David Bomber

CONDITIONAL PARDON – PART 2, by David Bomber

PETITION FOR CONDITIONAL PARDON

SUMMARY OF PETITION

This petition is a plea for mercy to the Governor of Virginia by David Michael Bomber, hereinafter the Petitioner. The Petitioner, who is currently a prisoner in the Virginia Dept. of Corrections, and is serving a sentence of 41 years and 60 days for aggravated malicious wounding, second-degree murder, three (3) counts of assault & battery, hit & run, and reckless driving, is seeking a conditional pardon asking that the sentence for aggravated malicious wounding be pardoned.

I. REASONS FOR GRANTING THE PETITIONER A CONDITIONAL
PARDON

For the following reasons the Petitioner is asking that the Governor grant him a conditional pardon for the conviction of aggravated malicious wounding in Roanoke County Circuit Court (Ex. 1).

1. THE PETITIONER IS BEING PUNISHED CUMULATIVELY FOR THE
SAME ACT

The Petitioner was indicted and convicted for both aggravated malicious wounding and second-degree murder. Both indictments allege that the offense conduct occurred on June 5th, 2010, resulting from the same victim, Larry Michael Worrell.

Accordingly, both Article I, Section 8 of the Constitution of Virginia and the 5th Amendment of the U.S. Constitution provides in relevant part, “that in criminal prosecutions a man hath the right…” to not “be put twice in jeopardy for the same offense” (quoting Constitution of Virginia).

In this matter the [trial judge] should have instructed the jury that if it found the Petitioner guilty under the indictment which charged second-degree murder, it should not have charged further the other indictment of aggravated malicious wounding. See also Article 1, Section 9 of the Constitution of Virginia and the 8th Amendment of the U.S. Constitution, which also prohibits against “cruel and unusual punishments.”

There is however a distinct possibility that the jury felt that if they found the Petitioner guilty on one indictment then they must find the Petitioner guilty on the other indictment. Interestingly, on July 14th, 2011, during the penalty phase of the trial the jury posed the question to the judge whether they could recommend that the Petitioner serve his sentences concurrently or consecutively. In which case, the trial judge replied that they could not.

2. THE PETITIONER IS BEING HELD TO A DIFFERENT STANDARD OF
LAW

It is apparent from the Court’s of Appeals opinion that there is a certain degree of ambiguity in the language of Code § 18.2-51.2. The Court noted that, “Appellate courts must ‘first consider whether the legislative intent is clear from the face of the statue or the legislative history…’ ” The Court however went on to note that, “Bomber writes that there ‘is no explicit or implicit legislative authorization for the same conduct in either… Code § 18.2-51.2… or Code § 18.2-32.’ ” Please take notice that the Court of Appeals noted that they “agree that there is no explicit legislative authorization.” The Court further stated that they cannot “ascertain the legislative intent as to the double jeopardy issue before us by a plain reading of the statues or by the legislative history.”

A. VIRGINIA CODE §§ 18.2-51.2 & 18.2-32 DEFINED

i. Virginia Code § 18.2-51.2 provides as follows:

a. If any person maliciously shoots, stabs, cuts, or wounds, any other
person, or by any means causes bodily injury with the intent to maim,
disfigure, disable, or kill, he shall be guilty of a Class 2 Felony if the victim
is thereby severely injured and is caused to suffer permanent and
significant physical impairment.

b. If any person maliciously shoots, stabs, cuts, or wounds, any other
woman who is pregnant, or by any means causes bodily injury with the
intent to maim, disfigure, disable, or kill the pregnant woman or cause
the involuntary termination of her pregnancy, he shall be guilty of a
Class 2 Felony if the victim is thereby severely injured and is caused to
suffer permanent and significant physical impairment.

c. For purposes of this section, the involuntary termination of a
woman’s pregnancy shall be deemed a severe injury and a permanent
and significant physical impairment.

ii. Virginia Code § 18.2-32 provides as follows:

Murder, other than capital murder, by poison, lying in wait,
imprisonment, starving, or by any willful, deliberate, and premeditated
killing, or in the commission of, or attempt to commit arson, rape,
forcible sodomy, animate or inaminate object sexual pentration, robbery,
burglary, or abduction, except as provided in Section 18.2-31, is murder
of the first degree, punishable as a Class 2 Felony.

All murder other than capital murder and murder in the first degree is
murder of the second degree and is punishable by confinement in a
state correctional center for not less than five years nor more than
forty years.

Because the legislative intent for the imposition of multiple punishments was not clearly defined in either statue the Court should have vacated the conviction for aggravated malicious wounding. See De’Armond v. Commonwealth, 51 Va. App. 26 (2007)(“[O]nly when a ‘penal statue is unclear’ do courts apply the rule of lenity and strictly construe the statue in the criminal defendant’s favor”).

Thank you for taking the time to read this. I would love to hear from you directly, and of course all feedback is encouraged and welcomed!

Email me by submitting my name or Virginia state ID number (1130793)
http://www.jpay.com

Contact me via snail mail:

David Bomber #1130793
Nottoway Correctional Center
P.O. Box 488
Burkeville, Va. 23922

Connect with me on facebook:
https://www.facebook.com/profile.php?id=100010160976893

Categories: David Bomber, law

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