COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia
BARRY TURNER
OPINION BY
v. Record No. 0938-01-1 JUDGE RICHARD S. BRAY
AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
Michael J. Lutke (Office of the Public
Defender, on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Barry Turner (defendant) was convicted by a jury for
possession of a firearm by a convicted felon in violation of Code
§ 18.2-308.2. In proof of the predicate prior felony, the
Commonwealth relied upon the earlier conviction of defendant by
general court-martial for "Housebreaking," in violation of Article
130, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 930
(1998), 1 while he served in the armed forces. For purposes of
1
10 U.S.C. § 930 (1998), entitled "Housebreaking,"
provides:
Any person subject to this chapter who
unlawfully enters the building or structure
of another with intent to commit a criminal
offense therein is guilty of housebreaking
and shall be punished as a court-martial may
direct.
sentencing, the trial court classified the previous offense a
"violent felony" pursuant to Code § 18.2-308.2(A) and companion
Code § 17.1-805(C), thereby triggering the attendant "minimum,
mandatory term of imprisonment of five years." On appeal,
defendant contends the predicate offense was not a felony within
the intendment of the statute but, if so, not a violent crime.
Finding the prior offense constituted a felony, we affirm the
conviction. However, because the crime was not a "violent felony"
contemplated by statute, we reverse the sentence and remand for
resentencing.
I.
For purposes of appeal, defendant does not dispute he was
found in possession of a firearm on July 3, 2000, by Southampton
County Deputy Sheriff Joseph M. Blythe. An initial investigation
by Blythe "to see if [the weapon] was stolen" "came back
negative," and it was returned to defendant. Blythe also
"check[ed] [defendant's] record," but the evidence does not
disclose the results. However, "after the case was sent to the
Commonwealth," defendant was charged with the instant offense, and
Blythe recovered the firearm from his residence.
Following indictment, the Commonwealth filed a pretrial
motion seeking "a . . . determination . . . concerning whether a
military court-martial for housebreaking constitutes a 'violent
felony' as contemplated by Code §§ 18.2-308.2 and 17.1-805."
Testifying for the Commonwealth at the related hearing, Thomas J.
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Lambert, "legal and hearing services officer for the Virginia
Department of State Police," explained, without objection, that
military "offenses," "rules of evidence" and "the like" are "set
out" in the "Rules of Courts-Martial," "the regulatory authority
based upon Title 10 of the United States Code," the UCMJ. Lambert
noted that military justice does not identify offenses as felonies
or misdemeanors, but jurisdictional distinctions between a
"general" and "special" court-martial differentiate crimes by
tribunal. A general court-martial, "the . . . military equivalent
of a jury," "may award any punishment . . . up to and including
the death penalty" and "dishonorable discharge," while penalties
before a "special court-martial" are limited to "[s]ix months
confinement," loss of pay, and "bad conduct discharge."
Upon review of the "paperwork" incident to the "general
court-martial" of defendant, Lambert testified defendant was
convicted of "unlawful entry . . . housebreaking," a crime with a
"[m]aximum punishment" under the UCMJ of "five years confinement."
Accordingly, the Commonwealth contended the offense was a "serious
crime punishable by imprisonment for more than one year . . . or
by death," the "standard definition" of a felony consistent with
Code §§ 18.2-8, -9 and –10. In response, defendant argued
"Housebreaking" under the UCMJ was not a felony contemplated by
Code § 18.2-308.2(A) and clearly not a "violent felony."
The court initially ruled the UCMJ offense constituted a
felony under Virginia law, although "not a violent felony"
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implicating the attendant mandatory punishment. However, upon
motion to reconsider by the Commonwealth on the morning of trial,
the court found "Housebreaking" was "a substantially similar
offense to statutory burglary, . . . a violent offense by
definition under [Code §] 17.1-805, and therefore, . . . a
violent felony as defined by . . . [Code §] 18.2-308," "set[]
aside" the earlier ruling and proceeded with trial.
In proof of the requisite prior conviction, the Commonwealth
relied upon the UCMJ conviction in issue, introducing into
evidence, without objection, copies of a "Charge Sheet," a "SJA
[Staff Judge Advocate] Post-Trial Recommendation," and a "General
Court-Martial Order," a document described by Lambert as "the
equivalent of a conviction order." The order recites defendant
was found "Guilty" of "Housebreaking" in violation of Article 130,
UCMJ, 10 U.S.C. § 930 by a "general court-martial" of the United
States Army, resulting in punishment that included "reduc[tion] to
the grade of E1, confinement for two months and a bad-conduct
discharge."
