Farnsworth v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Clements

Argued at Alexandria, Virginia

SAMUEL L. FARNSWORTH

OPINION BY

v. Record No. 2384-02-4 JUDGE JEAN HARRISON CLEMENTS

JULY 27, 2004

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF STAFFORD COUNTY

Ann Hunter Simpson, Judge

Robert G. Hyman for appellant.

Paul C. Galanides, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

Samuel L. Farnsworth was convicted in a bench trial of possession of a firearm by a

convicted felon, in violation of Code § 18.2-308.2. On appeal, he contends the trial court erred

in concluding that his prior felony conviction in the state of West Virginia for armed robbery

constituted a predicate felony conviction under Code § 18.2-308.2, because his civil rights,

including his right to possess a firearm, had been previously restored by the state of West

Virginia upon his completion of the sentence for that offense. Finding no error, we affirm the

trial court’s judgment and Farnsworth’s conviction.

I. BACKGROUND

The relevant facts in this case are not in dispute. On October 5, 2001, Farnsworth was

indicted for possession of a firearm by a convicted felon, in violation of Code § 18.2-308.2.

Prior to trial, Farnsworth moved to have the charge dismissed, arguing the Commonwealth could

not use his prior felony conviction in West Virginia as the requisite predicate conviction under

Code § 18.2-308.2 because that state had earlier restored his civil rights upon his release from

prison.

At the May 22, 2002 hearing on that motion, Farnsworth and the Commonwealth

stipulated that Farnsworth was convicted on March 19, 1979, of armed robbery in Lewis County,

West Virginia and that, following his release from prison in that state, he received an “Official

Certificate of Discharge” issued by the West Virginia Department of Corrections, which stated as

follows:

This is to certify that Samuel Farnsworth HCC-11183 is hereby

discharged by expiration of sentence as of the 1st day of April,

1985. Any and all civil rights heretofore forfeited are restored.

Done this 18th day of April, 1985.

The parties further stipulated that Farnsworth possessed a firearm in Stafford County, Virginia

on or about April 15, 2001.

Concluding that the restoration of Farnsworth’s civil rights in West Virginia did not

prohibit his prosecution under the “clear and unambiguous” meaning of Code § 18.2-308.2, the

trial court denied the motion to dismiss. Farnsworth then stipulated that the Commonwealth’s

evidence was sufficient to convict him, and the trial court found him guilty as charged.

The trial court subsequently imposed the minimum mandatory sentence of five years in

the penitentiary, and this appeal followed.

II. ANALYSIS

In this appeal, we are asked to review the trial court’s determination that Farnsworth was

a convicted felon within the meaning of Code § 18.2-308.2. Because this is a question of law

involving the construction and application of Code § 18.2-308.2, we review the trial court’s

judgment de novo. See Sink v. Commonwealth, 28 Va. App. 655, 658, 507 S.E.2d 670, 671

(1998) (noting that, “although the trial court’s findings of historical fact are binding on appeal

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unless plainly wrong, we review the trial court’s statutory interpretations and legal conclusions

de novo”).

Relying on United States v. Haynes, 961 F.2d 50 (4th Cir. 1992), and United States v.

Stump, 784 F. Supp. 326 (N.D. W.Va. 1992), Farnsworth asserts, on appeal, that, although he

was previously convicted of a felony in West Virginia, he was not prohibited from possessing a

firearm in Virginia on or about April 15, 2001, because, after serving his sentence for the felony

conviction in West Virginia, he received a certificate of discharge from the West Virginia

Department of Corrections in 1985 officially restoring all of the civil rights he had forfeited as a

result of his conviction. Thus, he argues, because his civil rights were previously restored by the

state of West Virginia and because Virginia law makes no reference to the restoration of a

convicted felon’s civil rights by another state, his felony conviction in West Virginia may not be

used as a predicate felony conviction to prosecute him for possession of a firearm by a felon

under Code § 18.2-308.2. He further argues that, under the Full Faith and Credit Clause of the

United States Constitution, Virginia must recognize, in its application of Code § 18.2-308.2, the

restoration of his civil rights by the state of West Virginia and his right, under the law of that

state, to possess a firearm. Thus, he concludes, he was not properly subject to prosecution under

Code § 18.2-308.2 and the trial court erred in ruling to the contrary.

