Dodson v. Com.

• Citation: 23 Va.App. 286,476 S.E.2d 512
• Decision Date: 08 October 1996
• Docket Number: No. 0981-95-2,0981-95-2
• Court: Virginia Court of Appeals
• Parties: William Albert DODSON v. COMMONWEALTH of Virginia. Record

Page 512

476 S.E.2d 512

23 Va.App. 286

William Albert DODSON v. COMMONWEALTH of Virginia.

Record No. 0981-95-2.

Court of Appeals of Virginia Richmond.

Oct. 8, 1996.

John G. Berry, Standardsville (Berry & Early, on brief), for appellant.

John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

FITZPATRICK, Judge.

William Albert Dodson (appellant) was convicted in a bench trial of violating Code § 18.2-308.2, attempting to possess a firearm after having been convicted of a felony. On appeal, he argues that the trial court erred in: (1) finding that Code § 18.2-308.2 does not violate the constitutional prohibition against ex post facto laws; (2) using a 1969 conviction for breaking and entering as the predicate felony when he was a juvenile at the time of the offense; (3) using his 1969 conviction as the predicate felony when that conviction was void for lack of jurisdiction; (4) violating the double jeopardy clause by allowing the Commonwealth to prosecute him for attempting to possess a firearm after having been convicted of a felony when he was acquitted of making a false statement on his criminal history form; and (5) finding the evidence sufficient to convict. Finding no error, we affirm the conviction.

BACKGROUND

In 1968, appellant, a seventeen-year-old juvenile, was arrested for the felony of breaking and entering. He was indicted as an adult with three other adult defendants in November 1968 and waived a preliminary hearing. An order of the circuit court recites that on January 2, 1969, before appellant entered a guilty plea, the circuit court recognized that appellant was a juvenile and ordered the probation officer to conduct an investigation and prepare a report pursuant to former Code § 16.1-176(b). ¹ Although the report submitted to the court was styled "pre-sentence report," it included information about appellant's physical, mental, and social condition, his personality, and the facts and circumstances of the offense as required by Code § 16.1-176(b). On March 3, 1969, the court considered the report and found appellant guilty as an adult of breaking and entering. Appellant received a two-year penitentiary sentence that was suspended, and he was placed on probation for three years conditioned on good behavior.

On July 16, 1994, appellant went to Mountaineer Sporting Goods in Madison. He spoke to the store owner, Harold Woodward (Woodward), about purchasing a .22 caliber rifle for his son. After Woodward showed appellant several rifles, appellant selected one and paid for it. He also filled out federal and state firearm transaction forms, and waited while Woodward ran a background check. Instant approval was not available, and Woodward told appellant to come back on the next business day. When appellant returned to the store, Woodward still had not received approval and told him to come back in a couple of days. Woodward was later notified that appellant was not approved for a firearm purchase. On each visit to the store, appellant was alone.

Appellant was charged with: (1) willfully making a materially false statement on the required criminal history consent form in violation of Code § 18.2-308.2:2; and (2) attempting to possess a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. ² He filed a pretrial motion to dismiss the charges, arguing that: (1) Code § 18.2-308.2 violated the constitutional prohibition against ex post facto laws; (2) under former Code § 16.1-179, his 1969 offense did not result in a "conviction" that could serve as the predicate felony in a prosecution under Code § 18.2-308.2; and (3) his 1969 conviction was void for lack of jurisdiction. In a January 26, 1995 letter opinion, the trial court denied the motion.

On February 15, 1995, the trial court dismissed the part of the indictment charging that appellant made a materially false statement under Code § 18.2-308.2:2. The trial court found that the criminal history consent form did not comply with the requirement in Code § 18.2-308.2:2(A) that the "form to be provided by the Department of State Police ... shall include only ... the identical information required to be included on the firearms transaction record required by regulations administered by the Bureau of Alcohol, Tobacco and Firearms of the U.S. Department of the Treasury." Appellant was convicted of violating Code § 18.2-308.2, attempting to possess a firearm after having been convicted of a felony.