Defendant testified he joined the Army in August of 1997,
"got caught housebreaking in 1998," was "court-martialed" and
received a "bad conduct discharge." He did not "remember" mention
of "a felony" during the proceedings. Defendant admitted
purchasing the offending firearm from Norman E. Fanny, a licensed
dealer, completing the "forms" necessary to the transaction and
returning the following day to "[p]ick[] it up," the sale having
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been approved without incident. Fanny corroborated defendant's
testimony with respect to his purchase of the offending weapon and
recalled a like transaction with defendant several months earlier.
At the conclusion of the evidence, defendant renewed an
earlier motion to strike, challenging the sufficiency of the
evidence to establish either the existence of a requisite prior
felony conviction or an offense implicating the related mandatory
punishment. The trial court, however, overruled the motion and
submitted the case to the jury upon instructions that included the
"fixed punishment of five years in the penitentiary," mandated by
prior conviction for a "violent felony." The jury subsequently
found defendant guilty of the instant crime and, consistent with
the instruction, recommended the required punishment. After
considering a pre-sentence report, the court imposed the
prescribed sentence, resulting in this appeal.
II.
Code § 18.2-308.2(A) provides, in pertinent part:
It shall be unlawful for (i) any person who
has been convicted of a felony . . . to
knowingly and intentionally possess or
transport any firearm . . . .
Defendant first contends the court erroneously determined
"Housebreaking," as proscribed by the UCMJ, a "felony" under Code
§ 18.2-308.2(A), arguing, "any conviction other than a crime
labeled as a felony would go beyond the plain language of the
statute." We disagree.
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A "felony" is generally defined as "[a] serious crime
usually punishable by imprisonment for more than one year or by
death." Black's Law Dictionary 633 (7th ed. 1999); see also
Webster's Ninth New Collegiate Dictionary 456 (1983) (defining
"felony" as "a crime for which the punishment in federal law may
be death or imprisonment for more than one year"); 1 Charles E.
Torcia, Wharton's Criminal Law § 19 (15th ed. 1993) ("An offense
. . . is a felony if it is punishable by imprisonment for more
than one year . . . ."). Accordingly, "the grade of the offense
is fixed by the punishment." Bell v. Commonwealth, 167 Va. 526,
531, 189 S.E. 441, 443 (1937). Thus, in Virginia, "[o]ffenses
are either felonies or misdemeanors. Such offenses as are
punishable with death or confinement in a state correctional
facility are felonies; all other offenses are misdemeanors."
Code § 18.2-8. Code § 18.2-9 categorizes felonies from "Class
1" to "Class 6," with related sentencing ranges from
"imprisonment for not less than one year" to "death, or
imprisonment for life." Code § 18.2-10. 2
Here, a conviction for "Housebreaking" under Article 130,
UCMJ, 10 U.S.C. § 930 (1998), carries a "[m]aximum punishment"
of "confinement for five years," together with "[d]ishonorable
2
A discretionary penalty of "confinement in jail for not
more than twelve months and a fine of not more than $2,500,
either or both," expressly permitted for "Class 5 felonies" and
"Class 6 felonies," clearly does not reduce such offenses to a
misdemeanor. Code § 18.2-10(e) and (f).
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discharge, [and] forfeiture of all pay and allowances," a
penalty clearly consistent with a felony in Virginia. The trial
court, therefore, correctly classified the UCMJ offense a
"felony" for purposes of Code § 18.2-308.2(A). 3
III.
