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Butler v. Commonwealth

Court of Appeals of Virginia

October 28, 2014

CHRISTOPHER WAYNE BUTLER
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF POWHATAN COUNTY. Thomas V. Warren, Judge Designate.

Affirmed.

Susan E. Allen (The Law Office of Susan E. Allen, on brief), for appellant.

Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Frank, Beales and Senior Judge Clements.

OPINION

Page 830

[64 Va.App. 9] ROBERT P. FRANK, JUDGE

Christopher Wayne Butler, appellant, was convicted in a bench trial of possessing a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred in imposing a mandatory minimum two-year sentence because the indictment failed to allege that his prior felony conviction occurred within ten years. Finding no error, we affirm.

BACKGROUND

On April 9, 2013, a grand jury returned a true bill charging appellant with unlawfully and feloniously possessing a firearm after having been convicted of a felony in violation of Code § 18.2-308.2, a Class 6 felony. On May 9, 2013, appellant was arraigned on the indictment and pled not guilty. At trial, the Commonwealth introduced evidence of appellant's prior felony conviction that occurred within ten years of the current offense. The trial court found appellant guilty as charged and prepared to sentence appellant simultaneously on the firearm charge and other offenses pending before the court.[1]

[64 Va.App. 10] The Commonwealth objected to the consolidation of the charges for sentencing. Citing Code § 18.2-308.2(A),[2] the Commonwealth argued that the trial court was required to impose a mandatory minimum sentence of two years incarceration on the firearm charge because appellant's prior felony conviction occurred within ten years of the current offense. The trial court sua sponte raised the issue of whether the court may impose a mandatory minimum sentence when the indictment failed to allege the felony conviction occurred within the past ten years. Counsel was asked to submit memoranda on the issue. After considering the memoranda and arguments of counsel, the trial court imposed the mandatory minimum of two years incarceration.

This appeal follows.

ANALYSIS

" To the extent that determinations regarding sentencing involve the interpretation of a statute or the common law, such an ...


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