COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Ortiz, Chaney and Senior Judge Haley Argued at Richmond, Virginia
PAUL JOSEPH FRANKLIN MEMORANDUM OPINION* BY v. Record No. 0221-22-2 JUDGE DANIEL E. ORTIZ MAY 30, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Kimberley S. White, Judge1
Jennifer Jones, Assistant Public Defender (Vikram Kapil, Public Defender; Michael Hartley, Assistant Public Defender, on briefs), for appellant.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
The repeal of Code § 18.2-104 is not retroactive, and a trial court may properly convict a
defendant under the enhanced punishment scheme when the crime occurred prior to July 1, 2021.
Paul Franklin appeals the denial of his pre-trial motion to dismiss the enhanced punishment for
petit larceny under Code § 18.2-104. Franklin argues he could not be convicted of a felony third
offense under Code § 18.2-104 because after he was indicted, but before his trial occurred, Code
§ 18.2-104 was repealed.2 Franklin appeals the denial of his pre-trial motion and asserts the trial
* This opinion is not designated for publication. See Code § 17.1-413. 1 The Honorable Kimberley S. White presided over the proceedings below. Now a member of this Court, Judge White took no part in this decision. 2 Code § 18.2-104 was the law in effect both at the time that Franklin committed larceny and at the time he was indicted. However, it was repealed before Franklin was actually convicted. The Virginia General Assembly repealed Code § 18.2-104 by 2021 Va. Acts, Special Session I, with an effective date of July 1, 2021. court violated his due process rights in sentencing him under the enhanced punishment statute.
We apply the principles set out in Gionis3 and uphold Franklin’s conviction.
BACKGROUND
On January 31, 2021, Danielle Seamster’s purse was stolen from her unlocked vehicle
which was parked under the carport at her home. The purse and items within it were valued at
$100. Seamster observed footsteps in the snow outside of her home, and her husband discovered
that their mailbox had been damaged. The Seamsters reported the incident to the sheriff’s office.
Sergeant Joey Adams responded to a report of a reckless driver who had struck several
mailboxes. The suspect vehicle was described as green-colored, with different colored doors,
and broken windows covered in duct tape. Adams located a vehicle matching the description he
was given and pulled behind the vehicle, which was parked in a driveway.
Paul Joseph Franklin was identified as the driver and was the sole occupant of the vehicle
when Adams approached. Adams observed a tan-colored purse in plain view on the passenger
side floorboard that matched the description of Seamster’s stolen purse. Further investigation
revealed the purse was in fact Seamster’s stolen bag, and additional items belonging to Seamster
were recovered from Franklin’s jacket pocket.
Franklin was arrested and charged with petit larceny, third offense. Only July 1, 2021,
while Franklin’s case was pending, the General Assembly repealed Code § 18.2-104.4 Franklin
subsequently filed a motion to dismiss the enhanced punishment, stating that the repeal of Code
§ 18.2-104 was retroactive and prevented the Commonwealth from continuing the felony
prosecution against him. The trial court denied Franklin’s motion, stating:
3 Gionis v. Commonwealth, 76 Va. App. 1 (2022). 4 Code § 18.2-104 elevated the penalty for a third offense larceny from a misdemeanor to a felony. -2- [There is a] presumption that when the General Assembly acts that statutes are prospective in nature in the absence of some expressed provision otherwise. . . . And they, in fact, have not stated otherwise in any way, shape, or form when, in fact, they could have. . . .
....
And then the other issue, I think, that we look at is, in fact, whether or not the legislative change -- was it a substantive change or was it merely a procedural change. . . .
In the case before the Court it is in no way simply a procedural change. . . . [W]ith a felony not only comes enhanced punishment that can be imposed, but comes a myriad of rights that are affected. I can’t think of any more substantive -- more substantive change.
Following a bench trial in October 2021, the trial court found Franklin guilty of petit
larceny, third offense, in violation of Code §§ 18.2-96 and 18.2-104. It sentenced Franklin to
five years, with three years and six months suspended. This appeal followed.