Defendant next contends the evidence was insufficient to
support his conviction. Because his purchase of the offending
weapon from Fanny had been approved following the requisite
"legal procedures," and Deputy Blythe did not arrest him "on the
night in question," and "the term 'felony' was never discussed
3
Other states have reached a like result in classifying
convictions under the UCMJ. See, e.g., Esters v. State, 480
So. 2d 615 (Ala. Crim. App. 1985) (prior court-martial
conviction may enhance punishment under Alabama's Habitual
Felony Offender Act, provided crime is a felony in Alabama);
People v. Calderon, 23 Cal. Rptr. 62 (Cal. Ct. App. 1962)
(conviction by court-martial may be treated by state courts as
prior felony conviction for purpose of enhancing punishment);
Scott v. United States, 392 A.2d 4 (D.C. 1978) (where military
offense is equivalent to forum-state felony, court-martial
conviction may increase sentence); State v. Wright, 598 So. 2d
493 (La. Ct. App. 1992) (court did not err in considering prior
court martial conviction in sentence because crime a felony in
Louisiana); People v. Williams, 432 N.Y.S.2d 121 (N.Y. App. Div.
1980) (permissible to use prior court-martial conviction to
enhance sentence upon convicted felon); People v. Benjamin, 184
N.Y.S.2d 1 (N.Y. App. Div. 1959) (court-martial conviction for
any crime a felony under New York law would constitute a prior
conviction for the purpose of sentence enhancement); Millwood v.
State, 721 P.2d 1322 (Okla. Crim. App. 1986) (conviction arising
from general court-martial proceedings may enhance punishment
for subsequent offenses committed in Oklahoma, provided such
conviction arose from offense similar to Oklahoma statute);
Commonwealth v. Smith, 598 A.2d 268 (Pa. 1991) (prior conviction
by court-martial for robbery constitutes a conviction for
purposes of imposing mandatory sentence pursuant to Pennsylvania
statute).
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throughout the Army Court Martial," defendant maintains "there
was reasonable doubt as to whether or not [he] was a convicted
felon." We find his argument without merit.
The record does not disclose the results of any "criminal
record check" that attended either the handgun purchases or
Blythe's investigation. Thus, assuming, without deciding, that
any related conclusions would be relevant to the issue of
reasonable doubt under the circumstances, the record is silent
on the data provided to authorities in each instance, thereby
preventing proper appellate consideration of the question. With
respect to a misunderstanding by defendant of the import of the
UCMJ conviction, his "ignorance of the law is no excuse."
Miller v. Commonwealth, 25 Va. App. 727, 731-32, 492 S.E.2d 482,
485 (1997).
IV.
Lastly, insisting the crime of "Housebreaking" is not a
"violent felony" embraced by Code §§ 18.2-308.2(A) and
17.1-805(C), defendant contends the trial court erroneously
instructed the jury and imposed the sentence mandated by Code
§ 18.2-308.2(A).
In fixing punishment for a violation of Code
§ 18.2-308.2(A), the statute provides, in pertinent part:
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
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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 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). Companion Code § 17.1-805(C) directs, inter
alia, that:
For purposes of this chapter, violent felony
offenses shall include any violation of
. . . [Code] §§ 18.2-90, 18.2-91, 18.2-92
. . . ; or any conspiracy or attempt to
commit any offense specified in this
subsection, and any substantially similar
offense under the laws of any state,
District of Columbia, the United States or
its territories."
(Emphasis added).
A.
Defendant first contends that a "proper and grammatical
reading of Code § 17.1-805(C) clearly indicates that the phrase
'and any substantially similar offense under the laws of any
state, the District of Columbia, the United States or its
territories' applies only to conspiracies or attempts to commit
the offenses specified." Again, we disagree.
"When statutory construction is required, we construe a
statute to promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used."
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Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530,
533 (1994). "The plain, obvious, and rational meaning of a
statute is always preferred to any curious, narrow or strained
construction." Branch v. Commonwealth, 14 Va. App. 836, 839,
419 S.E.2d 422, 424 (1992). "Although penal laws are to be
construed strictly [against the Commonwealth], they 'ought not
to be construed so strictly as to defeat the obvious intent of
the legislature.'" Willis v. Commonwealth, 10 Va. App. 430,
441, 393 S.E.2d 405, 411 (1990) (citation omitted). Moreover,
"a statute should never be construed so that it leads to absurd
results." Branch, 14 Va. App. at 839, 419 S.E.2d at 424.
Limiting the definition of "violent felony" to
"conspiracies or attempts," as defendant suggests, would require
a "narrow or strained" construction of Code § 17.1-805(C),
inviting an absurd result. See id. Adopting defendant's logic,
a person convicted of attempted murder in another jurisdiction
would suffer the mandatory five-year sentence prescribed by Code
§ 18.2-308.2(A), while a convicted murderer would escape the
harsher penalty. A reasonable construction of the statute would
include as violent felonies those offenses enumerated in Code
§ 17.1-805(C), together with a "conspiracy or attempt to commit"
such crimes, and offenses in other jurisdictions "substantially
similar" to those specified by the statute.
