COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Kelsey Argued at Salem, Virginia

ALVIN KURT WILLIAMS OPINION BY v. Record No. 1797-02-3 JUDGE LARRY G. ELDER APRIL 27, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Joseph W. Mila m, Jr., Judge Joseph R. Winston, Special Ap pellate Counsel (Public Defender Commission, on briefs), for appellant. Robert H. Anderson, III, Senior A ssistant Attorney General (Jerry W. Kilgore, Attorney Ge neral, on brief), for appellee.

Alvin Kurt Williams (appellant) appeals from his conviction for election fraud in violation of Code § 24.2-1016. On appeal, he contends the Commonwealth was required to prove as an element of the offense that the vote r registration form he si gned included a warning that a willfully false material statement on that form would constitute election fraud and would be punishable as a Class 5 felony. We hold a conviction under the stat ute required proof only that appellant made a willfully false ma terial statement on the registration form 1 and did not require proof that the form apprised him such a statement would constitute election fraud. Thus,

we affirm.

1 On appeal, appellant does not contest the su fficiency of the evidence to prove he made a willfully false material statement on the voter registration form. Thus, we do not address that issue in this appeal.- 2 - I.

BACKGROUND In 1982, appellant was convicted of a total of nineteen felonies, for which he “did time.” In 1997, appellant registered to vote through the Department of Motor Vehicles. He signed a form that included the following attestation clause: I do hereby state, subject to the penalties for false statements set forth above [,] that I am a citizen of the United States, a resident of Virginia, qualified and entitled unde r the Constitution and laws of the Commonwealth of Virginia to register to vote and that the information given above is true and correct to the best of my knowledge. (Emphasis added). No evidence admitted at tr ial established what “the penalties for false statements set forth above” on the registration form actually were. In May 1998, appellant voted in the city council election. In late 1998, appellant was identified as someone who may have committed voter registration fraud. Following an investigation in which appellant admitted signing the voter registration form and “check[ing] ‘ no’ in the block which asked if he had ever been convicted of a felony,” he was indicted and tried for the instant offense. Appellant argued the evidence was insufficient to convict him because it failed to prove,

inter alia , that the form he signed in cluded a statement that making a willfully false material statement on the voter registration form was el ection fraud, a Class 5 fe lony. The trial court ruled proof that such a statement was included on the form was not an element of the offense and convicted appellant of election fraud. The trial court then sentenced appe llant to two years but suspended the sentence “on condition of one y ear probation, two years good behavior and a $300

fine.”- 3 - II.

ANALYSIS Appellant was convicted for election fraud in violation of Code § 24.2-1016. That statute provides as follows: Any willfully false material statement or entry made by any person in any statement, form, or repor t required by this title shall constitute the crime of election fr aud and be punishable as a Class 5 felony. Any preprinted statement, form, or report shall include a statement of such unlawful conduc t and the penalty provided in this section. Code § 24.2-1016. Appellant contends the Comm onwealth was required to prov e the voter registration form he signed contained a warning that a willfully fa lse material statement on that form constituted election fraud and was punishable as a Class 5 fel ony. For the reasons that follow, we disagree. “In construing statutes, courts are charged with ascertaining a nd giving effect to the intent of the legislature.” Crown Cent. Petroleum Corp. v. Hill , 254 Va. 88, 91, 488 S.E.2d 345, 346 (1997) (citing City of Winchester v. Am erican Woodmark Corp. , 250 Va. 451, 457, 464 S.E.2d 148, 152 (1995)). “That intention is initially found in the words of the statute itself, and if those words are clear and unambiguous, we do not rely on rules of statutory construction or parol evidence, unless a literal application would produce a meaningless or absurd result.” Id. (citations omitted). “Although [ambiguous] penal laws are to be construed strictly [against the Commonwealth], they ‘ought not to be construed so strictly as to defeat the obvious intent of the legislature.’” Willis v. Commonwealth , 10 Va. App. 430, 441, 393 S.E.2d 405, 411 (1990) (citation omitted). Absent ambiguity, “the manifest intent of the legislat ure clearly expressed in its enactments should not be judicially thwarted under the guise of statutory construction.” Cregger v. Commonwealth , 25 Va. App. 87, 90, 486 S.E.2d 554, 555 (1997).- 4 - The first sentence of Code § 24.2-1016 e xpressly and unambiguously sets out the

