THE CIRCUIT COURT OF GLOUCESTER COUNTY Jeffrey W. Shaw,
D. Barnette for appellant.
Christopher P. Schandevel, Assistant Attorney General (Mark
R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Petty and At Lee Argued at
WILLIAM G. PETTY JUDGE.
Keith White appeals his conviction of making a false
statement in connection with a firearm purchase, in violation
of Code § 18.2-308.2:2. White argues that the trial
court erred in concluding that Taylor v.
Commonwealth, 58 Va.App. 435, 710 S.E.2d 518 (2011),
precluded the trial court from withholding a finding of guilt
and deferring the disposition until a later date. We disagree
well-settled principles of appellate review, we consider the
evidence presented at trial in the light most favorable to
the Commonwealth, the prevailing party in the circuit
court." Porter v. Commonwealth, 276 Va. 203,
215-16, 661 S.E.2d 415, 419 (2008).
25, 2015, White filled out a firearm transaction form in an
attempt to purchase a firearm. White indicated on the form
that he had never been convicted of a crime of domestic
violence. The purchase was denied by the Virginia State
Police, and a trooper opened an investigation based on
White's attempt to purchase a firearm. During the
investigation, it came to light that White had in fact
previously been convicted of a crime of assault and battery.
A trooper interviewed White, and White admitted his
conviction was for assault and battery on a family member, a
crime of domestic violence. White further admitted to the
trooper that he did fill out and sign the form; however,
White explained that he did not realize his assault and
battery conviction was a domestic violence conviction because
his sentencing order only stated misdemeanor assault and
battery. He explained that he thought domestic violence was a
separate and distinct offense. Nonetheless, White pleaded
guilty to making a false statement.
trial court performed a thorough plea colloquy, and the
Commonwealth proffered the evidence it would have presented
at trial. The trial court accepted the plea and found that
the evidence was sufficient to find White guilty. The trial
court, however, deferred entering a conviction until after
the preparation of a presentence report and continued the
case. That same day, the judge signed the plea agreement and
accepted the plea on the record.
testified on his own behalf at the sentencing hearing. His
testimony was consistent with his explanation to the trooper.
He explained that he had not known that assault and battery
was a crime of domestic violence. White pointed out that he
had always responded in the affirmative on employment
applications when asked if he had ever been convicted of a
crime. He testified that he filled the form out truthfully
based on his understanding of the question at the time. On
cross-examination, White admitted that the victim of his
assault and battery was the mother of his child.
counsel argued that his testimony demonstrated an honest
mistake and that White lacked devious intent. Counsel
admitted that he advised his client that the crime was
complete when he put "no" down on the firearm
transaction form. He nonetheless argued that if the trial
court "look[ed] at the totality of the circumstances
here, what was on this man's mind looking at his criminal
background . . . I think there's some doubt there . . .
." White's counsel suggested that there were
alternatives that the court could fashion to prevent a felony
conviction and asked the court not to "tag this
60-year-old man . . . with a felony at this point in his
that White was requesting that the offense be reduced to a
misdemeanor or dismissed altogether, the trial court denied
the request and pronounced White guilty. However, the trial
court noted that in this situation it lacked authority to do
anything else, stating,
I will tell you if this was a situation that had, the way I
interpret the law, allowed a deferred finding, I would
seriously consider one, but I still believe Taylor
was not overruled by Starrs and Taylor
still applies. I invite you to get a definitive answer with a
higher court, but he's entered a plea of guilty, the
evidence is sufficient, and I do find him guilty. I would
consider that alternative if I felt it was available to me,
but my interpretation of the law, its [sic] not available to
argues on appeal that the trial court erred in concluding
that it "lacked the discretion to continue the withhold
finding at the sentencing hearing or otherwise decline to
enter a finding of guilty" and that it was compelled to
find White guilty under Taylor v. Commonwealth, 58
Va.App. 435, 710 S.E.2d 518 (2011). Whether a trial court has
authority to take a case under advisement and defer a finding
of guilt is a question of law that we review de novo
on appeal. Starrs v. Commonwealth, 287 Va. 1, 7, 752
S.E.2d 812, 816 (2014); Moreau v. Fuller, 276 Va.
