                    COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


AMANULLAH KAHALIQI, S/K/A
 AMANULLAH KHALIQI
                                          MEMORANDUM OPINION * BY
v.   Record No. 1611-00-4        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               APRIL 10, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                      William D. Hamblen, Judge

           William E. Hassan (Duvall, Harrigan, Hale &
           Hassan, P.L.C., on briefs), for appellant.

           Linwood T. Wells, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Amanullah Kahaliqui (appellant) pled guilty to intentionally

making a false report to a law-enforcement official with intent to

mislead, in violation of Virginia Code § 18.2-461.    In this

collateral attack appellant contends that his conviction is void

because the indictment was insufficient to state a criminal act.

We disagree and affirm his conviction.

                                 I.

     Appellant was indicted for a violation of Code

§ 18.2-308.2:2, which makes it unlawful to willfully and


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
intentionally make a false statement on a form required to

purchase a firearm.    On September 23, 1996, appellant appeared for

trial.    The Commonwealth moved to amend the indictment 1 to read:

            THE GRAND JURY for the 31st Judicial Circuit
            comprising the County of Prince William and
            the Cities of Manassas and Manassas Park,
            charges that on or about December 16, 1995,
            in the aforesaid Judicial Circuit, the
            accused, AMANULLAH KAHALIQI, did willfully
            and intentionally make a false report to a
            law-enforcement official with intent to
            mislead, in violation of Virginia Code
            Section 18.2-461.

(Emphasis added).    The trial court inquired of appellant's

counsel, "you have no objection to the proposed amendment[?]"

Appellant's counsel responded, "Not at all, Your Honor."     The

trial court granted the Commonwealth's motion to amend the

indictment.

     Appellant was arraigned and pled guilty after consulting with

counsel.    The trial court determined that "the defendant fully

understood the nature and effect of said plea and of the penalties

that may be imposed upon a conviction . . . and determined that



     1
         The original indictment read:

                 THE GRAND JURY for the 31st Judicial
            Circuit, comprising the County of Prince
            William and the Cities of Manassas and
            Manassas Park, charge that on or about
            December 16, 1995, in the aforesaid Judicial
            Circuit, the accused, AMANULLAH KAHALIQI,
            did willfully and intentionally make a false
            statement on the consent form required to
            purchase a firearm, in violation of Virginia
            Code Section 18.2-308.2:2.

                                 - 2 -
the plea of GUILTY was given voluntarily."    The trial court found

appellant guilty and sentenced him in accord with a recommendation

by the Commonwealth.

     On April 6, 2000, appellant filed a Motion to Vacate and

Dismiss the conviction, alleging that the trial court lacked

subject matter jurisdiction because the amended indictment failed

to state a crime.   The trial court found appellant's "motion

utterly void of any legal merit."

                                 II.

     The sole issue raised in this appeal is whether the

appellant can now collaterally attack his conviction because the

amended indictment failed to state an offense.     The indictment

at issue stated that appellant "did willfully and intentionally

make a false report to a law-enforcement official with intent to

mislead, in violation of Virginia Code Section 18.2-461."      The

applicable statutory section provides that "[i]t shall be unlawful

for any person (i) to knowingly give a false report as to the

commission of any crime to any law-enforcement official with

intent to mislead."    Code § 18.2-461 (emphasis added).   Thus,

appellant contends the indictment failed to charge that the false

report concerned the commission of a crime.

     "Judgment in any criminal case shall not be arrested or

reversed upon any exception or objection made after a verdict to

the indictment or other accusation, unless it be so defective as

to be in violation of the Constitution."     Code § 19.2-227

                                - 3 -
(emphasis added).   Thus, if the trial court "had jurisdiction of

the person and the crime charged, and if the punishment imposed

is of the character prescribed by law, a writ of habeas corpus

does not lie . . . for mere irregularities or insufficiency of

an indictment no matter how vulnerable to direct attack on

motion to quash."   Council v. Smyth, 201 Va. 135, 139, 109

S.E.2d 116, 119-20 (1959).    "As long as the indictments were not

so defective so as to deprive the court of jurisdiction to

render the judgments of conviction, a petitioner may not

collaterally attack the sufficiency of the indictments."      Abney

v. Warden, Mecklenburg Correctional Center, 1 Va. App. 26, 29,

332 S.E.2d 802, 804 (1985).   Appellant cannot use a collateral

attack "as a substitute for an appeal or writ of error when the

time for appeal from the judgment of conviction has long since

passed."   Council, 201 Va. at 140, 109 S.E.2d at 120.