ANALYSIS
On appeal, Franklin argues that the trial court erred in convicting him of larceny, third or
subsequent offense—a felony—instead of simple misdemeanor larceny. He argues that the trial
court erred in convicting him under the felony enhancement of Code § 18.2-104 because it was
repealed by the General Assembly before he was convicted. Thus, he argues that this conviction
violates his procedural due process rights. Because we previously held in Gionis v.
Commonwealth, 76 Va. App. 1 (2022), that the repeal of Code § 18.2-104 is not retroactive,
Franklin’s argument fails.
I. The trial court did not err in denying Franklin’s motion to dismiss the enhanced punishment because the offense occurred prior to the repeal of Code § 18.2-104 and the repeal is not retroactive.
a. Standard of Review
Whether the General Assembly’s repeal of Code § 18.2-104 has retroactive effect on this
case is an issue of statutory interpretation. It therefore presents “a pure question of statutory law -3- that this Court reviews de novo.” McCarthy v. Commonwealth, 73 Va. App. 630, 638-39 (2021).
“When construing a statute, [the appellate court’s] primary objective is ‘to ascertain and give
effect to legislative intent,’ as expressed by the language used in the statute.” Blake v.
Commonwealth, 288 Va. 375, 381 (2014) (quoting Cuccinelli v. Rector & Visitors of the Univ. of
Va., 283 Va. 420, 425 (2012)). When the language of a statute is unambiguous, a court is
“bound by the plain meaning of that language.” Conyers v. Martial Arts World of Richmond,
Inc., 273 Va. 96, 104 (2007).
b. Code § 18.2-104 is not retroactive.
Franklin asserts that the trial court erred by denying his motion to dismiss the felony
enhancement under Code § 18.2-104 because, at the time of the motion, the code section was
repealed and unavailable to the prosecution. However, Code § 18.2-104 was in full force when
Franklin committed the offense and when the criminal proceedings began. We previously stated
in Gionis: “[g]iven that both the criminal offense and the proceedings . . . commenced before the
repeal of Code § 18.2-104 went into effect, the plain language of Code § 1-239 prevents this
Court from considering the repeal of Code § 18.2-104 as being effective in [a later] prosecution.”
76 Va. App. at 11. Furthermore, Franklin’s contention goes against the general principles of
statutory construction, recognized under Virginia law, that “legislation only speaks
prospectively.” Booth v. Booth, 7 Va. App. 22, 26 (1988); see also McCarthy, 73 Va. App. at
647 (“[I]nterpreting a law to apply retroactively is not favored.”).
There are two exceptions to this general rule against retroactivity. McCarthy, 73
Va. App. at 647. First, a statute is retroactive “when the text of the statute contains ‘explicit
terms’ demonstrating its retroactive effect,” which is not the case here. Id. Second, laws may be
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COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Judges Ortiz, Chaney and Senior Judge Haley Argued at Richmond, Virginia
PAUL JOSEPH FRANKLIN MEMORANDUM OPINION* BY v. Record No. 0221-22-2 JUDGE DANIEL E. ORTIZ MAY 30, 2023 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY Kimberley S. White, Judge1
Jennifer Jones, Assistant Public Defender (Vikram Kapil, Public Defender; Michael Hartley, Assistant Public Defender, on briefs), for appellant.
Matthew J. Beyrau, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.
The repeal of Code § 18.2-104 is not retroactive, and a trial court may properly convict a
defendant under the enhanced punishment scheme when the crime occurred prior to July 1, 2021.
Paul Franklin appeals the denial of his pre-trial motion to dismiss the enhanced punishment for
petit larceny under Code § 18.2-104. Franklin argues he could not be convicted of a felony third
offense under Code § 18.2-104 because after he was indicted, but before his trial occurred, Code
§ 18.2-104 was repealed.2 Franklin appeals the denial of his pre-trial motion and asserts the trial
* This opinion is not designated for publication. See Code § 17.1-413. 1 The Honorable Kimberley S. White presided over the proceedings below. Now a member of this Court, Judge White took no part in this decision. 2 Code § 18.2-104 was the law in effect both at the time that Franklin committed larceny and at the time he was indicted. However, it was repealed before Franklin was actually convicted. The Virginia General Assembly repealed Code § 18.2-104 by 2021 Va. Acts, Special Session I, with an effective date of July 1, 2021. court violated his due process rights in sentencing him under the enhanced punishment statute.
