Mouberry v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia

THOMAS CLINTON MOUBERRY
OPINION BY
v. Record No. 2997-01-2 JUDGE D. ARTHUR KELSEY
JANUARY 21, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENE COUNTY
Daniel R. Bouton, Judge

Helen E. Phillips for appellant.

Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

On August 28, 2001, a jury convicted the appellant, Thomas

Clinton Mouberry, of possessing a firearm after having been

convicted of a felony in violation of Code § 18.2-308.2(A). The

trial judge instructed the jury on the mandatory two-year minimum

sentence prescribed by Code § 18.2-308.2(A), and the jury fixed

Mouberry's punishment at two years in prison.

Mouberry contends that the trial judge erred by instructing

the jury on the mandatory minimum penalty provisions of Code

§ 18.2-308.2(A). Instead, Mouberry argues, the court should have

instructed the jury on the general sentencing options for a Class

6 felony as set forth in Code § 18.2-10(f). Mouberry further

insists that the trial court erred by imposing the jury's
recommended sentence and by not reducing it below the mandatory

minimum term dictated by Code § 18.2-308.2(A). Finding Mouberry's

arguments meritless, we affirm.

I.

On September 10, 2000, a sheriff's deputy stopped Mouberry on

a routine traffic investigation and noticed a .22 caliber rifle

behind the seat of the vehicle he was operating. While checking

Mouberry's license, the deputy learned that he had a prior

non-violent felony conviction. Mouberry was charged with the

illegal possession of a firearm by a felon. See Code

§ 18.2-308.2(A).

During the sentencing phase of the trial, the trial court

instructed the jury to "fix the defendant's punishment at: (1) A

specific term of imprisonment, but not less than two (2) years nor

more than five (5) years." This instruction took into account the

statutory two-year mandatory minimum sentence required by Code

§ 18.2-308.2(A). The relevant portion of the statute provides:

It shall be unlawful for (i) any person who
has been convicted of a felony . . . to
knowingly and intentionally possess or
transport any 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. Any
person who violates this section by

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 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. 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.

Code § 18.2-308.2(A). Mouberry objected to the sentencing

instruction, arguing that Code § 18.2-308.2(A) defines this

offense as a Class 6 felony and thus the instruction should give

the jury the option to recommend incarceration at any level less

than five years —— the range prescribed for Class 6 felonies by

Code § 18.2-10(f). 1

1
Mouberry's alternative sentencing instruction tracks Code
§ 18.2-10(f).

You have found the defendant guilty of the
felony of possessing a firearm after having
been convicted of a felony. Upon
consideration of all the evidence you have
heard, you shall fix the defendant's
punishment at:

(1) A specific term of imprisonment, but
not less than one (1) year nor more
than five (5) years; or
(2) Confinement in jail for a specific
time, but not more than twelve (12)
months; or
(3) A fine of a specific amount, but not
more than $2,500.00; or
(4) Confinement in jail for a specific
time, but not more than twelve (12)
months, and a fine of a specific
amount, but not more than $2,500.00.

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 After reviewing Code § 18.2-308.2(A), the trial court refused

Mouberry's instruction and overruled his objections to the

Commonwealth's instruction. The trial judge stated that

although the offense is generally identified
as a Class Six felony, the language of the
statute clearly indicates the intention of
the legislature that in cases of this nature
. . . the mandatory minimum term of
imprisonment two years would have to take
precedence over any other type of punishment
provided for in the general provision of
Class Six felonies.

After receiving the Commonwealth's instruction authorizing an

incarceration term between two to five years, the jury fixed

punishment at two years.

At the sentencing hearing, the trial judge reiterated that

"the discretion of the court is either nonexistent or limited

severely" given the mandatory minimum term. "The law is such

that the legislature has determined that a mandatory minimum of

two years is the appropriate minimum punishment for a sentence

for an offense of this type and the jury, in effect, has

evaluated it on that basis." Disagreeing with the trial court's

interpretation, Mouberry appeals.

II.

When reviewing jury instructions, an appellate court must

ensure that the law has been "clearly stated" and that the

"instructions cover all issues" fairly raised by the evidence.

Tice v. Commonwealth, 38 Va. App. 332, 339, 563 S.E.2d 412, 416

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(2002) (citation omitted); see also Arnold v. Commonwealth, 37

Va. App. 781, 787, 560 S.E.2d 915, 917 (2002); Hudspith v.

