COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
Argued at Chesapeake, Virginia
ALBERT FERGUSON THOMAS
OPINION BY
v. Record No. 0706-01-1 JUDGE RICHARD S. BRAY
MARCH 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Edward L. Hubbard, Judge
Theophlise Twitty for appellant.
Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Albert Ferguson Thomas (defendant) was convicted upon a plea
of guilty to possession of a firearm by a convicted felon in
violation of Code § 18.2-308.2. The evidence disclosed defendant
had been previously convicted of burglary, a "violent felony"
pursuant to Code § 17.1-805, 1 and the trial court sentenced him
to the "minimum, mandatory term of imprisonment of five years"
in accordance with Code § 18.2-308.2(A). On appeal, defendant
challenges the sufficiency of the indictment to support the
mandatory sentence, complaining the predicate "violent felony"
was "an essential element of the offense" not specifically
1
The record also discloses a prior conviction for robbery,
and defendant challenges the designation of "common law robbery"
as a "violent felony." However, because he does not dispute
charged in the indictment. We disagree and affirm the
conviction.
I.
The relevant procedural history is uncontroverted. On
November 20, 2000, defendant entered a plea of guilty to an
indictment alleging, in pertinent part, that he, "[o]n or about
the 1st day of March, 2000, feloniously did knowingly and
intentionally possess a firearm, having been previously
convicted of a felony, in violation of [Code] § 18.2-308.2." By
agreement, the Commonwealth proceeded by a "synopsis" of the
evidence, which included, without objection, introduction of an
order memorializing a prior conviction of defendant for burglary,
a violation of Code § 18.2-92. At the conclusion of the summary,
the court inquired if defendant had "any questions or comments on
the statement of facts" and, hearing no response, "accept[ed]
[defendant's] plea of guilty" and found him guilty "as charged in
the indictment." Sentencing was delayed pending the preparation
of a presentence report.
The "Presentence Investigative Report" and related
"Sentencing Guidelines" reflected the prior burglary conviction,
a "violent felony" that triggered a "Sentencing Guidelines
Recommendation[]" of incarceration for five years, the
"MANDATORY MINIMUM" prescribed by Code 18.2-308.2(A). Defendant
such classification of burglary, we decline to address the
robbery issue.
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objected to the recommendation, complaining the indictment did
not specifically allege the existence of a previous "violent
felony" conviction as an element of the offense necessary to
trigger the "minimum, mandatory" sentence. The trial court
concluded the indictment was sufficient and sentenced defendant
to five years imprisonment, the statutorily mandated minimum.
II.
Code § 18.2-308.2 provides, in pertinent part:
A. It shall be unlawful for (i) any person
who has been convicted of a felony . . . to
knowingly and intentionally possess . . .
any (a) firearm . . . . Any person who
violates this section shall be guilty of a
Class 6 felony. However, any person who
violates this section by knowingly and
intentionally possessing or transporting any
firearm and who was previously convicted of
a violent felony as defined in § 17.1-805
shall not be eligible for probation, and
shall be sentenced to a minimum, mandatory
term of imprisonment of five years. 2 . . .
The minimum, mandatory terms of imprisonment
prescribed for violations of this section
shall not be suspended in whole or in part
and shall be served consecutively with any
other sentence. . . .
2
Code § 18.2-308.2 further provides, "[a]ny person who
violates this section by knowingly and intentionally possessing
or transporting any firearm and who was previously convicted of
any other felony shall not be eligible for probation, and shall
be sentenced to a minimum, mandatory term of imprisonment of two
years." (Emphasis added). Defendant does not dispute the
sufficiency of the indictment to support this lesser mandatory
minimum sentence.
Felons in possession of other weapons also proscribed by
Code § 18.2-308.2 are not subject to the minimum, mandatory
terms of imprisonment applicable to firearms but, rather, the
sentencing range of a Class 6 felony.
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(Emphasis added). Defendant contends the "violent felony"
sentencing component to Code § 18.2-308.2(A) creates a "grade of
the offense," thereby adding an "essential element" to the crime
that must be charged in the indictment. Otherwise, he reasons,
an accused is subjected to a mandated "enhanced punishment"
without proper notice of the necessary predicate. In response,
the Commonwealth characterizes the obligatory punishment as a
sentencing issue, distinct from the underlying offense and its
elements.
"[T]he 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
against his accuser." Morris v. Commonwealth, 33 Va. App. 664,
668, 536 S.E.2d 458, 460 (2000). See U.S. Const. amend. VI; Va.
Const. art. 1, § 8; Wilder v. Commonwealth, 217 Va. 145, 147,
225 S.E.2d 411, 413 (1976). Accordingly, Code § 19.2-220
provides, inter alia, that
[t]he indictment or information shall be a
plain, concise and definite written
statement . . . describing the offense
charged. . . . In describing the
offense, . . . the indictment or information
may state so much of the common law or
statutory definition of the offense as is
sufficient to advise what offense is
charged.
(Emphases added).
Complementing Code § 19.2-220, Rule 3A:6(a) directs "[t]he
indictment . . . cite the statute or ordinance that defines the
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offense or, if there is no defining statute or ordinance,
prescribes the punishment for the offense." Considered
together, "[t]he inference to be drawn from the provisions of
Code § 19.2-220 and Rule 3A:6(a) is clearly that incorporation
by . . . reference" of the statute cited in the indictment "is
contemplated by the Rule." Reed v. Commonwealth, 3 Va. App.
665, 667, 353 S.E.2d 166, 167 (1987) (citation omitted).
