                               COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, McClanahan and Petty
Argued at Lexington, Virginia


LARRY DANIEL WALKER, JR.
                                                              MEMORANDUM OPINION * BY
v.     Record No. 0791-09-3                                  JUDGE ROBERT J. HUMPHREYS
                                                                    JUNE 22, 2010
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                                 David A. Melesco, Judge

                 Mark T. Williams (Williams, Morrison, Light & Moreau, on brief),
                 for appellant.

                 Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Larry Daniel Walker, Jr. (“Walker”) was convicted in a bench trial of driving after having

been declared a habitual offender, second offense in violation of Code § 46.2-357. He was

sentenced to three years of imprisonment, with all but twelve months suspended for ten years of

good behavior. On appeal, Walker claims that the trial court erred in using a prior conviction for

driving as a habitual offender under the City Code of Danville, Virginia, to enhance the habitual

offender punishment under the Virginia Code to a felony as a second or subsequent offense. For

the following reasons, we disagree and affirm.

                                            ANALYSIS

       On appeal, Walker contends the trial court erred in using the prior conviction under the

City Code of Danville to enhance the habitual offender conviction to a felony as a second or



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
subsequent offense. Specifically, he claims that the habitual offender statute does not permit the

use of similar ordinances to enhance the conviction pursuant to Code § 46.2-357.

       “A matter of statutory interpretation . . . presents a pure question of law, which we review

de novo.” Giles v. Commonwealth, 277 Va. 369, 373, 672 S.E.2d 879, 882 (2009) (citations

omitted).

               “Under basic rules of statutory construction, we examine a statute
               in its entirety, rather than by isolating particular words or phrases.
               When the language in a statute is clear and unambiguous, we are
               bound by the plain meaning of that language. We must determine
               the General Assembly’s intent from the words appearing in the
               statute, unless a literal construction of the statute would yield an
               absurd result.”

Harris v. Commonwealth, 56 Va. App. 253, 255-56, 692 S.E.2d 656, ___ (2010) (quoting

Schwartz v. Commonwealth, 45 Va. App. 407, 450, 611 S.E.2d 631, 653 (2005)). “‘[A] statute

should be read to give reasonable effect to the words used and to promote the ability of the

enactment to remedy the mischief at which it is directed.’” Id. at 256, 692 S.E.2d at ____

(quoting Mayhew v. Commonwealth, 20 Va. App. 484, 489, 458 S.E.2d 305, 307 (1995)).

               “An undefined term must be ‘given its ordinary meaning, given the
               context in which it is used.’” Sansom v. Bd. of Supervisors, 257
               Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep’t of
               Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658,
               261 S.E.2d 532, 533-34 (1980)). We strictly construe penal
               statutes against the Commonwealth, Welch v. Commonwealth, 271
               Va. 558, 563, 628 S.E.2d 340, 342 (2006), but remember “that the
               plain, obvious, and rational meaning of a statute is always to be
               preferred to any curious, narrow, or strained construction,” Turner
               v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).
               Hence, “we will not apply ‘an unreasonably restrictive
               interpretation of the statute’ that would subvert the legislative
               intent expressed therein.” Armstrong v. Commonwealth, 263 Va.
               573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v.
               Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

Lacey v. Commonwealth, 54 Va. App. 32, 37-38, 675 S.E.2d 846, 849 (2009).




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          The City of Danville ordinance § 21-3(a) under which Walker was previously convicted

states:

                 Pursuant to the authority of section 46.2-131 of the Code of
                 Virginia, all of the provisions and requirements of the laws of the
                 Commonwealth contained in title 46.2 of the Code of Virginia and
                 in effect on July 1, 1998, except those provisions and requirements
                 the violations of which constitute a felony and except those
                 provisions and requirements which, by their nature, can have no
                 application to or within the City, and except those provisions
                 which by law may not be adopted or incorporated, are hereby
                 adopted and incorporated mutates mutandis in this chapter by
                 reference and made applicable within the City. References to
                 “highways of the state” contained in such provisions and
                 requirements hereby adopted shall be deemed to refer to the
                 streets, highways and other public ways within the City. Such
                 provisions and requirements are adopted and made a part of this
                 chapter as fully as though set forth at length herein, and it shall be
                 unlawful for any person within the City to violate, or fail, neglect
                 or refuse to comply with, any such provision or requirement;
                 provided that, in no event shall the penalty imposed for the
                 violation of any such provision or a requirement exceed the penalty
                 imposed for a similar offense under title 46.2 of the Code of
                 Virginia.

          Code § 46.2-357(A) makes it unlawful “for any person determined or adjudicated an

habitual offender to drive any motor vehicle or self-propelled machinery or equipment on the

highways of the Commonwealth while the revocation of the person’s driving privilege remains

in effect.” Code § 46.2-357(B)(3) provides “[i]f 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, irrespective of whether the offense, of

itself, endangers the life, limb, or property of another.”

          The reference to subsection 2 enhances the punishment to a

                 felony punishable by confinement in a state correctional facility for
                 not less than one year nor more than five years, one year of which
                 shall be a mandatory minimum term of confinement or, in the
                 discretion of the jury or the court trying the case without a jury, by
                 mandatory minimum confinement in jail for a period of 12 months.


                                                 -3-
Code § 46.2-357(B)(2). The very last sentence of subsection 2 further notes that “[f]or the

purposes of this section, an offense in violation of a valid local ordinance, or law of any other

jurisdiction, which ordinance or law is substantially similar to any provision of law herein shall

be considered an offense in violation of such provision of law.” Id. (emphasis added).

       In looking at Code § 46.2-357 in its entirety, we conclude that the plain meaning of the

last sentence of subsection 2 beginning “[f]or the purposes of this section” means that, in

determining what prior “offenses” are encompassed within this code section, the General

Assembly intended that the provisions of that subsection apply to that entire section of the Code,

including subsection 3. The language in Code § 46.2-357 which specifically refers to a

“subdivision” and “subsections” when it refers to a specific subpart indicates to us that the

General Assembly intentionally drew this distinction. See Code § 46.2-357(B)(3) (“as provided

in subdivision 2 of this subsection”); § 46.2-357(D) (“subdivisions 2 and 3 of subsection B”).

However, the language in Code § 46.2-357(B)(2) merely states “this section.” Therefore, for the

purposes of a prior offense, “an offense in violation of a valid local ordinance . . . which

ordinance . . . is substantially similar to any provision of laws herein shall be considered an

offense in violation of such provision of law.” Code § 46.2-357(B)(2).

       The evidence proved that Walker was convicted in 2005 of driving as a habitual offender

in violation of the City Code of Danville, which was substantially similar to Code

§ 46.2-357(B)(2) in that it specifically incorporated Title § 46.2 and stated it was unlawful for

any person to violate such provisions. Therefore, we hold the conviction under the City Code of

Danville constitutes a prior offense under Code § 46.2-357, and thus conclude that the trial court




                                                -4-
did not err in using the prior conviction to enhance the habitual offender conviction to a felony as

a second or subsequent offense.

                                                                                         Affirmed.




                                               -5-
