B. THE DISJUNCTIVE USE OF THE WORD “OR”
As Justice Kelsey noted in his dissent in Barr v. Atl. Coast Pipeline, 295 Va. 522 (2018), the “linguistic default is that “and” is conjunctive and “or” is disjunctive.” See also Patterson v. Commonwealth, 216 Va. 306 (1975); Williams v. Commonwealth, 61 Va. App. 1 (2012); U.S. v. Woods, 571 U.S. 31 (2013); Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (“The conjunctions and or are two of the elemental words in the English language. Under the conjunctive/disjunctive canon, and combines items while or creates alternatives”). “[T]he use of the disjunctive word “or,” rather than the conjunctive “and,” signifies the availability of alternative choices.” Rose v. Commonwealth, 53 Va. App. 505 (2009)(quoting Lewis v. Commonwealth, 267 Va. 302 (2004)).
The aggravated malicious wounding statue provides in relevant part that a person must have “the intent to maim, disfigure, disable, or kill.” Here it can be demonstrated that the disjunctive use of the word “or” delineates that the Petitioner should have only been put on trial for the greater offense, the second-degree murder indictment.
Merriam-Webster’s Dictionary of Law defines intent as, “the design or purpose to commit a wrong or criminal act.”
It is noteworthy to point out that the Court of Appeals also stated that, “The murder may be accomplished through any of the same methods as a malicious wounding, or others, such as poisoning, strangulation, or starving.” Here the Court erred by referencing poisoning, strangulation, and starving, as these are deliberate acts found specifically in first-degree murder in Code § 18.2-31. However, the Court overlooks that under the provisions set forth in Code § 18.2-32 that the ONLY WAY to commit second-degree murder is by a malicious wounding of the victim.
Indeed, there is a casual relation between a wounding and second-degree murder. However, as the Petitioner asserts his actions were strictly in fear for his safety and out of necessity, and it certainly was not the Petitioner’s intent to commit either aggravated malicious wounding or second-degree murder – or both with a single stroke. Further, it is a fact that the aggravated malicious wounding was directly attributed to the victim’s passing. This of course begs the question, why is the Petitioner serving two distinct and separate sentences for a single stabbing?
Similarly, in Brown v. Commonwealth, 222 Va. 111 (1981), the accused was indicted for attempted murder and for malicious wounding [of the same victim]. Yet, the Supreme Court of Virginia vacated the lesser-included offense. As Justice Benton noted in his dissent in Coleman v. Commonwealth, 1999 Va. App. Lexis 445 concerning Brown, “every wounding accomplished in the same transaction with the intent to kill constitutes an offense containing the same elements as attempted murder”; See also Buchanan v. Commonwealth, 238 Va. 389 (1989).
In sum, the Petitioner is asking the Governor to consider vacating the sentence for aggravated malicious wounding.
3. THE PETITIONER’S SENTENCE EXCEEDS HIS SENTENCING
GUIDELINES
On November 8th, 2011, probation officer Andrew J. Martin presented the Roanoke County Circuit Court with a Presentence Investigative Report, which included the Petitioner’s recommended sentencing guidelines (Ex. 2). According to the guidelines, the recommended sentencing range called for a sentence of 9 years, 1 month to 20 years, 4 months, with a midpoint of 16 years, and 11 months.
Pursuant to Virginia Code § 19.2-298.01(b), a written explaination is required by any judge that departs from the guidelines.
In this matter a written explanation was not given by Judge Doherty as to why he sentenced the Petitioner to 41 years and 60 days. Because of this the Petitioner is asking the Governor to modify his sentence to such that falls within the Petitioner’s recommended guidelines.
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
