Sturdivant v. Commonwealth
| Decision Date | 20 September 2022 |
| Docket Number | 1214-21-1 |
| Parties | JUSTIN DUANE STURDIVANT v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND COUNTY OF JAMES CITY Michael E. McGinty, Judge Designate
Ivan D. Fehrenbach (D.R. Dansby, Ltd., on brief), for appellant.
Robin M. Nagel, Assistant Attorney General (Jason S. Miyares Attorney General, on brief), for appellee.
Present: Judges Friedman, Malveaux and Fulton Argued at Norfolk, Virginia
A jury convicted Justin Duane Sturdivant of possessing or transporting a firearm after having been convicted of a violent felony. On November 3, 2021, the Circuit Court of the City of Williamsburg and County of James City entered a final order sentencing him to five years' imprisonment. Sturdivant appeals the circuit court's decision to overrule his objection to a jury instruction and its denial of his request for a competency evaluation. For the following reasons, we affirm.
A grand jury indicted Sturdivant for possessing or transporting a firearm "after having been convicted of a violent felony as defined in [Code §] 17.1-805," and his case was scheduled for a bench trial on March 3, 2021. On that day Sturdivant entered a not guilty plea and requested a bench trial. The Commonwealth indicated that its witnesses were present and that it was ready to proceed to trial. Sturdivant replied that he had no witnesses but was not ready for trial because he was dissatisfied with his counsel due to inadequate communication. Sturdivant indicated that for the past several months he had sought to retain substitute counsel.
When the circuit court signaled that it was not inclined to grant a continuance, Sturdivant's counsel reiterated that Sturdivant was dissatisfied with his services and had told him the day before that he wanted a jury trial. Counsel professed that he "was shocked when [he] heard" Sturdivant request a bench trial instead. Sturdivant confirmed that he had told his attorney that he wanted a jury trial and told the court, Sturdivant's attorney said that he had "not really discussed the facts of the case with [Sturdivant] probably since the preliminary hearing."[1] And that Sturdivant's "responses to some of the questions [were] confusing."
The court again indicated that it was "not going to grant a continuance just yet," but passed the case on the docket to allow Sturdivant additional time to confer with his attorney. After a recess, Sturdivant's counsel stated that Sturdivant still did not feel ready for trial and wanted to retain substitute counsel. Counsel said he had not prepared for a trial that day because Sturdivant had told him the day before that he wanted a jury trial. Sturdivant then expressed that he wished to be tried by a jury. The court replied that it "suspected" this request, "knowing we can't give [Sturdivant] a jury trial today," and continued the case to April 23, 2021, instructing Sturdivant that even if he changed counsel or decided to call witnesses, he would need to be ready to proceed with a jury trial that date.
On April 22, 2021, the day before the jury trial, Sturdivant's counsel moved for competency and sanity evaluations. Counsel based the motion on a "conversation [he] had with the Commonwealth['s] Attorney and also [Sturdivant's] mother" in which she told counsel "she believes Sturdivant doesn't comprehend what's going on." The Commonwealth denied having any conversations about sanity but acknowledged that Sturdivant's mother said that he "was very low functioning, and there had been extremely little communication" between him and his attorney. The Commonwealth further indicated that, according to Sturdivant's mother, Sturdivant still believed he would have a bench trial. His mother told the Commonwealth that "he doesn't understand things very well." Sturdivant's counsel requested that the court order a competency evaluation to ensure Sturdivant "understands what's going on," and suggested that if the court ordered a competency evaluation, "we might as well look at sanity at the time of the offense as well."
The circuit court reviewed its records and noted that Sturdivant had appeared in a separate case in 2017 and had an extensive presentence investigation during an earlier proceeding in 2016, and neither suggested that he lacked competency. The court also noted that throughout its conversations with Sturdivant and his attorney at the arraignment on March 3, "there was no question in the [c]ourt's mind that . . . Sturdivant didn't want to go forward that day, . . . but . . . [the court] didn't have any issue in arraigning him or feeling that there was any issue in terms of competency." Therefore, the court ruled, there was no "probable cause to believe that he lacks substantial capacity at this point to even proceed with an evaluation."
