Dodson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Fitzpatrick
Argued at Richmond, Virginia

WILLIAM ALBERT DODSON
OPINION BY
v. Record No. 0981-95-2 JUDGE JOHANNA L. FITZPATRICK
OCTOBER 8, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF MADISON COUNTY
Lloyd C. Sullenberger, Judge

John G. Berry (Berry & Early, on brief), for
appellant.

John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

William Albert Dodson (appellant) was convicted in a bench

trial of violating Code § 18.2-308.2, attempting to possess a

firearm after having been convicted of a felony. On appeal, he

argues that the trial court erred in: (1) finding that Code

§ 18.2-308.2 does not violate the constitutional prohibition

against ex post facto laws; (2) using a 1969 conviction for
breaking and entering as the predicate felony when he was a

juvenile at the time of the offense; (3) using his 1969

conviction as the predicate felony when that conviction was void

for lack of jurisdiction; (4) violating the double jeopardy

clause by allowing the Commonwealth to prosecute him for

attempting to possess a firearm after having been convicted of a

felony when he was acquitted of making a false statement on his

criminal history form; and (5) finding the evidence sufficient to
convict. Finding no error, we affirm the conviction.
BACKGROUND

In 1968, appellant, a seventeen-year-old juvenile, was

arrested for the felony of breaking and entering. He was

indicted as an adult with three other adult defendants in

November 1968 and waived a preliminary hearing. An order of the

circuit court recites that on January 2, 1969, before appellant

entered a guilty plea, the circuit court recognized that

appellant was a juvenile and ordered the probation officer to

conduct an investigation and prepare a report pursuant to former

Code § 16.1-176(b). 1 Although the report submitted to the court
1
Former Code § 16.1-175, in effect in 1969, provided as
follows:

If during the pendency of a criminal or
quasi-criminal proceeding against any person
in any other court it shall be ascertained
that the person was under the age of eighteen
years at the time of committing the alleged
offense, such court shall forthwith transfer
the case, together with all papers, documents
and evidence connected therewith, to the
juvenile court of the city or county having
jurisdiction, provided if such is pending in
a court of record, the judge thereof, in his
discretion upon completion of an
investigation as prescribed in § 16.1-176(b),
may continue with the trial thereof.

(Emphasis added). Former Code § 16.1-176(b) set forth the
investigation requirements in juvenile cases as follows:

In all cases under this section the
court may, unless such information is
otherwise available to it from a prior
investigation and report to another court,
require an investigation of the physical,
mental and social condition and personality
of the child or minor and the facts and

2
was styled "pre-sentence report," it included information about

appellant's physical, mental, and social condition, his

personality, and the facts and circumstances of the offense as

required by Code § 16.1-176(b). On March 3, 1969, the court

considered the report and found appellant guilty as an adult of

breaking and entering. Appellant received a two-year

penitentiary sentence that was suspended, and he was placed on

probation for three years conditioned on good behavior.
On July 16, 1994, appellant went to Mountaineer Sporting

Goods in Madison. He spoke to the store owner, Harold Woodward

(Woodward), about purchasing a .22 caliber rifle for his son.

After Woodward showed appellant several rifles, appellant

selected one and paid for it. He also filled out federal and

state firearm transaction forms, and waited while Woodward ran a

background check. Instant approval was not available, and

Woodward told appellant to come back on the next business day.

When appellant returned to the store, Woodward still had not

received approval and told him to come back in a couple of days.

Woodward was later notified that appellant was not approved for

a firearm purchase. On each visit to the store, appellant was

alone.

(..continued)
circumstances surrounding the violation of
the law which is the cause of his being
before the court. . . . [I]f the court
requiring the investigation is a court of
record, such investigation may be made by the
officer provided for in § 53-243.

3
 Appellant was charged with: (1) willfully making a

materially false statement on the required criminal history

consent form in violation of Code § 18.2-308.2:2; and (2)

attempting to possess a firearm after having been convicted of a

felony in violation of Code § 18.2-308.2. 2 He filed a pretrial
2
Code § 18.2-308.2 provides, in pertinent part, as follows:

