FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY. Stacey W. Moreau, Judge.
James C. Martin (Martin & Martin Law Firm, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Chafin,
O'Brien and Russell.
[66 Va.App. 104] WESLEY G. RUSSELL, JR.
Appellant entered a conditional guilty plea to the charge that he illegally possessed a firearm in violation of Code § 18.2-308.2 after having been previously adjudicated delinquent for an offense that would have been a felony if he had been an adult. Pursuant to the terms of the conditional guilty plea, appellant preserved for appellate review his arguments [66 Va.App. 105] that the trial court erred in applying Code § 18.2-308.2's mandatory minimum sentence provisions to him, that Code § 18.2-308.2 is unconstitutional as applied to him, and that this Court's prior interpretation of Code § 18.2-308.2's mandatory minimum sentence provisions renders the statute vague to the point that a citizen is not on notice as to what the law actually is. For the reasons that follow, we disagree with appellant and affirm his conviction for violating Code § 18.2-308.2.
In 2012, while seventeen years old, appellant was adjudicated delinquent for two instances of violating Code § 18.2-248(G), possession with intent to distribute imitation cocaine. The violations of Code § 18.2-248(G) would have been non-violent felonies if appellant had been an adult when he committed the offenses. Appellant does not
dispute that he was over the age of fifteen at the time of the conduct underlying the delinquency adjudications.
On December 31, 2013, when investigating another matter at appellant's residence, police officers discovered two firearms, specifically two operable long guns. At the time of the discovery, appellant acknowledged his possession of them, stating that he was keeping them for someone else who was going to use them to go hunting. Appellant was charged with violation of Code § 18.2-308.2 and with grand larceny unrelated to the firearms.
In the trial court, the parties agreed that appellant had been previously adjudicated delinquent of offenses that would [66 Va.App. 106] have been non-violent felonies if he had been an adult, that he was over the age of fourteen when he committed the offenses, and that, on December 31, 2013, he was under the age of twenty-nine when he was found to possess the firearms. Recognizing that these facts provided a sufficient evidentiary basis for convicting him of the violation of Code § 18.2-308.2, appellant entered a conditional guilty plea. The trial court accepted the conditional guilty plea and, citing our decision in Carter v. Commonwealth, 38 Va.App. 116, 562 S.E.2d 331 (2002), applied the statute's mandatory minimum sentencing provisions to appellant. As a result, the trial court sentenced appellant to two years of incarceration.
Appellant's conditional guilty plea preserved his ability to challenge on appeal aspects of both his sentence and his conviction. Specifically, appellant retained the ability to argue that the trial court erred in applying Code § 18.2-308.2's mandatory minimum sentence provisions to him, that Code § 18.2-308.2 is unconstitutional as applied to him, and that this Court's prior interpretation of Code § 18.2-308.2's mandatory minimum sentence provisions renders the statute unconstitutionally vague.
Appellant noted and perfected his appeal, asserting the following assignments of error:
1. The trial court erred in ruling that in prosecutions for the violation of Va. Code § 18.2-308.2 where the predicate offense is a delinquent act, the mandatory minimum sentence provisions are nonetheless applicable.
[66 Va.App. 107] 2. The trial court erred in failing to rule that Va. Code § 18.2-308.2 is unconstitutional as applied to cases involving predicate delinquent acts in that it unreasonably infringes upon the Right of the People to Keep and Bear Arms pursuant to the Second Amendment to the Constitution of the United States (as applied to the states through the Fourteenth Amendment) and Article I, § 13 of the Constitution of Virginia.
3. Va. Code § 18.2-308.2 is unconstitutional to the extent that it purports to apply mandatory minimum sentences to cases involving predicate delinquent acts as it fails
to give reasonable notice as to the applicability of any such mandatory minimum provisions to delinquent act cases and is thus at best void for vagueness.
I. Application of Code § 18.2-308.2's Mandatory Minimum Sentence Provisions to Appellant
Appellant's first assignment of error presents a question of statutory interpretation. " [A]n issue of statutory interpretation is a pure question of law which [an appellate court] review[s] de novo." Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted).
Code § 18.2-308.2(A) provides as follows:
It shall be unlawful for (i) any person who has been convicted of a felony ; (ii) any person adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense of murder in violation of § 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery by the threat [66 Va.App. 108] or presentation of firearms in violation of § 18.2-58, or rape in violation of § 18.2-61; or (iii) any person under the age of 29 who was adjudicated delinquent as a juvenile 14 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, other than those felonies set forth in clause (ii), whether such conviction or adjudication occurred under the laws of the 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 ammunition for a firearm, any stun weapon as defined by § 18.2-308.1, or any explosive material, or to knowingly and intentionally carry about his person, hidden from common observation, any weapon described in subsection A of § 18.2-308. However, such person may possess in his residence or the curtilage thereof a stun weapon as defined by § 18.2-308.1. 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 be sentenced to a mandatory minimum term of imprisonment of five ...