We apply the principles set out in Gionis3 and uphold Franklin’s conviction.
BACKGROUND
On January 31, 2021, Danielle Seamster’s purse was stolen from her unlocked vehicle
which was parked under the carport at her home. The purse and items within it were valued at
$100. Seamster observed footsteps in the snow outside of her home, and her husband discovered
that their mailbox had been damaged. The Seamsters reported the incident to the sheriff’s office.
Sergeant Joey Adams responded to a report of a reckless driver who had struck several
mailboxes. The suspect vehicle was described as green-colored, with different colored doors,
and broken windows covered in duct tape. Adams located a vehicle matching the description he
was given and pulled behind the vehicle, which was parked in a driveway.
Paul Joseph Franklin was identified as the driver and was the sole occupant of the vehicle
when Adams approached. Adams observed a tan-colored purse in plain view on the passenger
side floorboard that matched the description of Seamster’s stolen purse. Further investigation
revealed the purse was in fact Seamster’s stolen bag, and additional items belonging to Seamster
were recovered from Franklin’s jacket pocket.
Franklin was arrested and charged with petit larceny, third offense. Only July 1, 2021,
while Franklin’s case was pending, the General Assembly repealed Code § 18.2-104.4 Franklin
subsequently filed a motion to dismiss the enhanced punishment, stating that the repeal of Code
§ 18.2-104 was retroactive and prevented the Commonwealth from continuing the felony
prosecution against him. The trial court denied Franklin’s motion, stating:
3 Gionis v. Commonwealth, 76 Va. App. 1 (2022). 4 Code § 18.2-104 elevated the penalty for a third offense larceny from a misdemeanor to a felony. -2- [There is a] presumption that when the General Assembly acts that statutes are prospective in nature in the absence of some expressed provision otherwise. . . . And they, in fact, have not stated otherwise in any way, shape, or form when, in fact, they could have. . . .
....
And then the other issue, I think, that we look at is, in fact, whether or not the legislative change -- was it a substantive change or was it merely a procedural change. . . .
In the case before the Court it is in no way simply a procedural change. . . . [W]ith a felony not only comes enhanced punishment that can be imposed, but comes a myriad of rights that are affected. I can’t think of any more substantive -- more substantive change.
Following a bench trial in October 2021, the trial court found Franklin guilty of petit
larceny, third offense, in violation of Code §§ 18.2-96 and 18.2-104. It sentenced Franklin to
five years, with three years and six months suspended. This appeal followed.
ANALYSIS
On appeal, Franklin argues that the trial court erred in convicting him of larceny, third or
subsequent offense—a felony—instead of simple misdemeanor larceny. He argues that the trial
court erred in convicting him under the felony enhancement of Code § 18.2-104 because it was
repealed by the General Assembly before he was convicted. Thus, he argues that this conviction
violates his procedural due process rights. Because we previously held in Gionis v.
Commonwealth, 76 Va. App. 1 (2022), that the repeal of Code § 18.2-104 is not retroactive,
Franklin’s argument fails.
I. The trial court did not err in denying Franklin’s motion to dismiss the enhanced punishment because the offense occurred prior to the repeal of Code § 18.2-104 and the repeal is not retroactive.
a. Standard of Review
Whether the General Assembly’s repeal of Code § 18.2-104 has retroactive effect on this
case is an issue of statutory interpretation. It therefore presents “a pure question of statutory law -3- that this Court reviews de novo.” McCarthy v. Commonwealth, 73 Va. App. 630, 638-39 (2021).
“When construing a statute, [the appellate court’s] primary objective is ‘to ascertain and give
effect to legislative intent,’ as expressed by the language used in the statute.” Blake v.
Commonwealth, 288 Va. 375, 381 (2014) (quoting Cuccinelli v. Rector & Visitors of the Univ. of
Va., 283 Va. 420, 425 (2012)). When the language of a statute is unambiguous, a court is
“bound by the plain meaning of that language.” Conyers v. Martial Arts World of Richmond,
Inc., 273 Va. 96, 104 (2007).
b. Code § 18.2-104 is not retroactive.