A. It shall be unlawful for (i) any
person who has been convicted of a felony or
(ii) any person under the age of twenty-nine
who was found guilty as a juvenile fourteen
years of age or older at the time of the
offense of a delinquent act which would be a
felony if committed by an adult, whether such
conviction or adjudication occurred under the
laws of this Commonwealth, or any other
state, the District of Columbia, the United
States or any territory thereof, to knowingly
and intentionally possess or transport any
firearm or to knowingly and intentionally
carry about his person, hidden from common
observation, any weapon described in
§ 18.2-308 A. A violation of this section
shall be punishable as a Class 6 felony. Any
firearm or any concealed weapon possessed,
transported or carried in violation of this
section shall be forfeited to the
Commonwealth and disposed of as provided in
§ 18.2-310.
B. The prohibitions of subsection A
shall not apply to (i) any person who
possesses a firearm or other weapon while
carrying out his duties as a member of the
armed forces of the United States or of the
National Guard of Virginia or of any other
state, (ii) any law-enforcement officer in
the performance of his duties, or (iii) any
person who has been pardoned or whose
political disabilities have been removed
pursuant to Article V, Section 12 of the
Constitution of Virginia provided the
Governor, in the document granting the pardon
or removing the person's political
disabilities, may expressly place conditions
upon the reinstatement of the person's right

4
motion to dismiss the charges, arguing that: (1) Code

§ 18.2-308.2 violated the constitutional prohibition against ex

post facto laws; (2) under former Code § 16.1-179, his 1969

offense did not result in a "conviction" that could serve as the

predicate felony in a prosecution under Code § 18.2-308.2; and

(3) his 1969 conviction was void for lack of jurisdiction. In a

January 26, 1995 letter opinion, the trial court denied the

motion.
On February 15, 1995, the trial court dismissed the part of

the indictment charging that appellant made a materially false

statement under Code § 18.2-308.2:2. The trial court found that

the criminal history consent form did not comply with the

requirement in Code § 18.2-308.2:2(A) that the "form to be

provided by the Department of State Police . . . shall include

only . . . the identical information required to be included on

the firearms transaction record required by regulations

administered by the Bureau of Alcohol, Tobacco and Firearms of

the U.S. Department of the Treasury." Appellant was convicted of
(..continued)
to ship, transport, possess or receive
firearms.
C. Any person prohibited from
possessing, transporting or carrying a
firearm under subsection A, may petition the
circuit court of the jurisdiction in which he
resides for a permit to possess or carry a
firearm. The court may, in its discretion
and for good cause shown, grant such petition
and issue a permit. The provisions of this
section shall not apply to any person who has
been granted a permit pursuant to this
subsection.

5
violating Code § 18.2-308.2, attempting to possess a firearm

after having been convicted of a felony.
EX POST FACTO PROHIBITION

Appellant argues that Code § 18.2-308.2 violates the

constitutional prohibition against ex post facto laws.

Specifically, he contends that, by enacting a statute prohibiting

a felon from possessing a firearm, the legislature added to his

original punishment for the 1969 breaking and entering conviction

by depriving him of his constitutional right to bear arms, and

prohibited an act that was not unlawful at the time of his

earlier conviction.
In considering this argument, the trial court determined

that, "since defendant's allegedly illegal acts occurred in 1994,

the 1989 proscription of possession of a firearm by a felon is

not an ex post facto law although defendant's felony conviction

was in 1969."

An ex post facto law has been defined as:
"any statute which punishes as a crime an act
previously committed, which was innocent when
done; which makes more burdensome the
punishment for a crime, after its commission,
or which deprives one charged with crime of
any defense available according to law at the
time when the act was committed."

Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Beazell v.

Ohio, 269 U.S. 167, 169-70 (1925)). "The mark of an ex post

facto law is the imposition of what can fairly be designated

punishment for past acts." De Veau v. Braisted, 363 U.S. 144,

6
160 (1960). If "the restriction of the individual comes about as

a relevant incident to a regulation of a present situation," the

law is not ex post facto. Id. (emphasis added).

No ex post facto violation could have occurred in this case

because "the crime of being a felon in possession of a firearm

was not committed until after the effective date of the statute

under which [the appellant] was convicted." United States v.

Brady, 26 F.3d 282, 291 (2d Cir.), cert. denied, 115 S. Ct. 246

(1994). See also United States v. Jordan, 870 F.2d 1310, 1314-15

(7th Cir.) (holding that no ex post facto violation occurred

because the defendant was being punished for possessing a firearm

as a felon, not for the three robberies he committed prior to the

enactment of the firearm possession statute), cert. denied, 493

U.S. 831 (1989).