Accordingly, although an indictment need not recite the
penalty for the alleged offense, "when a statute contains more
than one grade of offense carrying different punishments, 'the
indictment must contain an assertion of the facts essential to
the punishment sought to be imposed.'" Sloan v. Commonwealth,
35 Va. App. 240, 246-47, 544 S.E.2d 375, 378 (2001) (quoting
Moore v. Commonwealth, 27 Va. App. 192, 198, 497 S.E.2d 908, 910
(1998)) (emphasis added); see also McKinley v. Commonwealth, 217
Va. 1, 4, 225 S.E.2d 352, 353-54 (1976). Hence, "grade[s]" of
offenses "described in the same Code section," "each carr[ying]
a different punishment," are not properly charged by an
indictment that only generally references conduct criminalized
by specific gradation. Hall v. Commonwealth, 8 Va. App. 350,
352, 381 S.E.2d 512, 513 (1989).
"When considering on appeal whether an indictment charged a
particular offense, we limit our scrutiny to the face of the
document." Moore, 27 Va. App. at 198, 497 S.E.2d at 910.
Viewed accordingly, the indictment in issue clearly and
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succinctly charged defendant with "knowingly and intentionally
possess[ing] a firearm, having been previously convicted of a
felony in violation of [Code] § 18.2-308.2." Such language
substantially mirrored Code § 18.2-308.2(A) and included an
express reference to the statute, thereby comporting with both
Code § 19.2-220 and Rule 3A:6(a). While Code § 18.2-308.2 is
comprised of three subsections, enumerated "A," "B," and "C,"
only subsection "A" outlaws conduct and prescribes related
penalties. Defendant, nevertheless, insists the mandatory
minimum penalty provisions of Code § 18.2-308.2(A) create
gradations of the primary offense, possession of a firearm by a
convicted felon, which necessitates allegations in the
indictment specific to the crime charged. 3
Defendant's argument, however, is belied by Code
§ 18.2-308.2(A), a statute intended to "prevent[] a person, who
is known to have committed a serious crime in the past, from
becoming dangerously armed, regardless of whether that person
uses, displays, or conceals the firearm." Jones v.
Commonwealth, 16 Va. App. 354, 358, 429 S.E.2d 615, 617, aff'd
3
At trial, defendant concurred in the trial court's
reasoning that Code § 18.2-308.2 was not a "recidivist" statute
but, rather, "a statute defining a new offense based on the fact
. . . somebody was previously convicted of a felony." Thus,
those principles peculiar to recidivist offenses are not in
issue. See, e.g., Ansell v. Commonwealth, 219 Va. 759, 250
S.E.2d 760 (1979); Patterson v. Commonwealth, 17 Va. App. 644,
440 S.E.2d 412 (1994); Stubblefield v. Commonwealth, 10 Va. App.
343, 392 S.E.2d 197 (1990).
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on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993). See
also Armstrong v. Commonwealth, 36 Va. App. 312, 318, 549 S.E.2d
641, 644 (2001) (en banc). The proscribed conduct, together
with the attendant elements, is clearly defined in the initial
sentence of the statute and punishable as "a Class 6 felony."
Consistent with the intendment of the enactment, an accused
having been previously convicted of a "violent felony" is
subject to a period of mandatory incarceration, a sentence
within the range of a Class 6 felony but beyond trial court
discretion. Contrary to defendant's contention, such disparate
penalties do not spawn gradations of the offense. The crime is
not defined by the penalty. Cf. Apprendi v. New Jersey, 530
U.S. 466 (2000); McMillan v. Pennsylvania, 477 U.S. 79 (1986).
The punishment/gradation dichotomy is made more apparent
when the unitary prohibition of Code § 18.2-308.2(A) is
contrasted with gradation statutes examined in McKinley, Hall,
and Moore. In McKinley, the accused was before the court on an
indictment alleging abduction in violation of a specified
statute, an offense punishable in accordance with a companion
provision. McKinley, 217 Va. at 2, 225 S.E.2d at 353-54.
However, he was wrongfully convicted and sentenced for
"abduction with intent to defile," misconduct embraced by a
statute distinct from the offense at indictment. Id. at 3-4,
225 S.E.2d at 353-54. The defendant in Hall was indicted for
"the use of a sawed-off shotgun in the commission of a 'crime,'"
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a Class 4 felony in violation of Code § 18.2-300(B), but
improperly convicted of using such weapon "in the commission of
a crime of violence," a Class 2 felony proscribed by Code
§ 18.2-300(A). Hall, 8 Va. App. at 351, 381 S.E.2d at 512-13.
The appellant in Moore was erroneously sentenced for possession
of "a firearm while simultaneously possessing with intent to
distribute" certain controlled substances in violation of Code
§ 18.2-308.4(B), a "separate and distinct" felony from
possession of a firearm while in possession of cocaine, conduct
alleged in the indictment and proscribed by Code
§ 18.2-308.4(A). Moore, 27 Va. App. at 195-97, 497 S.E.2d at
909-10. In each instance, unlike Code § 18.2-308.2, the
legislature criminalized discrete conduct, oftentimes aggravated
by a "'gradation or nexus crime,'" but always differentiated
both by elements and penalty. See Commonwealth v. Smith, 263
Va. 13, 18, 557 S.E.2d 223, 225 (2002).
Thus, defendant, before the trial court on an indictment
that alleged conduct in violation of Code § 18.2-308.2 and in
compliance with Code § 19.2-220 and Rule 3A:6(a), entered a plea
of guilty to the specified offense. Inarguably aware of the
previous felony that inculpated him and the attendant mandatory,
minimum penalty implicated upon proof of such conviction, he
subjected himself to punishment within the prescribed penalty
range. Under such circumstances, the court correctly found
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defendant violated Code § 18.2-308.2 and imposed the minimum
punishment mandated by statute. 4
Accordingly, we affirm both the conviction and related
sentence.
Affirmed.
4
Defendant made no motion for leave to withdraw his guilty
plea pursuant to Code § 19.2-296.
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