Commonwealth, 17 Va. App. 136, 137, 435 S.E.2d 588, 589 (1993). A

trial court should instruct the jury, when requested to do so,

"'on all principles of law applicable to the pleadings and the

evidence.'" Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d

506, 508 (1979) (quoting Taylor v. Commonwealth, 186 Va. 587, 592,

43 S.E.2d 906, 909 (1947)). An instruction that provides "a

correct statement of the law is one of the 'essentials of a fair

trial.'" Hucks v. Commonwealth, 33 Va. App. 168, 174, 531 S.E.2d

658, 616 (2000) (quoting Dowdy, 220 Va. at 116, 255 S.E.2d at

508). No instruction should be given that "incorrectly states the

applicable law or which would be confusing or misleading to the

jury." Bruce v. Commonwealth, 9 Va. App. 298, 300, 387 S.E.2d

279, 280 (1990).

A.

Mouberry argues that he was "entitled to have the jury

instructed on the full range of punishment for a Class 6 felony

and to have the sentencing court consider the same range of

punishment." This conclusion follows, Mouberry asserts, from the

fact that "the General Assembly did not remove language which

specified the class of the offense, when it amended § 18.2-308.2

in 1999." Put another way, Mouberry contends that the language

defining the offense as a Class 6 felony generates an ambiguity in

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the language of the statute, which, in turn, creates a conflict

between Code §§ 18.2-10(f) and 18.2-308.2(A). From there,

Mouberry invites us to resolve the ambiguity by invalidating the

conflicting portions of § 18.2-308.2(A) and by ruling that the

general sentencing provisions of § 18.2-10(f) control.

Absent an ambiguity in the statutory language, "there is no

room for interpretation." Chesapeake Hosp. Auth. v. Commonwealth,

262 Va. 551, 562, 554 S.E.2d 55, 60 (2001) (citing Brown v.

Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)). 2 An

ambiguity exists only "when the language is difficult to

comprehend, is of doubtful import, or lacks clearness and

definiteness." Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84,

87 (1985). In other words, statutory language "'is ambiguous if

it admits of being understood in more than one way or refers to

two or more things simultaneously.'" Gen. Trading v. Motor

2
We place less faith in the canons of construction than
Mouberry apparently does. "For one thing, canons are not
mandatory rules." Chickasaw Nation v. United States, 534 U.S.
84, 94 (2001). "They are guides that 'need not be conclusive.'"
Id. (quoting Circuit City Stores, Inc. v. Adams, 532 U.S. 105,
115 (2001)). Indeed, specific canons "are often countered . . .
by some maxim pointing in a different direction." Id.
Consequently, canons of construction are merely "designed to
help judges determine the Legislature's intent as embodied in
particular statutory language." Id. Where that intent appears
obvious upon a plain reading of the statute, canons of
construction play an unnecessary role in the interpretative
task. Virginia courts, therefore, "do not resort to the rules
of statutory interpretation where, as here, language contained
in a statute is free from ambiguity." Wilder v. Attorney Gen.,
247 Va. 119, 124, 439 S.E.2d 398, 401 (1994).

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Vehicle Dealer Bd., 28 Va. App. 264, 269, 503 S.E.2d 809, 812

(1998) (quoting Brown, 229 Va. at 321, 330 S.E.2d at 87).

When the General Assembly uses "words of a plain and definite

import, courts cannot assign to them a construction that would be

tantamount to holding that the General Assembly intended something

other than that which it actually expressed." Mozley v.

Prestwould Bd. of Dirs., 264 Va. 549, 554, 570 S.E.2d 817, 820

(2002) (citations omitted); Lee County v. Town of St. Charles, 264

Va. 344, 348, 568 S.E.2d 680, 682 (2002). The words of a statute

should be given "their common, ordinary and accepted meaning"

absent a contrary intent by the legislature. Germek v. Germek, 34

Va. App. 1, 8, 537 S.E.2d 596, 600 (2000) (citation omitted).

In our view, Mouberry finds an ambiguity in Code

§ 18.2-308.2(A) where none exists. After generally classifying

the offense as a "Class 6 felony," the very next word in the

statute is "However." 3 It could have just as easily been

"provided that" or "but" or "in any event." A general proposition

has been stated and on its heels comes a specific exception.