In response, the Commonwealth contends that Farnsworth’s reliance on federal court

cases is misplaced and that the trial court correctly concluded, in accordance with the clear

meaning of Code § 18.2-308.2, that the restoration of Farnsworth’s civil rights in West Virginia

did not exempt him from prosecution under that statute, because his right to possess a firearm in

West Virginia had no bearing on his legal ability to do so in Virginia. The Commonwealth

further contends that Farnsworth’s argument regarding the “full faith and credit” clause is barred

on appeal because he did not raise it in the trial court.

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On appeal, as below, the Commonwealth does not challenge Farnsworth’s assertion that

his civil rights were restored in West Virginia by virtue of the April 18, 1985 certificate of

discharge issued by the West Virginia Department of Corrections. Thus, we assume, without

deciding, that, for purposes of this appeal, Farnsworth’s civil rights were restored by the state of

West Virginia upon his discharge from prison after serving the sentence for his March 19, 1979

armed robbery conviction in West Virginia.

The dispositive question before us, then, is whether the restoration of Farnsworth’s civil

rights after he served the sentence for his armed robbery conviction in West Virginia precludes

the use of that conviction as a predicate felony conviction under Code § 18.2-308.2. We

conclude that the plain meaning of the language of Code § 18.2-308.2 answers this question in the

negative.

In reviewing the language of Code § 18.2-308.2, we adhere

to the familiar principle that “[u]nder basic rules of statutory

construction, we determine the General Assembly’s intent from the

words contained in the statute. When the language of a statute is

unambiguous, courts are bound by the plain meaning of that

language and may not assign a construction that amounts to

holding that the General Assembly did not mean what it actually

has stated.”

Alger v. Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565 (2004) (quoting Williams v.

Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 (2003) (citations omitted)). “We must

also assume that the legislature chose, with care, the words it used when it enacted the relevant

statute, and we are bound by those words as we interpret the statute.” Barr v. Town & Country

Properties, Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990). “Moreover, we examine a statute in

its entirety, rather than by isolating particular words or phrases.” Chesterfield County v. Stigall, 262

Va. 697, 704, 554 S.E.2d 49, 53 (2001). Furthermore, “[w]hile it is true that penal statutes must be

strictly construed against the Commonwealth in criminal cases, ‘we will not apply “an unreasonably

restrictive interpretation of the statute” that would subvert the legislative intent expressed therein.’”

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Alger, 267 Va. at 259, 590 S.E.2d at 565 (quoting Armstrong v. Commonwealth, 263 Va. 573,

581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d

760, 761 (1979))). “The manifest intention of the legislature, clearly disclosed by its language, must

be applied.” Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).

The version of Code § 18.2-308.2 in effect on or about April 15, 2001, when Farnsworth

admittedly possessed a firearm in Stafford County, provided, in pertinent part, as follows:

A. It shall be unlawful for . . . any person who has been

convicted of a felony . . . , whether such conviction . . . occurred

under the laws of this Commonwealth, or any other state, the

District of Columbia, the United States or any territory thereof, to

knowingly and intentionally possess or transport any firearm . . . .

B. The prohibitions of subsection A shall not apply to . . .

any person who has been pardoned or whose political disabilities

have been removed pursuant to Article V, Section 12 of the

Constitution of Virginia . . . .

C. Any person prohibited from possessing, transporting, or

carrying a firearm under subsection A, may petition the circuit

court of the jurisdiction in which he resides for a permit to possess

or carry a firearm; however, no person who has been convicted of

a felony shall be qualified to petition for such a permit unless his

civil rights have been restored by the Governor or other

appropriate authority. The court may, in its discretion and for

good cause shown, grant such petition and issue a permit. The

provisions of this section shall not apply to any person who has

been granted a permit pursuant to this subsection.

