                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia


NEHEMIAH NMN THOMAS, JR.
                                           OPINION BY
v.        Record No. 2197-96-3     CHIEF JUDGE NORMAN K. MOON
                                          JULY 15, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                   Mosby G. Perrow, III, Judge
          Margaret Angela Nelson, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Nehemiah NMN Thomas, Jr. appeals his conviction of driving

after having been declared an habitual offender, second offense.

Thomas asserts that the trial court erred in: (1) finding that

Code § 46.2-357(B)(3) was not vague or overly broad and that it

conformed with legislative intent; (2) finding that Code

§ 46.2-357(B)(3) does not require that a prior conviction of a

first offense precede the charging of a second offense under Code

§ 46.2-357; and (3) permitting the Commonwealth to amend the

indictment.

     We hold that Code § 46.2-357(B)(3) is not vague or overly

broad and that its plain meaning clearly provides that any second

or subsequent driving offense in violation of Code § 46.2-357

subjects a defendant to the enhanced punishment provision of Code

§ 46.2-357, whether or not the defendant has been convicted of
the earlier offense at the time the second driving offense

occurs.    We further hold that because the Commonwealth's amended

indictment did not change the "nature or character of the offense

charged," the trial court did not err in permitting the

amendment.    Accordingly, we affirm.

        Thomas was adjudicated an habitual offender on April 5,

1995.    On August 30, 1995, he was charged with driving after

having been declared an habitual offender, first offense.        He was

ultimately convicted of this charge on March 19, 1996.      On

February 11, 1996, Officer Flynn of the Lynchburg Police

Department observed Thomas operating an automobile that matched

the description of a stolen vehicle.      Thomas sped away and Flynn

pursued him until Thomas stopped his vehicle in the middle of a

street, exited the vehicle, and fled on foot.      Flynn apprehended

Thomas, and after informing him that he had determined that the

vehicle was not stolen, Flynn inquired whether Thomas' license

was "suspended or habitual or anything like that?"      Thomas

responded that he knew that his license was "suspended."      Thomas

was charged with driving after having been declared an habitual

offender, second offense.
        An indictment was returned on May 6, 1996, stating that

Thomas, having been declared an habitual offender, "operated a

motor vehicle . . . having been once or more previously convicted

and sentenced for a like offense."       At trial, Thomas argued that

he was improperly charged with a felony under Code

§ 46.2-357(B)(3) because he had not been convicted of driving

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after having been declared an habitual offender, first offense,

before he committed the second offense.     The Commonwealth

introduced a certified copy of an order which established that

Thomas was convicted on March 19, 1996 of operating a motor

vehicle on August 30, 1995, after having been adjudicated an

habitual offender, first offense.   Subsequently, the Commonwealth

was permitted, over Thomas' objection, to amend the indictment to

read that Thomas, having been declared an habitual offender, had

driven on February 11, 1996, "being a second or subsequent

offense, in violation of Virginia Code § 46.2-357."    Thomas was

subsequently found guilty of driving after having been declared

an habitual offender, second offense.

                      Constitutional Challenge

     Thomas asserts that the language of Code § 46.2-357(B)(3) is

vague and overly broad and consequently violated his due process

rights under the Fourteenth Amendment of the United States

Constitution, and Article I, Section 8 of the Virginia

Constitution.  Code § 46.2-357(B) provides that:
               Any person found to be an habitual
          offender under this article, who is
          thereafter convicted of driving a motor
          vehicle . . . shall be punished as follows:

                  *    *   *   *    *   *    *

                2. If such driving, of itself, does
          endanger the life, limb, or property of
          another, such person shall be guilty of a
          felony . . . and no portion of such sentence
          shall be suspended except that . . . (ii) in
          cases wherein such operation is necessitated
          in situations of apparent extreme emergency
          which require such operation to save life or
          limb, said sentence, or any part thereof may
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          be suspended.

                3. If the offense of driving while a
          determination as an habitual offender is in
          effect is a second or subsequent such
          offense, such person shall be punished as
          provided in subdivision 2 of this subsection
          . . . .

(Emphasis added.)


     "A criminal statute is unconstitutionally vague only if it

fails to define the offense `with sufficient definiteness that

ordinary people can understand what conduct is prohibited and in

a manner that does not encourage arbitrary and discriminatory

enforcement.'"   Bell v. Commonwealth, 21 Va. App. 693, 700, 467

S.E.2d 289, 292 (1996) (citations omitted).   The meaning of Code

§ 46.2-357(B)(3) is clear on its face.   A person of ordinary

intelligence would understand that any second or subsequent

driving in violation of Code § 46.2-357 would make him eligible

for the enhanced punishment provision, whether or not he had been

convicted of the earlier offense before the occurrence of the

second driving offense.   Cf. Jones v. Commonwealth, 21 Va. App.

