Present: All the Justices
CARLYN MALDONADO-MEJIA
OPINION BY
v. Record No. 130204 JUSTICE DONALD W. LEMONS
JANUARY 10, 2014
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider: (1) whether Carlyn
Maldonado-Mejia ("Maldonado-Mejia") was under indictment at
the time she sought to purchase a firearm; (2) whether she
intentionally and willfully provided false information on a
firearm purchase form in violation of Code § 18.2-308.2:2(K);
and (3) if not, whether the trial court erred in revoking her
active supervised probation under the terms of a "Disposition
Continuance Order" and finding her guilty of felony child
abuse and neglect.
I. Facts and Proceedings Below
On October 18, 2010, Maldonado-Mejia was indicted for
felony child abuse and neglect, in violation of Code §§ 18.2-
371.1(B) and 18.2-10. On November 5, 2010, she was arraigned
in the Circuit Court of Spotsylvania County ("circuit court")
and waived reading of the indictment. Maldonado-Mejia entered
into a plea agreement with the Commonwealth that among other
things provided:
I further understand that, the Circuit
Court will defer entry of any finding of
guilt in this matter and will suspend the
imposition of the sentence recommended in
paragraph 8 of this agreement, pending my
completion of the prescribed program(s).
I understand that I will be placed on
active, supervised probation. I
understand that successful completion of
the program will result in the dismissal
of the charges enumerated in this
document.
At her May 31, 2011 trial, Maldonado-Mejia made an Alford plea
and presented the plea agreement to the circuit court.
The circuit court accepted Maldonado-Mejia’s guilty plea,
entered it on the record, found facts sufficient to convict,
but expressly withheld a finding of guilt.
In an order entitled "Disposition Continuance Order" the
circuit court recited that the Commonwealth had:
[A]gree[d] to recommend that the Court
defer a finding of guilty for one year.
During that period of time, the defendant
shall keep the peace and be of good
behavior; be placed on active supervised
probation; and shall enter into and
complete any and all programs set forth by
the Department of Social Services. . . .
If the defendant has kept the peace, been
of good behavior and followed all other
conditions of the order of this court, the
treatment facility and probation, at the
end of one year from this date, the Court
shall dismiss the charge.
The circuit court placed Maldonado-Mejia on supervised
probation and imposed conditions outlined by the plea
agreement which included:
Should the defendant fail to abide by the
conditions of the plea agreement, she
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shall be found guilty of a FELONY
violation of 18.2-371.1(B) and sentenced
to 5 years with all but 6 months suspended
for a period of 5 years under the
following conditions: keep the peace and
be of good behavior; be placed on
supervised probation upon her release; the
Defendant will give a biological sample
for DNA analysis pursuant to the Code of
Virginia and cooperate fully in such
procedure under the direction and
supervision of her probation officer or a
member of the Sheriff’s Office; and waives
her Fourth Amendment rights against
unreasonable searches and seizures at any
time and by any law enforcement officer
during the period of 5 years from her
release from any incarceration.
In July 2011, Maldonado-Mejia attempted to purchase a
firearm. She completed a Bureau of Alcohol, Tobacco, and
Firearms form ("ATF form") which asked whether she was:
"[u]nder indictment or information in any court of a felony,
or any other crime, for which the judge could have imprisoned
[her] for more than one year." In response, Maldonado-Mejia
clearly marked, "No." The ATF form also asked, “Have you ever
been convicted in any court of a felony, or any other crime,
for which the judge could have imprisoned you for more than
one year, even if you received a shorter sentence including
probation?” Maldonado-Mejia again marked, “No.”
The state police investigated Maldonado-Mejia’s
application and discovered she had been indicted for child
neglect. On August 15, 2011, a Spotsylvania County grand jury
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indicted Maldonado-Mejia for willfully and intentionally
making a false statement on the ATF form. In October 2011,
she was tried and found guilty under Code § 18.2-308.2:2(K).
Because this conviction violated the conditions of her
supervised probation under the "Disposition Continuance
Order", the circuit court also convicted and sentenced her on
the earlier child neglect charge. Maldonado-Mejia was
sentenced to five years with all but six months suspended on
the child neglect charge and three months on the charge of
providing false information to purchase a firearm.