127, 133, 661 S.E.2d 841, 845 (2008).
first address the Commonwealth's argument that White
failed to preserve this issue in the trial court. The
Commonwealth contends that White did not argue that his
testimony was offered as evidence of guilt or innocence and
he did not distinguish his case from Taylor.
Accordingly, the Commonwealth argues that White did not
preserve the issue for appeal.
primary purpose of requiring an argument be made to a trial
court is "to alert the trial judge to possible error so
that the judge may consider the issue intelligently and take
any corrective actions necessary to avoid unnecessary
appeals, reversals and mistrials." Neal v.
Commonwealth, 15 Va.App. 416, 422, 425 S.E.2d 521, 525
(1992) (quoting Martin v. Commonwealth, 13 Va.App.
524, 530, 414 S.E.2d 401, 404 (1992)).
Commonwealth is correct that White did not specifically refer
to Taylor or attempt to distinguish his case.
However, he did argue that there were doubts as to
White's state of mind at the time of the act sufficient
that the court should make an alternative disposition. The
trial court clearly understood White's argument when it
told him the court had no authority to make such a deferred
finding under Taylor. The trial court cited to the
relevant case law and made specific reference to Starrs
v. Commonwealth and the court's belief that
Starrs did not overrule Taylor. The trial
court had the ability to "consider the issue
intelligently" and, aware of the possibility of appeal,
invited White to get a "definitive answer with a higher
court." Once the trial court ruled on the issue, White
was not required to argue with the court about its
interpretation of Starrs and Taylor.
See Code § 8.01-384 ("No party, after
having made an objection or motion known to the court, shall
be required to make such objection or motion again in order
to preserve his right to appeal, . . . ."). Therefore,
we find that White did properly preserve the issue for
Authority of the Court
the Constitution of Virginia, judicial power is 'vested
in a Supreme Court and in such other courts of original or
appellate jurisdiction subordinate to the Supreme Court as
the General Assembly may from time to time
establish.'" Starrs, 287 Va. at 7, 752
S.E.2d at 816 (quoting Va. Const. art. VI, § 1).
"The court's inherent power has been recognized to
extend to matters 'incident to the exercise of the
judicial power which is vested' in it." Id.
at 7-8, 752 S.E.2d at 816 (quoting Moreau, 276 Va.
at 136, 661 S.E.2d at 846). "A judgment is the
determination by a court of the rights of the parties, as
those rights presently exist upon matters submitted to it in
an action or proceeding." Id. at 7, 752 S.E.2d
at 816 (quoting Rollins v. Bazile, 205 Va. 613, 617,
139 S.E.2d 114, 117 (1964)).
the court has the constitutional authority to render
judgment, in doing so it may not intrude upon the powers of
the other branches of government. For example, a trial court
"may not assume a power of clemency or pardon" or
"the function of statutory enactment."
Moreau, 276 Va. at 136, 661 S.E.2d at 846. This
becomes especially relevant when considering a trial
court's authority to withhold a finding of guilt and the
purpose for which it may withhold such a finding. These
issues have been repeatedly litigated in both this Court and
the Supreme Court.
of this Court first addressed the issue in Powell v.
Commonwealth, 34 Va.App. 13, 537 S.E.2d 602 (2000),
withdrawn by 36 Va.App. 231, 548 S.E.2d 926
(2001). In Powell, the trial court took a
case under advisement with a promise to dismiss the charges
if certain conditions were met. Id. The trial court
refused to dismiss the charges and convicted the defendant.
Id. Although a court has limited authority to take
cases under advisement, this Court held that
where evidence is sufficient beyond a reasonable doubt to
convict, in the absence of specific statutory authority to
defer a finding of guilt, a trial court has no authority to
defer judgment and further proceedings, with a view toward
dismissal of the charge upon meeting certain terms and
conditions imposed by the court.
Id. Ultimately, however, this Court, sitting en
banc, withdrew the panel opinion and decided the case on
different grounds. Powell v. Commonwealth, 36
Va.App. 231, ...