Johnson v. Commonwealth Of Va.

• Decision Date: 18 May 2010
• Docket Number: Record No. 2919-08-3.
• Citation: 692 S.E.2d 651,56 Va.App. 244
• Parties: Derick Antoine JOHNSONv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

56 Va.App. 244
692 S.E.2d 651

Derick Antoine JOHNSON
v.
COMMONWEALTH of Virginia.

Record No. 2919-08-3.

Court of Appeals of Virginia,
Salem.

May 18, 2010.

692 S.E.2d 652

Keith Orgera, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: ELDER, PETTY and ALSTON, JJ.

ALSTON, Judge.

Derick Antoine Johnson (appellant) appeals the five-year sentence imposed upon him by the trial court for his conviction of possession of a firearm by a convicted felon, pursuant to Code § 18.2-308.2. Appellant contends the five-year mandatory sentence under this statutory provision violates the separation of powers doctrine of the Virginia Constitution. Appellant argues the General Assembly usurped a judicial function in creating the statutory framework under Code § 18.2-308.2 by mandating a specific sentence of five years, and divesting the court of any discretion to determine appellant's sentence. For the reasons stated below, we disagree with appellant and affirm the imposition of the five-year sentence.

I. Background

The facts leading to appellant's conviction are not at issue on appeal. On September 23, 2008, the trial court found appellant guilty of eluding a police officer, possession of a firearm by a violent felon, possession of a Schedule I or II substance, and possession of a firearm while in possession of a Schedule I or II substance.¹ On October 31, 2008, prior to sentencing, appellant filed a “Motion to Dismiss,” arguing “the Court can neither convict nor sentence [appellant] under an unconstitutional statute.” Appellant argued that by prescribing a mandatory five-year term of incarceration in Code § 18.2-308.2, the legislature improperly usurped a judicial function, in violation of the principle of separation of powers.

At appellant's sentencing hearing on November 7, 2008, appellant conceded that pursuant to Code § 19.2-266.2, he was procedurally barred from seeking a dismissal of the charge against him. Instead, he asked

692 S.E.2d 653

the court, as he did in his motion to dismiss, to sever the mandatory five-year term of incarceration prescribed by Code § 18.2-308.2 and declare that portion of the statute unconstitutional. The trial court denied appellant's motion. The court found the motion untimely under Code § 19.2-266.2, concluding that the statute required appellant make his motion before trial. The court also noted that even if the motion was not procedurally barred, the mandatory minimum sentence prescribed by Code § 18.2-308.2 was constitutional. The trial judge then sentenced appellant to five years incarceration, pursuant to Code §§ 18.2-10(f) and -308.2, for possession of a firearm by a violent felon.² This appeal followed.II. Analysis

Code § 18.2-308.2(A) proscribes possession of a firearm by a violent felon, and states in relevant part:

Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years.

(Emphasis added).³ Further, Code § 18.2-10(f) states:

For Class 6 felonies, [the jury or court trying the case without a jury shall impose] a term of imprisonment of not less than one year nor more than five years, or in the

discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $ 2,500, either or both.
(Emphasis added).

Appellant argues that in adopting Code § 18.2-308.2, the legislature unconstitutionally mandated a specific sentence of five years incarceration, and in doing so, it usurped the power of the judiciary to determine appellant's sentence. Appellant contends the trial court should have severed the unconstitutional provision of the statute and sentenced him under Code § 18.2-10(f), which provides a range of punishment for Class 6 felonies.⁴

When the trial court rules on the constitutionality of a statute, we review such decisions de novo. Yap v. Commonwealth, 49 Va.App. 622, 629, 643 S.E.2d 523, 526 (2007) (citing Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005)). “It is firmly established that all actions of the General Assembly are presumed to be constitutional. Therefore, the party assailing the legislation has the burden of proving that it is unconstitutional.” Etheridge v. Med. Ctr. Hosps., 237 Va. 87, 94, 376 S.E.2d 525, 528 (1989) (citations omitted). “ ‘This presumption is one of the strongest known to the law. Under it, courts must resolve any reasonable doubt regarding the constitutionality of a law in favor of its validity. To doubt is

692 S.E.2d 654

to affirm.’ ” Lilly v. Commonwealth, 50 Va.App. 173, 181, 647 S.E.2d 517, 521 (2007) (quoting Boyd v. County of Henrico, 42 Va.App. 495, 506-07, 592 S.E.2d 768, 774 (2004) (citations omitted)). “[C]ourts will declare legislation invalid only when it is ‘plainly repugnant to some provision of the state or federal constitution.’ ” Etheridge, 237 Va. at 94, 376 S.E.2d at 528 (quoting Blue Cross v. Commonwealth, 221 Va. 349, 358, 269 S.E.2d 827, 832 (1980)).

Challenging the constitutionality of the statute, appellant argues Code § 18.2-308.2 violates the long-standing and well-recognized principle that “[t]he legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time....” Va. Const. art. III, § 1.

“It

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