Maldonado-Mejia appealed her convictions to the Court of
Appeals of Virginia. On October 10, 2012, the Court of
Appeals issued a per curiam opinion holding that: 1)
Maldonado-Mejia made a false representation on the ATF form,
2) the evidence was sufficient for the trial court to find
that she intentionally lied on the ATF form, and 3) the
evidence was sufficient for the trial court to find that she
failed to comply with the conditions of the prior plea
agreement in the child neglect case. Thereafter, a three-
judge panel of the Court of Appeals affirmed the per curiam
opinion.
Maldonado-Mejia noted her appeal to this Court and we
awarded an appeal on the following assignments of error:
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1. The trial court erred by finding that Appellant provided
false information on the U.S. Department of Justice Bureau
of Alcohol, Tobacco, and Firearms (ATF) form to purchase a
firearm, as she was not under indictment or information for
a felony at the time of the incident. The Court of Appeals
erred in affirming the trial court and finding that the
Appellant remained under indictment when she filled out the
ATF form.
2. The trial court erred by finding that Appellant acted
intentionally and willfully, with criminal intent [sic] to
make a false statement. The Court of Appeals erred in
affirming the trial court and finding that Appellant acted
intentionally and willfully.
3. The trial court erred by finding Appellant guilty of felony
child neglect & abuse pursuant to the show cause, as the
evidence was insufficient for a conviction on the False
Statement charge. The Court of Appeals erred in affirming
the trial court and finding the trial cou[r]t's decision
was not plainly wrong or unsupported by evidence.
II. Analysis
A. Standard of Review
Maldonado-Mejia's first assignment of error presents a
legal question concerning the meaning of "under indictment."
Such a question is reviewed de novo. Smith v. Commonwealth,
282 Va. 449, 453-54, 718 S.E.2d 452, 454 (2011).
For Maldonado-Mejia's second and third assignments of
error, we review the sufficiency of the evidence in the light
most favorable to the Commonwealth, and only reverse the trial
court when its decision is plainly wrong or without evidence
to support it. Viney v. Commonwealth, 269 Va. 296, 299, 609
S.E.2d 26, 28 (2005).
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B. Maldonado-Mejia Remained "Under Indictment"
Maldonado-Mejia argues that her indictment was
extinguished upon making an Alford plea on May 31, 2011. She
claims that an indictment is only intended to inform the
criminal defendant of the nature and cause of the accusation
against her and upon acceptance and entry of her plea
agreement on the record she was no longer “under indictment.”
In support of this contention, Maldonado-Mejia cites two
federal court decisions interpreting other states’ laws. The
United States Court of Appeals for the Eighth Circuit noted in
discussing a Missouri case, "[T]he primary purpose of an
indictment or information is to give general notice to the
defendant of the charge against him." United States v. Hill,
210 F.3d 881, 883-84 (8th Cir. 2000) (quoting State v. Higdon,
774 S.W.2d 498, 500 (Mo. Ct. 1989)). See also United States v.
Hartsfield, 387 F.Supp. 16, 17 (M.D. Fla. 1975). However,
these cases are distinguishable because they interpret
statutory and common law schemes unique to Missouri and
Florida.
For the resolution of this case we must look to Virginia
law. Code § 19.2-231 provides:
If there be any defect in form in any
indictment, presentment or information, or
if there shall appear to be any variance
between the allegations therein and the
evidence offered in proof thereof, the
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court may permit amendment of such
indictment, presentment or information, at
any time before the jury returns a verdict
or the court finds the accused guilty or
not guilty, provided the amendment does
not change the nature or character of the
offense charged.
(Emphasis added.)
The practical import of this statute informs our holding that,
in Virginia, Maldonado-Mejia remained under indictment until
she was acquitted or convicted of the charge in the
indictment.
The expressly stated effect of the June 13, 2011 order of
the circuit court was to "defer . . . finding [Maldonado-
Mejia] guilty for one year." Although the circuit court
accepted Maldonado-Mejia’s guilty plea and entered it on the
record, this was not a formal adjudication of guilt. See
Starrs v. Commonwealth, 286 Va. __, __, __ S.E.2d __, __
(2013)(this day decided)("We therefore conclude that the
circuit court, upon accepting and entering Starrs' guilty
pleas in a written order, still retained the inherent
authority to withhold a finding of guilt, to defer the
disposition, and to consider an outcome other than a felony
conviction."). Consequently, Maldonado-Mejia was neither
convicted nor acquitted of child neglect when she filled out
the ATF form in July of 2011. She remained under indictment.