At trial, the Commonwealth introduced into evidence, without objection, orders showing that Sturdivant had been previously convicted of possession of ammunition by a felon in violation of Code § 18.2-308.2. At the conclusion of trial, the Commonwealth offered Jury Instruction No. 6, which instructed the jury on the elements of the offense of possession of a firearm after having been convicted of a felony. Jury Instruction No. 6 provided that the Commonwealth was required to Sturdivant's counsel objected that "the word violent needs to be in there." The Commonwealth responded that the indictment charged that Sturdivant had been convicted of a violent felony as defined in Code § 17.1-805, so if the court accepted Sturdivant's argument, the jury would then "have to make a legal determination as to what falls under 17.1-805." The correct procedure, the Commonwealth continued, was that "the [c]ourt has to make a determination as to whether a conviction has been admitted into evidence [that] is one of those enumerated in 17.1-805."
The circuit court ruled that "the proposed instruction . . . as it reads, does fairly state the law and certainly follows what the model jury instruction is on that." It noted that under the proposed instruction, "the Commonwealth has to prove [a previous conviction for violating Code § 18.2-308.2] and . . . the jury would have to be convinced beyond a reasonable doubt as to that element, that is, that specific code section." Therefore, the court overruled Sturdivant's objection and gave the jury instruction as proposed. The jury thereafter returned a guilty verdict, and this appeal followed.
In his first assignment of error, Sturdivant asserts that the circuit court erred by overruling his objection and giving Jury Instruction No. 6 without adding the term "violent" to further describe the word "felony." "We review a trial court's decision to refuse a jury instruction for abuse of discretion." Payne v. Commonwealth, 65 Va.App. 194, 203 (2015) (quoting King v. Commonwealth, 64 Va.App. 580, 586 (2015) (en banc)). "Our responsibility in reviewing jury instructions is 'to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.'" Hilton v. Commonwealth, 293 Va. 293, 302 (2017) (quoting Payne v. Commonwealth, 292 Va. 855, 869 (2016)). "[W]hether an instruction 'accurately states the relevant law is a question of law' that the appellate court reviews de novo." Banks v. Commonwealth, 67 Va.App. 273, 281 (2017) (quoting Sarafin v. Commonwealth, 288 Va. 320, 325 (2014)).
Under Code § 18.2-308.2(A), the mandatory minimum sentence for a non-violent felony is only two years, but the mandatory minimum for a violent felony is five years. Accordingly, Sturdivant argues, whether his 2017 conviction was for a violent or a non-violent felony was an "important element of the crime" to be submitted to the jury under Alleyne v. United States, 570 U.S. 99, 103 (2013). He contends that dicta in Butler v. Commonwealth, 64 Va.App. 7, 13-14 (2014), in which we affirmed a mandatory minimum sentence imposed after a bench trial, suggests that Alleyne requires a jury "to determine all the factual elements of the offense" in a jury trial and that whether the 2017 conviction is "violent" is a question of fact requiring jury determination.
We disagree that Alleyne requires that the jury must have been instructed to determine whether the Commonwealth had proven beyond a reasonable doubt that Sturdivant's prior conviction was a violent felony. The Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) (emphasis added), held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury[ ] and proved beyond a reasonable doubt." When expanding Apprendi's holding to include facts triggering a mandatory minimum, the Alleyne Court expressly declined to revisit the exception for prior convictions. 570 U.S. at 111 n.1. Because Sturdivant assigns error to the trial court's refusal to instruct the jury that it must find beyond a reasonable doubt that Sturdivant had previously been convicted of a violent felony (i.e., a prior conviction), Alleyne does not dictate the outcome in this case.
Our Supreme Court has previously held that "the defendant's possession of a firearm and the fact that the defendant is a convicted felon are essential elements of the offense created by [Code § 18.2-308.2(A)...
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