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Jones v. Commonwealth

Court of Appeals of Virginia

December 26, 2018

DOMINQUE JAMAR JONES, S/K/A DOMINIQUE JAMAR JONES
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF HENRICO COUNTY James S. Yoffy, Judge

          John W. Parsons (Law Office of John W. Parsons, on brief), for appellant.

          Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Humphreys, Beales and AtLee Argued at Richmond, Virginia

          OPINION

          ROBERT J. HUMPHREYS, JUDGE

         This appeal essentially calls for us to ascertain the legislative intent of that portion of Code § 18.2-248 with respect to the impact on the sentencing range of a prior conviction for a similar offense as an accommodation.

         Following a bench trial on May 31, 2017, the Circuit Court of Henrico County (the "circuit court") convicted Dominque Jamar Jones, sometimes known as Dominique Jamar Jones ("Jones"), of multiple drug offenses. Specifically, the circuit court convicted Jones of conspiracy to distribute cocaine, in violation of Code §§ 18.2-248 and 18.2-256, possession with the intent to distribute cocaine, in violation of Code § 18.2-248(C), and five counts of distributing a Schedule I or II controlled substance, second offense, also in violation of Code § 18.2-248(C). On August 15, 2017, the circuit court sentenced Jones to a total of seventy years of incarceration, with fifty-five years suspended. On appeal, Jones asserts the following assignment of error:

Mr. Jones assigns error to the trial court for admitting evidence of a prior accommodation conviction for purposes of sentencing enhancement for the convictions under under [sic] Va. Code § 18.2-248(c), and for concluding that the evidence sufficiently established the predicate offense for mandatory second offense sentences under that Code section, because an accommodation offense under 18.2-248(D) is not, by the express wording of § 18.2-248(c), a violation which triggers the enhanced sentencing provisions under § 18.2-248(c).

         I. BACKGROUND

         The Henrico County Police Department performed five controlled drug buys targeting Jones. The police utilized two confidential informants to perform the controlled buys, which took place on various dates throughout September, October, and November 2016. The police followed the same procedure during each of the controlled buys, which all yielded cocaine from the informants.

         During a controlled buy on November 14, 2016, one of the informants made a phone call to Gervais Jones, who told the informant to contact Jones for the drugs. Gervais Jones is Jones's brother.

         On December 12, 2016, police executed a search warrant at Jones's home. During the search of the home, police recovered Jones's personal papers from the master bedroom, including court documents, income tax documents, and his birth certificate. Police also found a PayPal Mastercard with Jones's name on it. In the laundry room, police recovered a black digital scale with residue, plastic sandwich bags in a yellow bag that contained 13.3 grams of cocaine, a spoon, a magic marker, a two-ounce bottle of inositol powder, [1] and other plastic bags. The police also seized a total of $3, 067 in cash from Jones's home.

          On May 31, 2017, Jones appeared for trial on numerous drug charges. During the trial, Jones objected to the admission of an April 23, 2014 conviction for possession with intent to distribute cocaine as an accommodation.[2] The Commonwealth utilized Jones's prior accommodation conviction to support indictments for distributing a Schedule I or II controlled substance, second offense, in violation of Code § 18.2-248(C). While Jones did not object to the authenticity of the accommodation conviction, he objected to its admission and argued that it did not qualify as a predicate offense. Specifically, Jones's trial counsel stated:

I will tell you, I realize my objection would be that was a qualifying and make this a second offense [sic]. I realize that the case law is an unpublished opinion that I have before the Court of Appeals indicates that it did. But for the purposes of the record, for purposes of appeal, I object. I don't believe an accommodation distribution qualifies as a distribution for a second offense, much like a conspiracy doesn't. And as a result of that, ...

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