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C. Evidence of "Willfully and Intentionally"
Making a Materially False Statement
Code § 18.2-308.2:2(K) provides:
Any person willfully and intentionally
making a materially false statement on the
consent form required in subsection B or C
or on such firearm transaction records as
may be required by federal law, shall be
guilty of a Class 5 felony.
We recently held that Code § 18.2-308.2:2(K) applies to ATF
form 4473. Smith, 282 Va. at 454, 718 S.E.2d at 455.
In Smith, the defendant was arrested on a felony warrant
charging him with possession of marijuana with intent to
distribute. Id. at 452, 718 S.E.2d at 453. After his arrest
and release on bond, Smith's attorney sent him a letter
informing him that his case was certified to the grand jury
and would be set for trial on term day — which was November
13th. Id.
On November 13, 2007, the grand jury indicted Smith for
possession of marijuana with intent to distribute. Id. Two
days later Smith attempted to purchase a firearm. He filled
out an ATF form and clearly indicated that he was not
"currently under indictment." Id. At the time Smith filled
out the ATF form, he had not been contacted by his lawyer to
notify him of his indictment and he had not been arraigned by
the circuit court. Id. From this evidence, we concluded that
while Smith knew his criminal indictment was forthcoming, he
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did not know he was currently under criminal indictment when
he filled out the ATF form. Id. at 453, 718 S.E.2d at 455-56.
Therefore, we held that he did not willfully and intentionally
make a materially false statement on the firearm form. Id.
In Smith, we addressed Code § 18.2-308.2:2(K) and
observed:
"Willfully" is a word of many meanings
whose construction often depends upon
context. Bryan v. United States, 524 U.S.
184, 191 (1998). Judge Learned Hand has
been quoted as observing, off the bench:
"'willfully' . . . It's an awful word! It
is one of the most troublesome words in a
statute that I know." See United States v.
Hayden, 64 F.3d 126, 129, n.5 (3d Cir.
1995).
Smith, 282 Va. at 455 n.1, 718 S.E.2d at 452 n.1. We held:
"[T]he Commonwealth [must] prove, beyond a reasonable doubt,
as an element of the crime, that the defendant had actual
knowledge that his statement was false when he made it. There
must be evidence to support a finding that he knew the truth
but nevertheless intended to, and did, utter a falsehood."
Id. at 455, 718 S.E.2d at 455.
In contrast to the case presented against the defendant
in Smith, there was sufficient evidence in the present case to
support the circuit court’s finding that Maldonado-Mejia knew
she was under indictment when she completed the ATF form.
Unlike Smith, Maldonado-Mejia had already been arraigned. The
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circuit court asked her whether she understood the nature of
the crime with which she was charged and whether she wished to
have the indictment read to her in its entirety. Maldonado-
Mejia answered, "No, sir." Furthermore, at no point did the
circuit court instruct her that she had been acquitted or
convicted or that her indictment had been extinguished. Given
the totality of the evidence we cannot say the circuit court’s
judgment was plainly wrong or without evidence to support it.
Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786,
788 (2010); Code § 8.01-680.
D. The Conviction for Felony Child Neglect Was Proper
Because we affirmed Maldonado-Mejia's conviction under
Code § 18.2-308.2:2(K), the circuit court did not err when it
found that she violated the good behavior conditions of her
supervised probation outlined in the "Disposition Continuance
Order" entered June 13, 2011.
III. Conclusion
For the reasons stated, we hold that the Court of Appeals
did not err by affirming the judgments of the circuit court.
We will affirm the judgment of the Court of Appeals.
Affirmed.
JUSTICE McCLANAHAN, with whom JUSTICE MIMS joins, concurring.
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I concur in the judgment of the Court. With regard to
the majority's discussion in Part II.B., however, I write
separately to emphasize that the reason that there was no
formal adjudication of guilt is because the terms of the plea
agreement Maldonado-Mejia entered into with the Commonwealth
provided for a deferred disposition. Specifically, the plea
agreement stated that she would enter an Alford plea to the
charge of felony child neglect and that an actual finding of
guilt would not be made at the time of her May 31, 2011
hearing. Therefore, by accepting the terms of the plea
agreement between Maldonado-Mejia and the Commonwealth, the
circuit court continued the case for future disposition. Rule
3A:8(c)(3)(upon acceptance of plea agreement court shall
inform defendant of its judgment and sentence will embody the
disposition provided for in the agreement).
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