrase “upon a promise to perform” to mean, “following a promise to perform.” Testerman accepted the money to buy the materials only after he agreed to do the renovation work for the homeowners. That means the statute applies, even though the delivery of the money wasn’t directly for a promise to perform labor.
The other decision today is Canty v. Commonwealth; it’s a probation-revocation appeal with a tricky fact pattern. Canty was convicted of possession of heroin in February 2008; he was sentenced to two years in prison, with all of that time suspended. Six months later the court issued a show-cause order alleging violation of probation. When the gendarmes arrested him, they found a surprise about his person: More heroin.
That normally would result in a brand-new possession charge, but it didn’t in this case because Canty offered to help investigators find some more Bad Guys. When he went to a hearing on the show-cause, no one mentioned the second possession offense, evidently because he was still cooperating. The court reimposed the two-year term, and re-suspended all but four months.
That reprieve was all too temporary; Canty was eventually indicted and convicted of the second possession. There followed yet another probation hearing, and this time, the sentencing judge heard all about his heroin stash from the previous summer. The court added a year to his active prison time.
On appeal, Canty argues that the heroin possession can’t be raised in his 2009 revocation hearing, because it occurred before his first such hearing. This is a second-cousin to double jeopardy – based on a Virginia statute, he contended that he couldn’t be found guilty of violating his probation because there had already been a revocation hearing after the possession.
The CAV rejects this approach – stopping just short of saying, “Nice try” – by noting that the statute limits the period for consideration of violative behavior, to the period of suspension. That is, as long as he committed the act within two years after his original sentence, it was fair game for a revocation hearing. The intervening hearing doesn’t give him a get-out-of-prison-free card, especially because the judge knew nothing about the heroin possession during the first revocation hearing.