Code § 18.2-308.2 does not criminalize "an act previously

committed," and in the instant case, the attempted firearm

purchase occurred several years after the legislature amended

Code § 18.2-308.2 to prohibit the possession of a firearm by any

convicted felon. Additionally, like the federal firearm statute,

Code § 18.2-308.2 does not impose "punishment" for the underlying

felony. Instead, the prohibition of firearm possession by

convicted felons "comes about as a relevant incident to" the

state regulation of firearms. Thus, we hold that Code

§ 18.2-308.2 is not an unconstitutional ex post facto law.
THE USE OF 1969 CONVICTION

7
 Appellant also asserts that the trial court erred in using

his 1969 conviction as the predicate felony because he was a

juvenile at the time of the commission of the prior offense. He

argues that, by using his 1969 conviction, the trial court

deprived him of the statutory protection of Code § 16.1-179.

Former Code § 16.1-179, in effect at the time of appellant's

1969 conviction, provided, in relevant part:
Except as otherwise provided, no adjudication
or judgment upon the status of any child
under the provisions of this law shall
operate to impose any of the disabilities
ordinarily imposed by conviction for a crime,
nor shall any such child be denominated a
criminal by reason of any such adjudication,
nor shall such adjudication be denominated a
conviction.
The trial court found as follows:

This court finds that § 16.1-179, in
effect in 1969, excluded defendant from its
protective terms. Defendant at time of
conviction was properly before a court of
record and was sentenced in accordance with
the criminal laws of Virginia. The statute
did not apply to one in his situation.

The trial court also determined that, because appellant was not

entitled to the protections of Code § 16.1-179, Code § 18.2-308.2

was not an ex post facto law as applied to him.

In Kiracofe v. Commonwealth, 198 Va. 833, 97 S.E.2d 14

(1957), the Supreme Court of Virginia explained the rationale

behind Code § 16.1-179 as follows:
[Code § 16.1-179] originated in a policy not
to permit the same uses to be made of records
of juvenile courts as are frequently made of
criminal records of courts of general
jurisdiction, for the reason that juvenile

8
 proceedings are corrective in nature rather
than penal. The child is looked upon not as
a bad man, who should be punished but as an
erring child who needs help. The primary
function of the juvenile courts properly
considered is not conviction or punishment
for crime; but crime prevention and juvenile
rehabilitation.

Id. at 844, 97 S.E.2d at 21 (emphasis added). However, the court

had earlier recognized that the legislature had made different

provisions for children who committed serious offenses.
The trial and punishment of minor
offenders follows the regular criminal
procedure, modified, in certain respects, by
the statutes setting up juvenile and domestic
relations courts. These statutes have
established a system whereby most juvenile
offenders are first subjected to the
jurisdiction of the juvenile courts for
proceedings therein designed to subject such
offenders to the supervision and control of
the State in a manner in which the delinquent
ways of the child will be corrected and he be
made to lead a correct life.
But the provisions contained in these
statutes clearly show that the legislature
recognized that children who have committed
grave offenses could not be properly dealt
with according to the methods and procedure
established by such legislation. For this
reason the regular criminal procedure . . .
of circuit courts . . . [is] retained.

Mickens v. Commonwealth, 178 Va. 273, 279, 16 S.E.2d 641, 643-44

(emphasis added), cert. denied, 314 U.S. 690 (1941). See also

State v. Ross, 405 S.E.2d 158, 166-67 (N.C. 1991) (the defendant

"was tried in the [Virginia] Circuit Court as an adult and

sentenced in the Circuit Court as an adult" and thus "the

Virginia conviction was not a juvenile adjudication").

"[T]he plain, obvious, and rational meaning of a statute is

9
always preferred to any curious, narrow or strained construction;

a statute should never be construed so that its leads to absurd

results." Branch v. Commonwealth, 14 Va. App. 836, 839, 419

S.E.2d 422, 424 (1992). The plain meaning of former Code

§ 16.1-179 is that it applies only to proceedings conducted in

the juvenile and domestic relations district court, "under the

provisions of [juvenile] law," and not to criminal proceedings

conducted in the circuit court. The language of the statute

distinguishes between an "adjudication" of the status of a child
3
and a "conviction" as an adult. The legislature has clearly

determined that the policy of juvenile rehabilitation behind Code

§ 16.1-179 is not served by expanding the statute's coverage to

those juveniles who are properly retained by the circuit court to

be tried as adults, convicted as adults, and sentenced as adults.