elements of the offense of election fraud. That sentence provides that “[a]ny willfully false material statement or entry made by any person in any statement, form, or report required by this

title shall constitute the crime of election fraud and be punishable as a Class 5 felony.” Code § 24.2-1016 (emphasis added). The legislature di d not include in the sentence listing the elements a requirement that such a false statement would constitute election fraud only if the preprinted statement, form, or report includes a st atement that such conduct is unlawful and is punishable as a Class 5 felony. Rather, it stated in a separate sentence that “[a]ny [such] preprinted statement, form, or report shall includ e a statement [that such conduct is unlawful and is punishable as a Class 5 felony].” Id. As the Commonwealth aptly notes, the Supreme Court “[has] repeated ly held,” in both the civil and criminal context, “‘that the use of “shall,” in a statute re quiring action by a public official, is directory and not mandatory unless the statute mani fests a contrary intent.’” Butler v.

Commonwealth , 264 Va. 614, 619, 570 S.E.2d 813, 816 (2002) (quoting Jamborsky v. Baskins , 247 Va. 506, 511, 442 S.E.2d 636, 638 (1994)); see also Nelms v. Vaughan , 84 Va. 696, 699-700, 5 S.E. 704, 705-06 (1888). “‘[A] statute ma y be mandatory in some respects, and directory in others.’” Ladd v. Lamb , 195 Va. 1031, 1035, 81 S.E.2d 756, 759 (1954) (quoting 82 C.J.S., Statutes § 374, at 868 (1953)). Here, the legislature could have stated that the proscribed be havior “shall constitute the

crime of election fraud but only if the preprinted form includes [t he stated language].” It did

not. 2 It also provided neither (1) a remedy for an accused claiming the failure of the relevant

2 The dissent cites the Su preme Court’s holding in Jimenez v. Commonwealth , 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991), for the proposition that “when a penal statute contains a notice requirement, ‘the notice requirement of the statute [is] a material element of the offense charged.’” Jimenez is not controlling.- 5 - public official to follow the language of the stat ute nor (2) a sanction agai nst the relevant public

official. See Wohlford v. Commonwealth , 3 Va. App. 467, 471, 351 S.E.2d 47, 49 (1986) (“We note that Code § 18.2-267(f) clea rly reflects a legislative policy that law enforcement officers inform a suspect of his rights under this secti on. Yet the legislature has imposed no specific sanctions for failure to comply with the section.”); cf. Troncoso v. Commonwealth , 12 Va. App. 942, 945, 407 S.E.2d 349, 350 (1991) (holding request to suppress evidence “is properly denied absent a showing that the evidence was seized pu rsuant to a constitution al violation or pursuant

to violation of a statute which e xpressly provides suppression as a remedy for its breach”). Thus, it manifested an intent that the language at i ssue, whether directory or mandatory, is not an

element of the offense. Finally, appellant does not allege that the Commonwealth’s failure to prove compliance with this notice provision nevertheless resulted in th e denial of some substa ntive right or in a due process violation. See Butler , 264 Va. at 620, 570 S.E.2d at 816-17. Even if he had, he has alleged no prejudice, and we det ect none. To the extent the purpos e of requiring the provision is

The statute at issue in Jimenez , Code § 18.2-200.1, provided as follows: “If any person obtain from a nother an advance of money, . . . with fraudulent intent, upon a promise to perform construction, . . . and fail or refuse to perfor m such promise, and also fail to substantially make good such advance, he shall be deemed guilty of the larceny of such money, merchandise or other thing if he fails to return such advance within fi fteen days of a request to do so sent by certified mail, return receipt requested , to his last known address or to the address listed in the contract.”