As relevant to the issue before us in this appeal, the language of Code § 18.2-308.2(A) is

plain and unambiguous and clearly manifests the legislature’s intent to prohibit those who have

been convicted of a felony under the law of, inter alia, any state in the United States, including

West Virginia, from possessing a firearm in Virginia. See generally Alger, 267 Va. at 259, 590

S.E.2d at 565 (stating that “it is clear the obvious intent of that statute [is] to prohibit persons

convicted of felonies from possessing firearms”). The statute draws no distinction between those

felons previously convicted of a felony in Virginia and those previously convicted of a felony in

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another state. It is concerned only “with preventing a person, who is known to have committed a

serious crime in the past, from becoming dangerously armed” while in Virginia. Jones v.

Commonwealth, 16 Va. App. 354, 358, 429 S.E.2d 615, 617, aff’d on reh’g en banc, 17 Va. App.

233, 436 S.E.2d 192 (1993); see Alger v. Commonwealth, 40 Va. App. 89, 93, 578 S.E.2d 51, 53

(2003) (observing that “the ‘mischief’ at which [Code] § 18.2-308.2(A) is directed is the

possession of firearms by convicted felons in an attempt to prevent indiscriminate use of

dangerous weapons by one previously convicted of a serious crime”), aff’d, 267 Va. 255, 590

S.E.2d 563 (2004); Mayhew v. Commonwealth, 20 Va. App. 484, 491, 458 S.E.2d 305, 308

(1995) (noting that Code § 18.2-308.2’s purpose of preventing felons from possessing firearms

“finds its justification from the lessons of common experience that possession of firearms by

felons presents a high risk of harm to others”).

However, the statute expressly provides two specific methods by which a convicted felon

like Farnsworth may be exempted from the prohibition against possessing a firearm in Virginia.

Pursuant to Code § 18.2-308.2(B)(iii), the prohibition does not apply to “any” felon who has had

his “political disabilities” removed by the Governor “pursuant to Article V, Section 12 of the

Virginia Constitution.”1 Additionally, pursuant to Code § 18.2-308.2(C), “any” felon whose

“civil rights have been restored by the Governor or other appropriate authority” may petition the

circuit court in Virginia where he resides for a permit to possess a firearm. If the court, “in its

discretion and for good cause shown,” grants such a permit, the statute’s prohibition against

1

Article V, Section 12 of the Virginia Constitution provides, in pertinent part, as follows:

The Governor shall have power to remit fines and penalties

under such rules and regulations as may be prescribed by law; to

grant reprieves and pardons after conviction except when the

prosecution has been carried on by the House of Delegates; to

remove political disabilities consequent upon conviction for

offenses committed prior or subsequent to the adoption of this

Constitution; and to commute capital punishment.

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possessing a firearm does not apply to that felon. Code § 18.2-308.2(C). Farnsworth did not

obtain relief under either of these statutory exemptions.

Code § 18.2-308.2 sets forth no other method by which a person convicted of a felony

may have his right to possess a firearm restored in Virginia. Indeed, nothing in the statute

automatically exempts from its application a convicted felon whose civil rights have been

restored by another state following the felon’s completion of his sentence in that state.

Consequently, to hold as Farnsworth urges would require us to incorporate into the statute an

additional exemption not provided for by the statute’s plain terms, which we may not do. See

Flanary v. Milton, 263 Va. 20, 23, 556 S.E.2d 767, 769 (2002) (holding that a court may not read

a new exemption into a “statute plain on its face”); Coca-Cola Bottling Co. of Roanoke, Inc. v.