Here, the exception mandates two tiers of minimum, mandatory

sentences: a two-year term for prior non-violent felonies, and a

five-year term for prior violent felonies. Code § 18.2-308.2(A),

3
See generally American Heritage Dictionary 626 (2d College
ed. 1985) (as a conjunction, "however" denotes "1. Nevertheless;
yet" and "2. Although; notwithstanding that").

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therefore, does not contradict Code § 18.2-10(f). In complete

harmony, the former simply qualifies the latter.

Indeed, in 1999, the General Assembly amended Code

§ 18.2-308.2(A) to ensure that no legitimate confusion could exist

on this subject. See 1999 Va. Acts, ch. 829. Prior to the 1999

amendment, the third sentence of subsection (A) provided that a

"violation of this section shall be punishable as Class 6 felony."

(Emphasis added). The 1999 amendment changed the text of this

sentence to state that any "person who violates this section shall

be guilty of a Class 6 felony." (Emphasis added). In the

remainder of the statute, the 1999 amendment made clear that the

offense would nonetheless be punishable pursuant to one of two

mandatory minimum terms. Id.; see also Askew v. Commonwealth, 38

Va. App. 718, 725-26, 568 S.E.2d 403, 407 (2002) (similar analysis

governs Code § 18.2-308.4's mandatory minimum terms).

By urging us to find § 18.2-308.2(A) ambiguous or in conflict

with other statutes, Mouberry invites us to render substantial

portions of Code § 18.2-308.2(A) meaningless. To be sure, if

followed through to its conclusion, the argument would mandate

that we nullify the mandatory sentence requirement. An

extraordinary request by any measure, Mouberry's argument

presupposes a power in the judiciary that simply does not exist.

"Any such change to the statute must be a legislative, rather than

a judicial, undertaking." Vaughn, Inc. v. Beck, 262 Va. 673, 679,

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554 S.E.2d 88, 91 (2001) (citation omitted). "Interpretations

that 'rewrite statutes' are not permitted." Johnson v.

Commonwealth, 37 Va. App. 634, 640, 561 S.E.2d 1, 4 (2002)

(quoting Frias v. Commonwealth, 34 Va. App. 193, 199, 538 S.E.2d

374, 376 (2000)).

Mouberry also argues that § 18.2-14 conflicts with the trial

court's construction of the punishment provisions of

§ 18.2-308.2(A). Section 18.2-14 provides that offenses "for

which punishment is prescribed without specification as to the

class of the offense, shall be punished according to the

punishment prescribed in the section or sections thus defining the

offense." Because § 18.2-308.2(A) is an offense for which

punishment is prescribed with specification as to the class of the

offense, Mouberry argues, § 18.2-14 requires that it not be

punished according to the punishment prescribed in the section

defining the statute. For two reasons, we disagree. First, Code

§ 18.2-14 applies only to those statutes not containing a specific

offense class. Second, in any event, Code § 18.2-14 does not

address situations where, as here, a statute includes both an

offense class and a prescribed punishment.

B.

The plain meaning of Code § 18.2-308.2(A) also undermines

Mouberry's second argument, that the trial court erred at the

sentencing hearing by imposing the mandatory minimum term rather

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than considering lesser options available under Code § 18.2-10(f).

The trial court correctly held that its discretion to impose a

sentence below Code § 18.2-308.2(A)'s mandatory two-year term was

"nonexistent." See generally In re: Commonwealth of Virginia, 229

Va. 159, 163, 326 S.E.2d 695, 697 (1985) ("Clearly, therefore, by

prescribing a mandatory sentence, the General Assembly has

divested trial judges of all discretion respecting punishment.").

We acknowledge that "many question the wisdom of mandatory

minimum sentencing." Harris v. United States, 536 U.S. ___, ___,

122 S. Ct. 2406, 2420 (2002). Concerns about the "'propriety,

wisdom, necessity and expediency'" of legislation, however, can

only be resolved by the legislative branch of government. Willis

v. Mullett, 263 Va. 653, 658, 561 S.E.2d 705, 709 (2002) (quoting

City of Richmond v. Fary, 210 Va. 338, 346, 171 S.E.2d 257, 263

(1969)). "This Court's function is not to pass on the wisdom of

legislation." Dale v. City of Newport News, 18 Va. App. 800, 802,

447 S.E.2d 878, 879 (1994).

III.

In sum, the trial court properly instructed the jury to

recommend a sentence no lower than the two-year mandatory minimum

term required by Code § 18.2-308.2(A). The trial court also did

not err in imposing the two-year sentence recommended by the jury.

Affirmed.

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