We hold that appellant was not entitled to the protections of

3
In Georgia, the juvenile law similar to that of Virginia
provides that, "when a juvenile is adjudicated to be a delinquent
by a juvenile court, the adjudication is not regarded as a
criminal conviction." Carrindine v. Ricketts, 223 S.E.2d 627,
628-29 (Ga. 1976). However, the Supreme Court of Georgia has
held as follows:

A juvenile whose case is properly
transferred to the superior court is subject
to the criminal sanctions which may be
imposed in that court. Thus, it is clear
from the Georgia jurisdictional scheme and
the nature of adjudicatory proceedings in
juvenile court that an adjudication of guilt
of a juvenile in superior court is a criminal
adjudication.
Id. at 629 (emphasis added).

10
former Code § 16.1-179 because the circuit court properly tried

and sentenced him as an adult. No ex post facto violation

occurred because Code § 18.2-308.2 did not retroactively deprive

appellant of any protection under Code § 16.1-179.
COLLATERAL ATTACK ON THE PREDICATE FELONY

Appellant next argues that his 1969 conviction is void for

lack of jurisdiction because the report that the trial court

received did not comply with the requirements of former Code
§ 16.1-176(b). Specifically, he contends that the report was

nothing more than an adult presentence report. The Commonwealth

argues that the same rationale adopted by the United States

Supreme Court's decision in Lewis v. United States, 445 U.S. 55

(1980), should control this case. We agree.

In Lewis, the United States Supreme Court interpreted 18

U.S.C. §§ 922 and 1202 (federal firearm possession statutes

included in the Omnibus Crime Control and Safe Streets Act of

1968) and held that the plain meaning of § 1202 indicated that

"the fact of felony conviction imposes a firearm disability until

the conviction is vacated or the felon is relieved of his

disability by some affirmative action, such as a qualifying

pardon." 445 U.S. at 60-61. The defendant in Lewis argued that
his prior felony conviction was invalid because he was not aided

by counsel at the time of conviction. Id. at 57-58. However,

the Supreme Court determined that the legislative history of the

federal firearm possession statutes and the language of the

11
statutes established an intent "that the defendant clear his

status before obtaining a firearm, thereby fulfilling Congress'

purpose 'broadly to keep firearms away from the persons Congress

classified as potentially irresponsible and dangerous.'" Id. at

64-65 (quoting Barrett v. United States, 423 U.S. 212, 218

(1976)). The Supreme Court also noted that the Omnibus Act

contained specific exceptions to the prohibition against the

possession of a firearm by a felon, including any "person who has

been pardoned and who has been expressly authorized to receive,

possess, or transport a firearm." Lewis, 445 U.S. at 61-62

(citing 18 U.S.C. § 1203).

In United States v. Blevins, 802 F.2d 768 (4th Cir. 1986),

the United States Court of Appeals for the Fourth Circuit

followed the rationale of Lewis in a similar case. In Blevins,

the defendant argued that, "because the juvenile court improperly

transferred him to the circuit court for trial as an adult in

1973, the circuit court never gained proper jurisdiction over

[him]." 802 F.2d at 769-70. The court quoted former Code

§ 16.1-176 and recognized that, when a court fails to make the

required findings under Code § 16.1-176, "the circuit court never

gains jurisdiction over the minor to try him as an adult," and

its "judgment of conviction is void in Virginia and may be so

declared by any court in any direct or collateral proceeding in

which the validity of the conviction is a question to be
determined." Id. at 770 (emphasis added). Assuming that the

12
defendant's prior conviction was void under Virginia law, the

court held as follows:
Lewis points out that there is no indication
in the legislative history of § 1202(a)(1) of
any Congressional intent to require the
government to prove validity of predicate
conviction. It is the fact that the
conviction exists, valid or invalid, that
imposes the firearms disability on the
defendant felon, a disability that exists
until the conviction is vacated or the felon
is relieved of his disability by the action
of the proper authority. Thus, in a
prosecution under the federal gun statutes,
the validity of the underlying conviction is
simply not a question to be determined.
Rather, the court need only consider whether,
in fact, the defendant has been convicted,
and, if he has, if the conviction has been
rendered a nullity by action of proper
authority.

Id. at 770-71 (emphasis added) (citations omitted).

The rationale of Lewis and Blevins applies to this case.

Like the federal firearms statutes examined in Lewis, Code

§ 18.2-308.2 specifically provides exceptions to the broad

prohibition against the possession of firearms by felons. Under

subsection (B)(iii), a person who is pardoned is exempted from

the proscription of Code § 18.2-308.2(A). Additionally, under

subsection (C), any person with a firearm disability may petition

the circuit court in the jurisdiction in which he resides for a

gun permit. Thus, the plain meaning of Code § 18.2-308.2

indicates that the legislature did not intend for a felon to be

able to collaterally attack the validity of his or her predicate

felony conviction in a prosecution under the statute. Relying on

13
Blevins, we hold that the validity of the underlying conviction

is not an issue in a prosecution under Code § 18.2-308.2, and

therefore the trial court in this case properly used appellant's

1969 conviction as the predicate felony.