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B.
Defendant next complains the crime of "Housebreaking" is
not "substantially similar" to any offense designated in Code
§ 17.1-805(C). In response, the Commonwealth contends the
offense is "substantially similar to . . . Code §§ 18.2-91 and
–92," "statutory burglary."
Manifestly, to prove "Housebreaking" under the UCMJ among
those crimes embraced by the punishment provisions of Code
§ 18.2-308.2(A), "[t]he Commonwealth bears the burden of proving
that an out-of-state conviction was obtained under [a] law[]
substantially similar to those" enumerated in Code
§ 17.1-805(C). Shinault v. Commonwealth, 228 Va. 269, 271, 321
S.E.2d 652, 654 (1984). "[I]f a person may be convicted of an
offense under another jurisdiction's statute for conduct which
might not result in a conviction under [the Virginia Code], the
statutes are not 'substantially conforming'" Cox v.
Commonwealth, 13 Va. App. 328, 330-31, 411 S.E.2d 444, 446
(1991). 4
4
The accused in Shinault was convicted for drunk driving
and punished as a recidivist under Code § 18.2-270, and the
defendant in Cox was adjudicated an habitual offender and
punished under Code § 46.2-351. Nevertheless, Shinault and Cox
widened Virginia statutes that incorporated foreign convictions
by reference with language like Code § 17.1-805(C). Compare
Code § 17.1-805(C) ("For purposes of this chapter, violent
felony offenses shall include any violation of . . . §§ 18.2-90,
18.2-91, 18.2-92 . . . and any substantially similar offense
under the laws of any state, District of Columbia, the United
States or its territories." (emphasis added)), with Code
§ 18.2-270 ("For the purposes of this section a conviction . . .
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The prior conviction in issue here resulted from a
violation of Article 130, UCMJ, 10 U.S.C. § 930 (1998), which
proscribes "unlawful[] ent[ry] [into] the building or structure
of another with intent to commit a criminal offense
therein . . . ."
Code § 18.2-90 provides, in pertinent part:
If any person in the nighttime enters
without breaking or in the daytime breaks
and enters or enters and conceals himself in
a dwelling house . . . or an adjoining,
occupied outhouse . . . or any railroad car,
or any automobile, truck or trailer . . .
used as a dwelling or place of human
habitation, with intent to commit murder,
rape, robbery or arson . . . he shall be
deemed guilty of statutory burglary, . . . a
Class 3 felony.
"If any person commits any of the acts mentioned in § 18.2-90
with intent to commit larceny, . . . he shall [also] be guilty
of statutory burglary," albeit upon a lesser penalty. Code
§ 18.2-91.
If any person break and enter a dwelling
house while said dwelling house is occupied,
either in the day or nighttime, with the
intent to commit any misdemeanor except
under . . . the laws of any other state substantially similar to
the provisions of § 18.2-266 through 18.2-269 of this Code,
shall be considered a prior conviction." (emphasis added)), and
Code § 46.2-351 ("The offenses . . . of this section shall be
deemed to include offenses under . . . any law of another state
or any valid county, city, or town ordinance of another state
substantially conforming to the aforesaid state statutory
provisions." (emphasis added)).
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assault and battery or trespass, he shall be
guilty of a Class 6 felony.
Code § 18.2-92.
Thus, a person could be convicted of "Housebreaking" under
the UCMJ without evidence of elements indispensable to
violations of Code §§ 18.2-90, -91 or –92. Accordingly, an
accused may be guilty of "Housebreaking" for conduct "which
might not result in a conviction under [the Virginia Code]."
Cox, 13 Va. App. at 330-31, 411 S.E.2d at 446. Under such
circumstances, "Housebreaking" is not a "substantially similar
offense" and, therefore, not a "violent felony" within the
intendment of Code §§ 18.2-308.2(A) and 17.1-805(C).
Accordingly, we affirm the conviction but remand the
proceedings to the trial court for resentencing consistent with
this opinion.
Affirmed in part,
reversed in part,
and remanded.
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