     The function of an indictment is "to give an accused notice

of the nature and character of the accusations against him in

order that he can adequately prepare to defend" himself.      Willis

v. Commonwealth, 10 Va. App. 430, 437-38, 393 S.E.2d 405, 409

(1990) (citations omitted).   Therefore, Code § 19.2-220 requires

an indictment to be a "plain, concise, and definite written

statement . . . describing the offense charged."   The indictment

must describe as much of the offence "as is sufficient to advise

[the accused] what offense is charged."   Code § 19.2-220.    Rule

3A:6(a) requires "the indictment or information, in describing

                                - 4 -
the offense charged, shall cite the statute or ordinance that

defines the offense."

     Appellant contends that Wilder v. Commonwealth, 217 Va.

145, 225 S.E.2d 411 (1976), 2 controls the outcome of this case.

In Wilder the statutory section under which defendant was

charged dealt with "the acts of Taking a credit card, Obtaining

a credit card, Withholding a credit card, and Receiving a credit

card" while the "challenged indictment charged defendant with

'possession' of stolen credit cards."      Wilder, 217 Va. at 147,

225 S.E.2d at 413.    The Supreme Court explained, "in the context

of subsection (a) possession is not synonymous with taking,

obtaining, withholding, or receiving.     While possession may

Result from any of the foregoing acts, the subsection deals with

the Manner in which possession is acquired and not with

possession alone."     Id.   Therefore, the court held that "a

charge of mere possession of a stolen credit card is not

sufficient to state the offense of credit card theft under

subsection (a)."     Id.   Nor could the reference to the statute

save the indictment because "such references support, but do not

replace, the 'definite written statement.'"      Id. at 148, 225

S.E.2d at 413 (emphasis added).




     2
       We note that the indictment in Wilder was challenged on a
direct appeal whereas the indictment in the instant case is
being challenged in a collateral attack.


                                  - 5 -
     In Wall Distributors, Inc. v. City of Newport News, 3 the

Supreme Court of Virginia distinguished Wilder from the

situation where an element of the crime was omitted from the

"definite written statement."   In Wall, the indictment alleged

that defendant possessed with intent to sell obscene magazines

in violation of the local statute.      However, the indictment did

not allege that defendant knowingly possessed the magazines as

required by the ordinance.   The Court emphasized the indictment

in Wilder was invalid because "the statutes proscribed criminal

conduct different in kind from that charged in the indictment,"

therefore, the citation to the statute could not save the

indictment because it would require the citation to replace the

written statement and not simply support the statement.      See

Wall, 228 Va. 358, 363, 323 S.E.2d 75, 77 (1984).      However, in

Wall the Court stated that the required citation "is not mere

surplusage but is inextricably included as a definitive part of

the indictment[]."   Id. at 363, 323 S.E.2d at 78.     The Court

held that the "inference to be drawn from th[e] provision

[requiring a cite to the statute] is clear -- the incorporation

[into the indictment] by reference of a statute or ordinance is




     3
       We note that the indictment in Wall was also challenged on
a direct appeal whereas the indictment in the instant case is
being challenged in a collateral attack.


                                - 6 -
                 4
contemplated."       228 Va. at 362, 323 S.E.2d at 77.   Thus, the

"written statement[] gave information as to what offense was

being charged and incorporated by reference the complete

definition[, including the omitted element,] contained in the

ordinance."   Wall, 228 Va. at 363, 323 S.E.2d at 78.     In so

holding, the Court emphasized that unlike Wilder, "[t]here can

be no misunderstanding as to what the indictments charged.