Additionally, the trial court at the time of the 1969

offense complied with former Code § 16.1-176(b) and properly

exercised jurisdiction over appellant. In a January 26, 1995

letter opinion, the trial court for the present offense found as

follows:
[I]n defendant's case in 1969, prior to
conviction the court recognized that
defendant was a juvenile and ordered a report
pursuant to the applicable statute. While
the report on defendant, entitled
"pre-sentence report", is formatted like
those of his adult co-defendants . . . the
contents of the report include information
about the physical condition (height, weight,
health history), mental condition (I.Q. test
results from school), social conditions
(family development, educational attainment),
and the personality of the juvenile
(addressed variously). Also addressed are
the facts and circumstances of the offense
including the juvenile's role therein.

This court does not find that the court
in the earlier proceeding, aware that a
juvenile was before it and having ordered a
report as required by statute . . . and
having received and considered a report on
the juvenile before finding him guilty and
sentencing him as an adult, was without
jurisdiction so as to render the earlier
conviction void.

Former Code § 16.1-176(b), in effect in 1969, provided as

follows:
In all cases under this section the
court may, unless such information is

14
 otherwise available to it from a prior
investigation and report to another court,
require an investigation of the physical,
mental and social condition and personality
of the child or minor and the facts and
circumstances surrounding the violation of
the law which is the cause of his being
before the court. . . . [I]f the court
requiring the investigation is a court of
record, such investigation may be made by the
officer provided for in § 53-243.

Additionally, former Code § 16.1-175 stated as follows:
If during the pendency of a criminal or
quasi-criminal proceeding against any person
in any other court it shall be ascertained
that the person was under the age of eighteen
years at the time of committing the alleged
offense, such court shall forthwith transfer
the case, together with all papers, documents
and evidence connected therewith, to the
juvenile court of the city or county having
jurisdiction, provided if such is pending in
a court of record, the judge thereof, in his
discretion upon completion of an
investigation as prescribed in § 16.1-176(b),
may continue with the trial thereof.

(Emphasis added). Under this statutory scheme, if a circuit

court decided to retain jurisdiction over a juvenile, former Code

§ 16.1-177 authorized the court to "sentence or commit the

juvenile offender in accordance with the criminal laws of this

State or . . . [to] deal with the juvenile in the manner

prescribed in this law for the hearing and disposition of cases

in the juvenile court."

The Supreme Court of Virginia has held that the

investigation required by the juvenile transfer statute is

"mandatory" and that either the juvenile and domestic relations

district court or the circuit court may order the investigation.

15
 Tilton v. Commonwealth, 196 Va. 774, 784-85, 85 S.E.2d 368, 374

(1955). In Tilton, the Commonwealth proceeded against the

juvenile defendant by seeking an indictment in the circuit court.

After the circuit court tried and convicted the juvenile, it

ordered the probation officer to conduct a presentence

investigation and prepare a report. Id. at 776-77, 85 S.E.2d at

369-70. The Supreme Court held as follows:
"[A] full and complete investigation of the
physical, mental and social condition and
personality of the child or minor and the
facts and circumstances surrounding the
violation of the law which is the cause of
his being before the court," whether made
under the direction of the court of record or
the juvenile court, will give the court of
record information upon which to exercise its
judicial discretion in determining whether,
under the provisions of [Code § 16.1-176],
the case should be transferred to the
juvenile court or the trial proceeded with in
the court of record.

Id. at 787-88, 85 S.E.2d at 375. In Tilton, because the

presentence report was not ordered pursuant to the juvenile

transfer statute or before the trial and conviction of the

juvenile defendant, the Supreme Court reversed the conviction.
Id. at 788-89, 85 S.E.2d at 376.