Jimenez , 241 Va. at 247, 402 S.E.2d at 679 (quoting Code § 18.2-200.1) (emphasis added in Jimenez ). Thus, the legislature made clear that an accused could be convicted of larceny under Code § 18.2-200.1 only if the express terms of the statute’s notice provision were met. In appellant’s case, by contrast, the provisi on of Code § 24.2-1016 relating to notice is not contained in the sentence in which the legisl ature set out the elements of the offense of election fraud, making clear the legi slature’s intent that notice is not an element of the crime of election fraud.- 6 - to notify the person registering to vote that maki ng a false statement on the form is unlawful, the attestation clause in the record, below which a ppellant signed his name , makes clear that any “false statements” on the form are “subject to . . . penalties.” The only thing omitted from the attestation clause is precisely what those penalties are. Thus , the record shows “substantial[] compli[ance]” with the challenged portion of the statute. See Nelms , 84 Va. at 699-700, 5 S.E.

at 705-06.

III. We hold a conviction under Code § 24.2-1016 re quires proof only that the accused made a willfully false material statement on the specified form and does not require proof that the form apprised him such a statement would constitu te election fraud. We also find no prejudice resulted to appellant from the failure of the re gistration form to comply with the provision at issue. Thus, we affirm appellant’s conviction.

Affirmed.- 7 - Benton, J., dissenting. A judge convicted Alvin Kurt Williams of vi olating the following statute when he signed a voter registration form at the Department of Motor Vehicles: Any willfully false material statement or entry made by any person in any statement, form, or report required by this title shall constitute the crime of election fr aud and be punishable as a Class 5 felony. Any preprinted statement, form, or report shall include a statement of such unlawful conduc t and the penalty provided in this section. Code § 24.2-1016. Fully defining the offense, th is statute requires the preprinted voter registration form to give notice of the offense and the penalty. “‘Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed.’” Tazewell County Sch. Bd. v. Brown , 267 Va. 150, 162, 591 S.E.2d 671, 676-77 (2004) (citation omitted). Moreover, the pr inciple is well established that when a penal statute contains a notice require ment, “the notice requirement of the statute [is] a material element of the offense charged.” Jimenez v. Commonwealth , 241 Va. 244, 251, 402 S.E.2d 678, 681 (1991). “Further, before an accused can be punished, ‘his case must be plainly and unmistakably within the statute.’” Harward v. Commonwealth , 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985) (citation omitted). By putting this notice requirement within the te xt of the penal statute, “it [is] clear that the General Assembly meant what it said.” Jimenez , 241 Va. at 251, 402 S.E.2d at 681. 3 If any

3 No doubt the General Assembly was aware that the various states ha ve a wide diversity of laws governing whether, and to what extent, persons are disenfranchised from voting, see Richardson v. Ramirez , 418 U.S. 24, 85 n.28 (1974) (Marshall, J., dissenting) (listing by state various laws that do not disenf ranchise former felons), and further was aware that the “MotorVoter” law, which provides for voter re gistration in various non-traditional and less formalistic forums, permits registration of persons moving into Virginia from those other states. Upon changing a residence to Virginia, a person fr om another state where felons may vote might- 8 - doubt arises about why the General Assembly us ed two sentences rather than one unwieldy sentence when defining the offense, that doubt must be resolved by strictly construing the statute.

Penal statutes are to be st rictly construed against the Commonwealth and in favor of the citizen’s liberty. Cox v. Commonwealth , 220 Va. 22, 25, 255 S.E.2d 462, 464 (1979). Such statutes may not be extended by implication; they must be applied to cases clearly desc ribed by the language used. Price v. Commonwealth , 209 Va. 383, 385-86, 164 S.E.2d 676, 678 (1968). And the accused is entitled to th e benefit of any reasonable doubt about the construction of a penal statute. Enoch v. Commonwealth , 141 Va. 411, 436, 126 S.E. 222, 230 (1925). Martin v. Commonwealth , 224 Va. 298, 300-01, 295 S.E.2d 890, 892 (1982). The record contains no proof that the voter registration form on which Williams made his statement contained the notice required by Code § 24.2-1016. Therefore, I would reverse the

conviction and dismiss the indictment.

conclude that the answer to th e question “have you ever been c onvicted of a felony” on a voter registration application would be wholly immaterial to the process of registering to vote.