Supported by reference to the ordinance, the indictments

satisfied the requirement of a definite written statement."

Wall, 228 Va. at 363, 323 S.E.2d at 77-78 (emphasis added).

Therefore, where the "definite written statement" and the

statutory citation charge the same crime, but an element is


     4
       Wall discusses Rule 3A:7(a). Rule 3A:7(a) was renumbered
and amended in 1984 to Rule 3A:6(a). However no substantive
changes regarding citation to the statute were made in amending
the Rule; both versions contain the same requirements regarding
citation to the statute.
     Old Rule 3A:7(a) provided that: the indictment must
contain a statement "citing the statute or ordinance that
defines the offense or, if there is no defining statute or
ordinance, prescribes the punishment for the offense . . . .
Error in the citation of the statute or ordinance that defines
the offense or prescribes the punishment therefore, or omission
of the citation, shall not be ground for dismissal or for
reversal of a conviction, unless the court finds that the error
or omission prejudiced the accused I preparing his defense."
     Rule 3A:6(a) provides: "The indictment or information, in
describing the offense charged, shall cite the statute or
ordinance that defines the offense or, if there is no defining
statute or ordinance, prescribes the punishment for the offense.
Error in the citation of the statute or ordinance that defines
the offense or prescribes the punishments therefore, or omission
of the citation, shall not be grounds for dismissal of an
indictment or information, or for reversal of a conviction,
unless the court finds that the error or omission prejudiced the
accused in preparing his defense."

                                 - 7 -
missing, the cite to the statute supports the "definite written

statement" by incorporating the complete definition of the

crime.

     Additionally, an indictment lacking an element of the crime

charged is not void and relief will not lie if appellant did not

object to the indictment prior to the verdict if the appellant

was "fully aware of the 'cause and nature' of the offense for

which [he] was being tried and of which he was convicted."

McDougal v. Commonwealth, 212 Va. 547, 549, 186 S.E.2d 18, 20

(1972) (citing Forester v. Commonwealth, 210 Va. 764, 767, 173

S.E.2d 851, 854 (1970)) (indictment charging statutory burglary

failed to allege that entry was made in the nighttime did not

void the indictment).   The instant case is distinguishable from

Wilder and similar to Wall.   Unlike Wilder, the statute cited in

the indictment now before us proscribes criminal conduct of the

kind charged in the indictment.   The written statement merely

neglected an element, as the indictment in Wall did.     Thus, Wall

is more similar than Wilder to the instant case.

     We find no merit in appellant's argument that the

indictment under which he pled guilty was so defective as to be

in violation of the Constitution.   At trial, appellant did not

object to the Commonwealth's motion to amend the indictment from

a validly charged felony to the agreed misdemeanor under Code

§ 18.2-461.   He pled guilty to making a false report to a

law-enforcement officer.   The trial court determined that

                               - 8 -
appellant "fully understood the nature and effect of said plea and

of the penalties that may be imposed upon a conviction."

Petitioner did not raise any question as to the validity of the

indictment until three years and four months after the trial court

found him guilty.    While the indictment was not expertly drawn and

its language did not mirror exactly the language in the statute,

the language of the indictment was supported by the citation to

the code section which incorporated the statutory definition.

Thus, the indictment was sufficiently clear to give appellant

notice of the offense charged.    The trial court had jurisdiction

of his person and the crime charged.     His plea of guilty was to

making a false statement regarding the commission of a crime to a

law-enforcement officer, and his conviction was of that offense.

Appellant was fully aware of the nature of the offense for which

he was being tried and of which he was convicted.    "Under such

circumstances, no constitutional right of the accused was

invaded."   Smyth v. White, 195 Va. 169, 173, 77 S.E.2d 454, 456

(1953); see also Pettus v. Peyton, 207 Va. 906, 910, 153 S.E.2d

278, 281 (1967).    Accordingly, we affirm appellant's conviction.

                                                      Affirmed.




                                 - 9 -