435, 440, 464 S.E.2d 558, 560 (1995) (en banc).
     Code § 46.2-357(B)(3) establishes that a second "offense" is

punishable as a felony.   The statute does not require that for a

first offense to be cognizable as such, it must not only occur

prior to the second offense, but also result in conviction prior

to the occurrence of the second offense.

     Thomas' assertion that the trial court's application of Code

§ 46.2-357 is inconsistent with legislative history, is also


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unpersuasive.   When interpreting a statute, if the language is

clear and unambiguous on its face, we will look no further than

the plain meaning of the statute's words.       Brown v. Lukhard, 229

Va. 316, 321, 330 S.E.2d 84, 87 (1985).   "[W]hen the language of

an enactment is free from ambiguity, resort to legislative

history and extrinsic facts is not permitted because we take the

words as written to determine their meaning."       Id.   Because Code

§ 46.2-357(B)(3) is unambiguous, it is both unnecessary and

improper to consider legislative history in determining the

meaning of the statute.
                        Mitigation Provisions

     We also reject Thomas' additional argument that Code

§ 46.2-357 should be interpreted as requiring a conviction for a

first offense prior to the occurrence of the second offense,

because Code § 46.2-357(B)(2)(ii), unlike other habitual offender

statutes, provides for discretionary mitigation of the enhanced

punishment provision.

     The fact that Code § 46.2-357(B)(2)(ii) contemplates the

possibility that an habitual offender might find himself in an

emergency situation requiring that he drive, has no effect on the

 interpretation of Code § 46.2-357(B)(3).   Code

§ 46.2-357(B)(2)(ii) merely provides for mitigation in punishment

where an emergency necessitates driving, and as such, it does not

alter the clear and unambiguous language of Code

§ 46.2-357(B)(3).   Nor does the mitigation provision of Code

§ 46.2-357(B)(2)(ii) serve to somehow require that the language
                                - 5 -
of the statute be interpreted in a manner that is inconsistent

with or different from the interpretation of other repeat

offender sections.   In analogous circumstances, we had held that

Code § 18.2-248(C), addressing repeat drug offenders, does not

require that the defendant be convicted of a first drug offense

before he commits a second offense in order for the enhanced

punishment provision to apply.     Jones, 21 Va. App. at 440, 464

S.E.2d at 560 (1995) (en banc).
                       Amendment of Indictment

       Code § 19.2-231 authorizes a trial court to amend an

indictment, "provided the amendment does not change the nature

and character of the offense."     Willis v. Commonwealth, 10 Va.

App. 430, 437, 393 S.E.2d 405, 408 (1990).    "The statute

authorizes a trial court to amend indictments in two instances:

where there is a defect in form, or where there is a variance

between the allegations and the evidence, provided the amendment

does not change the nature or character of the offense charged."
 Id.   The statute is to be liberally construed in order to avoid

unnecessary delay in the criminal justice process by allowing

amendment, rather than requiring reindictment.     Sullivan v.

Commonwealth, 157 Va. 867, 876-77, 161 S.E. 297, 300 (1931).

       The record establishes that the Commonwealth's amendment

did not change the "nature or character of the offense charged."

Prior to the amendment, the indictment charged Thomas with

violating Code § 46.2-357 by having been declared an habitual

offender, and then operating a motor vehicle, "having been once

                                 - 6 -
or more previously convicted and sentenced for a like offense."

The amended indictment charged that Thomas had driven on February

11, 1996, after having been declared an habitual offender, "being

a second or subsequent offense, in violation of Virginia Code

§ 46.2-357."   The amended indictment charged Thomas under the

same code section and alleged the same actions in substantiation

of the charge.    The changes effected by the amendment were

semantic in nature and did not substantively alter the charge

against Thomas.   The amended indictment also satisfied the

requirements of Code § 19.2-220 in that it provided a "plain,

concise, and definite written statement . . . describing the

offense charged" by detailing the date, place, and nature of the

acts which Thomas were alleged to have committed and by "cit[ing]

the statute . . . that defines the offense."
     Holding that Code § 46.2-357 is not vague or overly broad,

that it is consequently unnecessary to consider legislative

history in interpreting the statute, and that the trial court did

not err in permitting amendment of the indictment, we affirm.

                                               Affirmed.




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