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Cartagena v. Commonwealth

Court of Appeals of Virginia

November 28, 2017



          Melissa I. Bray, Assistant Public Defender, for appellant.

          Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Russell and Senior Judge Bumgardner Argued at Norfolk, Virginia



         Angel Alexis Cartagena was convicted in a bench trial of falsifying a firearm consent form in violation of Code § 18.2-308.2:2, attempted possession of a firearm by a felon in violation of Code § 18.2-308.2, and possession of a firearm by a felon in violation of Code § 18.2-308.2. On appeal, he contends that the evidence presented at trial was insufficient in that it did not establish the range of punishment applicable to his prior felony conviction from the state of New York.


         On May 8, 2015, Cartagena entered Liberty Pawn II in Virginia Beach and told the store manager that he was interested in purchasing a firearm. He asked her about the procedure for purchasing a gun, and she responded that he was required to fill out two separate forms, one for the state government and the other for the federal government. Cartagena inquired about questions 10A and 10B on the federal form, indicating that his race was not listed on the form. The manager created a box "NA" for Cartagena to check.

         The manager testified that, if a prospective firearm purchaser cannot read or write, she does not give them an application. If an applicant has a question of whether or not he or she has been convicted of a felony, she instructs the applicant to go to the local police precinct and speak with an officer to find out whether he or she is eligible to purchase a firearm. The manager did not have any such conversation with Cartagena. He marked the corresponding boxes on each form that he was not a convicted felon.

         Cartagena provided the forms to the manager for processing. He failed the background check and was denied a firearms purchase. As a result, warrants eventually were issued for his arrest related to his attempted purchase.

         Officer J.S. Shelton stopped the car that Cartagena was driving on November 4, 2015 for outstanding warrants for the registered owner. The officer verified Cartagena's identity as the car's registered owner, confirmed that there were outstanding warrants for Cartagena for firearms offenses (including falsifying a firearms form), and placed him in the back seat of his patrol vehicle. Cartagena then stated that he had a weapon in the back seat of his car. Officer Shelton searched Cartagena's car and found a Ruger .45 caliber semiautomatic handgun in a small compartment behind the passenger seat. Cartagena told Officer Shelton that he had tried to purchase a firearm at a pawn shop but he was not permitted to do so, so he purchased this gun from a gun trader on Facebook for $400. Cartagena showed Officer Shelton his bill of sale for the firearm, saying that if he "got caught with a gun" he would not be in any trouble.

         The Commonwealth introduced a Uniform Sentence and Commitment order from the Fulton County Clerk's office, State of New York, as exhibit 2. The order indicates that upon a plea of guilty, Cartagena was convicted of "att[empt] assault, " citing PL-110-120.05-06. The order specifically denotes that the offense is a felony. Along with the conviction order, the Commonwealth introduced a copy of the statute that was in effect at the time of the conviction, indicating that N.Y. Penal Law § 120.05, Assault in the second degree, is a Class D felony.[1]Cartagena did not object to the introduction of either the conviction order or the statute.

         At the close of the Commonwealth's case, Cartagena moved to strike the evidence, arguing, "[j]ust because New York calls this a felony does not in and of itself . . . qualify it necessarily as a felony without knowing what the punishments are available." Cartagena argued that "in Virginia a felony has to do with punishment . . . the punishment is what dictates whether something's a felony or a misdemeanor." Cartagena then argued that no evidence had "been presented to the court that discusses the punishment" range under the New York statute.

         The Commonwealth countered by arguing that the evidence conclusively established that Cartagena had been convicted of a felony under the laws of the state of New York, which is all that the statute requires. Additionally, the Commonwealth asked the trial court to take judicial notice that, for the crime at issue, New York law provided for a potential term of imprisonment of greater than one year, which is a felony punishment in Virginia.

         Noting that the New York record "says felony . . . [i]t clearly says a felony . . ., " the trial court denied the motion to strike. In doing so, the trial court did not indicate whether it was taking judicial notice that the New York offense for which Cartagena had been convicted carried a maximum punishment of greater than one year in prison.

         Cartagena testified that he was born in Puerto Rico and moved to New York in 2011. He claimed that, when he was convicted in New York, he did not speak English and that he did not understand what happened to him. He testified, that when he applied to purchase the gun at Liberty Pawn, he said he could not read the paperwork and asked for help. He did not understand why his application had been denied. He believed that he legally could possess a firearm if he had a bill of sale for the gun. Cartagena then rested his case.

         Cartagena renewed his motion to strike, reiterating that a felony in New York is not necessarily a felony in Virginia. The court again denied the ...

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