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White v. Commonwealth

Court of Appeals of Virginia

May 2, 2017



          Steven 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 Norfolk, Virginia.



         Stephen 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 and affirm.


         "Under 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).

         On July 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.

         The 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.

         White 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.

         White's 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 life."

         Recognizing 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 me.[1]


         White 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).

         A. Procedural Argument

         We must 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.

         The 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)).

         The 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 appeal.

         B. Authority of the Court

         "Under 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)).

         Although 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.[2]

         A panel 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).[3] 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, ...

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