County of Botetourt, 259 Va. 559, 565, 526 S.E.2d 746, 750 (2000) (holding that courts are not

permitted to “change or amend a statute under the guise of construing it”). Had the legislature

wished to include such an exemption in the statute, it could have done so, but it did not. We

conclude, therefore, that the legislature intended that Code § 18.2-308.2(B)(iii) and

18.2-308.2(C) constitute the exclusive means by which a convicted felon in Farnsworth’s

position may be exempted from the prohibition against possessing a firearm in Virginia. See

Commonwealth v. Brown, 259 Va. 697, 704-05, 529 S.E.2d 96, 100 (2000) (holding that, under

the fundamental principle of statutory construction expressio unius est exclusio alterius—which

“provides that where a statute speaks in specific terms, an implication arises that omitted terms

were not intended to be included within the scope of the statute”—when a “‘legislative

enactment limits the manner in which something may be done, the enactment also evinces the

intent that it shall not be done another way’” (quoting Grigg v. Commonwealth, 224 Va. 356,

364, 297 S.E.2d 799, 803 (1982))). Accordingly, the restoration of Farnsworth’s civil rights by

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the state of West Virginia did not, by itself, preclude the use of Farnsworth’s conviction for

armed robbery in West Virginia as a predicate felony conviction under Code § 18.2-308.2.

We further note that Farnsworth’s reliance in this case upon federal case law is

misplaced. The cases cited by Farnsworth, Haynes and Stump, address the application of 18

U.S.C. § 922(g)(1), which establishes the federal prohibition against a convicted felon’s

possession of a firearm. The application of 18 U.S.C. § 922(g)(1) is governed by 18 U.S.C.

§ 921(a)(20), which expressly states that “[w]hat constitutes a [predicate felony conviction under

18 U.S.C. § 922(g)(1)] shall be determined in accordance with the law of the jurisdiction in

which the proceedings were held” and that “[a]ny conviction which has been expunged, or set

aside or for which a person has been pardoned or has had civil rights restored shall not be

considered a [predicate felony] conviction for purposes of this chapter.” Thus, in both Haynes,

961 F.2d at 53, and Stump, 784 F. Supp. at 328, the federal defendants charged under 18 U.S.C.

§ 922(g)(1) who had their civil rights restored by West Virginia were automatically exempted

from prosecution under that statute by the clear language of 18 U.S.C. § 921(a)(20). However,

as discussed above, no such or similar language appears in or pertains to Virginia’s Code

§ 18.2-308.2. Accordingly, the federal case law cited by Farnsworth is neither binding nor of

any persuasive value in the instant matter.

We further find that Farnsworth’s reliance, on appeal, on the federal Constitution’s Full

Faith and Credit Clause is procedurally barred under Rule 5A:18. Pursuant to Rule 5A:18, this

Court “will not consider an argument on appeal [that] was not presented to the trial court.”

Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998). “Rule 5A:18

applies to bar even constitutional claims.” Id. “The purpose of [this] rule is to ensure that the

trial court and opposing party are given the opportunity to intelligently address, examine, and

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resolve issues in the trial court, thus avoiding unnecessary appeals.” Andrews v. Commonwealth,

37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002).

Here, Farnsworth argues on appeal that, pursuant to Article IV, Section 1 of the United

States Constitution, Virginia was obligated to give full faith and credit to the restoration of his

civil rights in West Virginia. Thus, he argues, Virginia was required to accept his right to

possess a firearm “as determined under the law of West Virginia.” He asserts that he properly

“preserved this issue” when he argued to the trial court that “Virginia needs to recognize [that his

rights were restored in West Virginia].” We disagree. Farnsworth made this statement in the

context of arguing that the federal case law discussed above, which has no relevance to the Full

Faith and Credit Clause, supported his position and that Virginia did not provide a means of

restoring a felon’s rights if the felon was not convicted in Virginia. Moreover, Farnsworth

neither mentioned the Full Faith and Credit Clause of the United States Constitution by name nor

drew any connection between it and the matter before the trial court. We hold, therefore, that,

having failed to make any argument concerning the Full Faith and Credit Clause before the trial

court, Farnsworth is procedurally barred by Rule 5A:18 from raising the issue for the first time

on appeal.

