THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas
Padrick, Jr., Judge
Melissa I. Bray, Assistant Public Defender, for appellant.
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
G. RUSSELL, JR. JUDGE.
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.
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.
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.
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.
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.
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.Cartagena did not object to
the introduction of either the conviction order or 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.
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.
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.
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.
renewed his motion to strike, reiterating that a felony in
New York is not necessarily a felony in Virginia. The court
again denied the ...