COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, McCull ough and Senior Judge Annunziata Argued by teleconference

JOSHUA BRENT McCLARY MEMORANDUM OPINION * BY v. Record No. 0240-13-4 J UDGE STEPHEN R. McCULLOUGH APRIL 29, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF STAFFORD COUNTY Sarah L. Deneke, Judge John E. Robins, Jr., for appellant. David M. Uberman, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney Genera l, on brief), for appellee.
Joshua Brent McClary appeals from an order re voking a portion of his suspended sentences. He argues that his underlying conviction in Nottoway County for violating Co de § 18.2-361 is void and, therefore, the Stafford County Circuit Court could not rely on that co nviction to revoke any part of his suspended sentences. In particular, he relies on MacDonald v. Moose, 710 F.3d 154 (4th Cir. 2013), a decision from the Un ited States Court of Appeals for the Fourth Circuit. In MacDonald, the Fourth Circuit held that Code § 18.2-361 was unconstitutional on its face. BACKGROUND Appellant was convicte d of carnal knowledge and aggravat ed sexual battery in 1998, in Stafford County. The court suspen ded the entirety of his twenty-year sentence. On July 16, 2012, appellant was convicted in Nottoway County Circu it Court of non-forcible so domy, in violation of Code § 18.2-361. The conduct that formed the basis for this convict ion occurred in a public area of

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - a detention facility where appellant was being held for treatment as a sexually viol ent predator. Following a hearing, the Stafford County Circuit Court found appellan t in violation of the terms of his probation. The court revoked all of appellant ’s suspended sentences, then re-suspended ten years, netting appellant an activ e sentence of three years and three months imprisonment. ANALYSIS I. The issue before us – the faci al constitutionality of a statut e – involves a question of law, which we review de novo . Johnson v. Commonwealth , 56 Va. App. 244, 2 48, 692 S.E.2d 651, 653 (2010). Our resolution of this case is controlled by the interpanel accord doctrine. Under this doctrine, “a decision of a panel of the Court of Appeals becomes a predicate for application of the doctrine of stare decisis until overruled by a decision of the Court of Appeals sitting en banc or by a decision of this Court.” Johns on v. Commonwealth, 252 Va. 425, 430, 478 S.E.2d 539, 541 (1996). This Court in Saunders v. Commonwealth, 62 Va. App. 79 3, 801, 753 S. E.2d 602, 606 (2014), turned back a challenge on the same ground raised here, i.e. , that the Four th Circuit’s decision in MacDonald compels this Court to declare Code § 18.2-361 unconsti tutional on its face. We must follow the Saunders decision. Appellant seeks to distinguish Sa unders on the basis that the c onviction at issue in that case was predicated upon conduct in volving children, whereas his conviction does not involve such conduct. We find that fa ctual distinction unavailin g. The question before this Court in Saunders was the facial constitutionality of Code § 18.2-361. 62 Va. App. at 805, 753 S.E.2d at 60 8. If the statute is facially uncons titutional, then appellant’s conviction was void. A void conviction cannot serve as the basis for a probation revocation. Id. If, however, Code § 18.2-361 is not facially- 3 - unconstitutional, appellan t’s conviction was not void and he cannot collate rally attack it in a probation revocation proceeding. By concluding that Code § 18.2-361 was not facially unconstitutional, the C ourt in Saunders foreclosed collateral attacks on conv ictions of the type at issue in this appeal. II. Under our system of government , the people are sovereign. Se e U.S. Const. Preamble (“We the people” establish the Constitution); Va. Const. art. I § 2 (“That all po wer is vested in, and consequently derived from, the peopl e, that magistrates are their tr ustees and servants, and at all times amenable to them.”). Judges , who serve this sovereign, are ve sted with the power of judicial review in individual cases to determine whet her a legislative enactment conforms to the Constitution. See Marbury v. Madison, 5 U.S. 137 (1803). Th is counter-majoritarian power should be exercised with cautio n and circumspection. Facial challenges to statutes are “disfavored.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). In contrast, “[a]s-applied challenges are the basic building blocks of constitutional adjudication.” G onzales v. Carhart, 550 U.S. 124, 168 (2007). This is so for several reasons. First, courts ar e institutionally ta sked with adjudicating discrete cases, not with making comprehens ive statements of polic y. See Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973) (“[U]nder our constituti onal system[,] courts ar e not roving commissions assigned to pass judgm ent on the validity of the Nation’s la ws.” (citation omitted)). With rare exceptions, such as in the First Amen dment context, unless a statut e infringes on a particular litigant’s constitutional rights, courts will not entert ain claims of unconstituti onality on hypothetical facts not at issue in the case un der adjudication. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be- 4 - applied unconstitutionally to others, in other situations not before the Court.” Id. at 610 (citations omitted). Second, as the United States Supreme Court has observed: Facial challenges also run contrary to the fundamental principle of judicial restraint that courts shou ld neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution. We must keep in mind that [a] ruling of unconstitutionality frustrates the intent of the elected re presentatives of the people. Wash. State Grange, 552 U.S. at 450-51 (citat ions omitted) (internal quotations omitted). Appellant’s conduct, the record indicates, occurred in public. Consequently, the facts before us fall outside the scope of Lawr ence v. Texas, 539 U.S. 558 (2003), which involved consenting adults in private. Indeed, the Court in Lawrence expressly noted that that case “d[id] not involve public conduct.” I d. at 578. The Court in Lawrence simply did not address whether a statute like Code § 18.2-361 is f acially unconstitutional. Instea d, the Court concluded that the Due Process Clause of the Fourteenth Amendmen t demanded “respect for the[] private lives” of the appellants and foreclosed the state from “dem ean[ing] their existence or control[ing] their destiny by making their private sexual conduct a crime.” Id. (emphasis added). Applying ordinary principles that govern f acial and as applied challenges leads to the conclusion that Code § 18.2-361 is not facially in valid. Appellant does no t raise an as applied challenge and, therefore, his conviction fo r violating Code § 18.2-361 could properly be considered by the court below in revoking his suspended sentences.- 5 - CONCLUSION We affirm the decision below. Affirmed.