Moreover, our review of the record in this case does not reveal any reason to invoke the

“good cause” or “ends of justice” exceptions to Rule 5A:18. See M. Morgan Cherry & Assocs.

v. Cherry, 38 Va. App. 693, 702, 568 S.E.2d 391, 396 (2002) (en banc) (holding that the “good

cause” exception to Rule 5A:18 will not be invoked where appellant had the opportunity to raise

the issue at trial but did not do so); Redman v. Commonwealth, 25 Va. App. 215, 221, 487

S.E.2d 269, 272 (1997) (“In order to avail oneself of the [ends of justice] exception, a defendant

must affirmatively show that a miscarriage of justice has occurred, not that a miscarriage might

have occurred.”); Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448

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(2003) (en banc) (“We will not consider, sua sponte, a ‘miscarriage of justice’ argument under

Rule 5A:18.”), petition for appeal granted, No. 040019 (Va. Sup. Ct. Order of 4/14/04).

Accordingly, we affirm the trial court’s judgment and Farnsworth’s conviction.

Affirmed.

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Benton, J., concurring.

I concur in the opinion, and write separately to address the Rule 5A:18 preclusion.

In the trial court, Farnsworth’s attorney argued, in part, as follows:

So I think number one, the man was restored. And number

two, he was restored in West Virginia where he was required to be

restored. And number three, I think Virginia needs to recognize

that. I don’t think it would make any sense to require him to

reapply for restoration in every state he happens to live in. And I

don’t think Virginia has any restoration statutes that would apply

to somebody that was convicted in another state. I don’t think

Virginia would be the proper jurisdiction for him to be restored. I

don’t think our law makes application to laws like this.

Bear [with] me for a moment. Some language used in

some of these cases was that it was fundamentally unfair to require

somebody to have to reapply every time the law changed. That

was kind of the holding of the Federal Court.

This argument merely addresses the attorney’s belief that the statute did not provide

Farnsworth a means of obtaining a permit to possess a firearm because he was convicted in

another state and had his civil rights restored in another state. Agreeing with the majority, I do

not perceive this argument to be focused upon the Full Faith and Credit Clause.

I continue to believe that this Court may consider sua sponte the exception to Rule 5A:18

that permits our review “for good cause shown or to enable the Court of Appeals to attain the

ends of justice.” See Edwards v. Commonwealth, 41 Va. App. 752, 770-77, 589 S.E.2d 444,

453-56 (2003) (Benton, J., dissenting). See also Ball v. Commonwealth, 221 Va. 754, 758, 273

S.E.2d 790, 792-93 (1981) (when appellant’s attorney, “[i]n reply to [the Supreme Court’s]

inquiry,” addressed an issue “not presented at trial,” the Court invoked Rule 5:21 (the

predecessor to its Rule 5:25) to reverse the conviction “because it was necessary to attain the

ends of justice”). It seems to me, however, that Farnsworth’s analysis summarily ignores the

provision in the statute which provides that a convicted felon may petition the circuit court for a

permit if “his civil rights have been restored by the Governor or other appropriate authority.”

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Code § 18.2-308.2(C). It further seems clear to me that in Farnsworth’s case the “appropriate

authority” includes the West Virginia agency charged to restore the civil rights of persons

convicted in West Virginia. In short, he had an avenue of relief under the statute which he failed

to pursue, foreclosing a claim that we should invoke the “ends of justice” exception to Rule

5A:18 to address his contention that the Full Faith and Credit Clause is implicated in this case.

See also People v. Shear, 83 Cal. Rptr. 2d 707, 714 (Cal. App. 1999) (holding that the “full faith

and credit clause” did not preclude California from prohibiting a convicted felon from possessing

a firearm within its borders merely because his civil rights had been restored in the state of the

conviction).

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