In the instant case, the court in the earlier proceeding

complied with Code § 16.1-176(b) and properly exercised

jurisdiction over appellant. The record shows that, in 1969, the

circuit court ordered an investigation and report prior to an

adjudication of guilt and pursuant to the juvenile transfer

statute, Code § 16.1-176(b). Code § 16.1-175 authorized the

16
circuit court to retain jurisdiction over appellant and order the

investigation. Furthermore, in 1969, Code § 16.1-177 allowed the

judge to try appellant as a juvenile or as an adult. 4 Thus, we

hold that appellant's prior conviction is not void for lack of

jurisdiction.
DOUBLE JEOPARDY

Appellant next argues that his acquittal for making a false

statement on the criminal history consent form barred his

prosecution for attempting to possess a firearm after having been

convicted of a felony. He asserts that the direct act supporting

the attempt charge under Code § 18.2-308.2 was the same act

prohibited by Code § 18.2-308.2:2.
Appellant's argument that he was acquitted of the charge

under Code § 18.2-308.2:2(K) and thus improperly retried under

Code § 18.2-308.2 is without merit. "A dismissal [of an

indictment] qualifies as an acquittal for double jeopardy

purposes when it is granted pursuant to a factual, as opposed to

legal, defense." Greenwalt v. Commonwealth, 224 Va. 498, 500,

297 S.E.2d 709, 710 (1982). In this case, the trial court

4
Since 1969, the juvenile transfer statutes have been
modified extensively. Under Code § 16.1-241(A)(1), the juvenile
and domestic relations district courts have exclusive, original
jurisdiction over criminal offenses alleged to have been
committed by a juvenile. A petition filed in the juvenile and
domestic relations district court pursuant to Code § 16.1-260(A)
and a transfer hearing conducted in accordance with Code
§ 16.1-269.1 are prerequisites to the circuit court acquiring
jurisdiction over a juvenile defendant. Burfoot v. Commonwealth,
___ Va. App. ___, ___ S.E.2d ___ (1996).

17
dismissed the indictment under Code § 18.2-308.2:2(K), because

the criminal history consent form did not comply with statutory

requirements. Thus, the dismissal was not an acquittal for

double jeopardy purposes, and double jeopardy did not bar

prosecution of appellant under Code § 18.2-308.2.
SUFFICIENCY OF THE EVIDENCE

In Virginia, "'[a]n attempt to commit a crime is composed of

two elements: (1) The intent to commit it; and (2) a direct,

ineffectual act done towards its commission.'" Goodson v.

Commonwealth, 22 Va. App. 61, 74, 467 S.E.2d 848, 855 (1996).

"When considering the sufficiency of the evidence on appeal of a

criminal conviction, we must view all the evidence in the light

most favorable to the Commonwealth and accord to the evidence all

reasonable inferences fairly deducible therefrom." Traverso v.

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).

Appellant visited Woodward's store; examined several guns;

selected the gun to be purchased; paid for the gun; and returned

to the store to take possession of the gun. Although appellant

told Woodward that he was buying the gun for his son, appellant

was alone each time he visited the store. His argument that

someone other than he could have picked up the gun is not

supported by the record. Under these circumstances, we hold that

sufficient evidence supported appellant's conviction for

attempting to possess a firearm after having been convicted of a

felony.

18
Accordingly, the decision of the trial court is affirmed.

Affirmed.

19
Benton, J., concurring.

I concur in the opinion except for a portion of the section

styled "COLLATERAL ATTACK ON THE PREDICATE FELONY." I do not

agree that Lewis v. United States, 445 U.S. 55 (1980), and United

States v. Blevins, 802 F.2d 768 (4th Cir. 1986), which applies

Lewis, are applicable to this case. The holding in Lewis is

based upon the United States Supreme Court's (1) review of

legislative history to determine Congress' intent in passing the

Omnibus Crime Control and Safe Streets Act of 1968, and (2)

application of federal criminal law. The congressional intent

when enacting that law and general rules of federal criminal law

do not control our obligation to apply Virginia law in cases that

do not implicate federal constitutional rights or the Supremacy

Clause.
Furthermore, in this case we do not need to decide whether

Lewis is dispositive in a Virginia proceeding where there is a

valid claim that a conviction is void under Virginia law. Cf.
Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 894

(1947) (In Virginia, "where . . . jurisdiction is lacking in a

particular case, it is a settled rule that any judgment . . .

rendered therein is coram non judice, and void for all

purposes"). The record clearly establishes that in 1969 the

trial judge complied with former Code § 16.1-176(b) and properly

obtained jurisdiction to try and sentence Dodson. Dodson has

failed to establish that the trial judge lacked jurisdiction and

20
that his conviction was void. Accordingly, the majority's

discussion and application of the rule announced in Lewis is

dicta.

For these reasons, and for the other reasons discussed in

the majority opinion, I would affirm the conviction.

21