Franklin asserts that the trial court erred by denying his motion to dismiss the felony
enhancement under Code § 18.2-104 because, at the time of the motion, the code section was
repealed and unavailable to the prosecution. However, Code § 18.2-104 was in full force when
Franklin committed the offense and when the criminal proceedings began. We previously stated
in Gionis: “[g]iven that both the criminal offense and the proceedings . . . commenced before the
repeal of Code § 18.2-104 went into effect, the plain language of Code § 1-239 prevents this
Court from considering the repeal of Code § 18.2-104 as being effective in [a later] prosecution.”
76 Va. App. at 11. Furthermore, Franklin’s contention goes against the general principles of
statutory construction, recognized under Virginia law, that “legislation only speaks
prospectively.” Booth v. Booth, 7 Va. App. 22, 26 (1988); see also McCarthy, 73 Va. App. at
647 (“[I]nterpreting a law to apply retroactively is not favored.”).
There are two exceptions to this general rule against retroactivity. McCarthy, 73
Va. App. at 647. First, a statute is retroactive “when the text of the statute contains ‘explicit
terms’ demonstrating its retroactive effect,” which is not the case here. Id. Second, laws may be
retroactive if they affect “remedial or procedural rights rather than substantive or vested” ones.
Id. When a statutory amendment effects a change in both substance and procedure, the courts
-4- will not give the statute retroactive effect. Pennington v. Superior Iron Works, 30 Va. App. 454,
459 (1999).
Franklin inappropriately seeks refuge under the second exception and argues that the
repeal of Code § 18.2-104 disturbs only procedural rights. Because the repeal impacts what
penalty defendants may be subjected to, it impacts more than procedural rights. In McCarthy,
this Court determined that a statutory amendment was substantive when it removed a criminal
punishment for certain conduct. 73 Va. App. at 650. This Court has already determined Code
§ 18.2-104 is substantive “because it reduces the criminal punishment for certain conduct” by
“eliminat[ing] a group or class of felony for those who had committed a third or subsequent
larceny offense.” Gionis, 76 Va. App. at 14.
Franklin was properly charged with enhanced punishment that was available at the time
he committed the offense. Because the trial court did not err in convicting Franklin under Code
§ 18.2-104, we affirm the trial court.
II. The trial court did not violate Franklin’s procedural due process rights by denying his motion to dismiss the enhanced punishment.
Franklin’s second claim that his procedural due process rights were violated fails because
he does not make a cognizable procedural due process argument. Procedural due process
ensures that when the government deprives an individual of “life, liberty, or property” it does so
in a fair manner. United States v. Salerno, 481 U.S. 739, 746 (1987). Procedural due process
requires that a person “have reasonable notice and opportunity to be heard” before any such
deprivation. McManama v. Plunk, 250 Va. 27, 34 (1995); see also Jackson v. W., 14 Va. App.
391, 411 (1992) (“Due process is a flexible concept, and the procedural protections required in a
certain instance vary according to the circumstances of the particular case.”). Franklin does not
claim that he was deprived a hearing before being sentenced but, rather, that it would be
“inequitable” and “unjust” for a “sliver of the population” to be convicted under a more severe -5- punishment scheme. Franklin contends that the trial court violated his rights to procedural due
process “by denying Mr. Franklin’s motion to dismiss the enhanced punishment pursuant to
Virginia Code § 18.2-104, which has been repealed by the Virginia General Assembly and is no
longer an available punishment for the crime of petit larceny.” Franklin’s due process argument
is predicated on his contention that the enhanced punishment under Code § 18.2-104 became
legally unavailable after the statute’s repeal in July 2021. These claims are not cognizable under
the procedural due process doctrine, and as such, this assignment of error provides no basis for
appellate relief. Because Franklin failed to adequately raise a procedural due process concern,
we affirm the trial court.
CONCLUSION
For the above reasons, the repeal of Code § 18.2-104 is not retroactive and Franklin did
not raise a cognizable procedural due process claim. We affirm.
Affirmed.
-6-