FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE. John E. Clarkson, Judge.
A. Robinson Winn, Deputy Public Defender (Dalton L. Glass, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, McCullough and Decker. OPINION BY JUDGE STEPHEN R. McCULLOUGH.
[64 Va.App. 668] Kevin Lamont Martin was convicted of possessing a firearm as a convicted felon. He was sentenced to the mandatory minimum in prison because he previously had been convicted of a " violent felony," statutory burglary. The General Assembly did not classify statutory burglary as a violent felony until after appellant was convicted of this offense. Martin argues that the " retroactive recategorization" of his burglary conviction as a violent felony violates the Ex Post Facto Clause of the Virginia and United States constitutions. Like the vast majority of courts to consider the issue, we reject the argument and affirm.
Appellant was convicted of statutory burglary in Tazewell County in 1994. Code § 18.2-308.2(A), which was in place in 1994, prohibits any felon from possessing a firearm. The offense is a Class 6 felony, punishable by a prison term of one to five years or, in the trier's discretion, confinement up to one year, a fine up to $2500, or both. Code § § 18.2-308.2(A), -10(f). On October 13, 1994, the General Assembly classified statutory burglary as a " violent felony" under what is now Code § 17.1-805(C). See 1994 Va. Acts Spec. Sess. II chs. 1, 2. In 1999, the General Assembly amended Code § 18.2-308.2(A) to impose a mandatory minimum sentence of five years for any felon who possesses a firearm and who was previously
convicted of a " violent felony," as defined in Code § 17.1-805. 1999 Va. Acts ch. 846.
The evidence established that on April 20, 2013, appellant, who was experiencing financial difficulties, stole a firearm from a friend and sold it. He later reimbursed his friend $400 to make up for the loss of the stolen gun.
Appellant was charged with larceny as well as possession of a firearm by a convicted felon. At sentencing, he argued that the Ex Post Facto Clause precluded him from being punished in 2013 as someone previously convicted of a violent felony when the felony in question was not classified as violent at the [64 Va.App. 669] time of his conviction, in 1994. The trial court found the Ex Post Facto Clause inapplicable and imposed the mandatory five-year term. The court also convicted appellant of two larcenies, but those convictions are not at issue in this appeal.
Whether a law violates the Ex Post Facto Clause is a question of law that we review de novo on appeal. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005).
Article I, Section 10 of the United States Constitution forbids the States from enacting any " ex post facto" law. The Latin phrase ex post facto means " after the fact." See Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990). In Federalist 84, Alexander Hamilton ...