EX POST FACTO PROHIBITION

Appellant argues that Code § 18.2-308.2 violates the constitutional prohibition against ex post facto laws. Specifically, he contends that, by enacting a statute prohibiting a felon from possessing a firearm, the legislature added to his original punishment for the 1969 breaking and entering conviction by depriving him of his constitutional right to bear arms, and prohibited an act that was not unlawful at the time of his earlier conviction.

In considering this argument, the trial court determined that, "since defendant's allegedly illegal acts occurred in 1994, the 1989 proscription of possession of a firearm by a felon is not an ex post facto law although defendant's felony conviction was in 1969."

An ex post facto law has been defined as:

"any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed."

Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 2719, 111 L.Ed.2d 30 (1990) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925)). "The mark of an ex post facto law is the imposition of what can fairly be designated punishment for past acts." De Veau v. Braisted, 363 U.S. 144, 160, 80 S.Ct. 1146, 1155, 4 L.Ed.2d 1109 (1960). If "the restriction of the individual comes about as a relevant incident to a regulation of a present situation," the law is not ex post facto. Id. (emphasis added).

No ex post facto violation could have occurred in this case because "the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute under which [the appellant] was convicted." United States v. Brady, 26 F.3d 282, 291 (2d Cir.), cert. denied, 513 U.S. 894, 115 S.Ct. 246, 130 L.Ed.2d 168 (1994). See also United States v. Jordan, 870 F.2d 1310, 1314-15 (7th Cir.) (holding that no ex post facto violation occurred because the defendant was being punished for possessing a firearm as a felon, not for the three robberies he committed prior to the enactment of the firearm possession statute), cert. denied, 493 U.S. 831, 110 S.Ct. 101, 107 L.Ed.2d 65 (1989).

Code § 18.2-308.2 does not criminalize "an act previously committed," and in the instant case, the attempted firearm purchase occurred several years after the legislature amended Code § 18.2-308.2 to prohibit the possession of a firearm by any convicted felon. Additionally, like the federal firearm statute, Code § 18.2-308.2 does not impose "punishment" for the underlying felony. Instead, the prohibition of firearm possession by convicted felons "comes about as a relevant incident to" the state regulation of firearms. Thus, we hold that Code § 18.2-308.2 is not an unconstitutional ex post facto law.

THE USE OF 1969 CONVICTION

Appellant also asserts that the trial court erred in using his 1969 conviction as the predicate felony because he was a juvenile at the time of the commission of the prior offense. He argues that, by using his 1969 conviction, the trial court deprived him of the statutory protection of Code § 16.1-179.

Former Code § 16.1-179, in effect at the time of appellant's 1969 conviction, provided, in relevant part:

Except as otherwise provided, no adjudication or judgment upon the status of any child under the provisions of this law shall operate to impose any of the disabilities ordinarily imposed by conviction for a crime, nor shall any such child be denominated a criminal by reason of any such adjudication, nor shall such adjudication be denominated a conviction.

The trial court found as follows:

This court finds that § 16.1-179, in effect in 1969, excluded defendant from its protective terms. Defendant at time of conviction was properly before a court of record and was sentenced in accordance with the criminal laws of Virginia. The statute did not apply to one in his situation.

The trial court also determined that, because appellant was not entitled to the protections of Code § 16.1-179, Code § 18.2-308.2 was not an ex post facto law as applied to him.

In Kiracofe v. Commonwealth, 198 Va. 833, 97 S.E.2d 14 (1957), the Supreme Court of Virginia explained the rationale behind Code § 16.1-179 as follows:

[Code § 16.1-179] originated in a policy not to permit the same uses to be made of records of juvenile courts as are frequently made of criminal records of courts of general jurisdiction, for the reason that juvenile proceedings are corrective in nature rather than penal. The child is looked upon not as a bad man, who should be punished but as an erring child who needs help. The primary function of the juvenile courts properly considered is not conviction or punishment for crime; but crime prevention and juvenile rehabilitation.

Id. at 844, 97 S.E.2d at 21 (emphasis added). However, the Court had earlier recognized that the legislature had made different provisions for children who committed serious offenses.

The trial and punishment of minor offenders follows the regular criminal procedure, modified, in certain respects, by the statutes setting up juvenile and domestic relations courts. These statutes have established a system whereby most juvenile offenders are first subjected to the jurisdiction of ...