Troy L. Parham v. Commonwealth ( 1996 )


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  •                      COURT OF APPEALS OF VIRGINIA
    Present: Judges Baker, Benton and Overton
    Argued at Norfolk, Virginia
    TROY L. PARHAM
    MEMORANDUM OPINION * BY
    v.   Record No. 2876-95-2                JUDGE JAMES W. BENTON, JR.
    DECEMBER 3, 1996
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF SUSSEX COUNTY
    Robert G. O'Hara, Jr., Judge
    Connie Louise Edwards for appellant.
    Michael T. Judge, Assistant Attorney General
    (James S. Gilmore, III, Attorney General, on
    brief), for appellee.
    The trial judge convicted Troy L. Parham, a previously
    convicted felon, of possessing a firearm in violation of Code
    § 18.2-308.2.    Parham contends that the conviction was barred by
    the Ex Post Facto Clause, the Due Process Clause, and Code
    § 1-16.   We disagree and affirm the conviction.
    I.
    The undisputed evidence proved that in April 1995,
    Lieutenant Raymond R. Bell of the Sussex County Sheriff's Office
    received a shotgun from Frank Owen.    Owen testified that he
    purchased the shotgun from Parham in November 1994.
    The evidence further proved that Parham was convicted in
    1988 of three felonies -- breaking and entering with intent to
    commit assault, felonious assault, and breaking and entering with
    *
    Pursuant to Code § 17-116.010, this opinion is not
    designated for publication.
    intent to commit larceny.     In 1988, when Parham was convicted of
    those felonies, Code § 18.2-308.2 barred individuals who had been
    convicted of specific enumerated felonies from possessing
    firearms. 1    None of Parham's felonies were among those specified
    in the statute.     In 1989, Code § 18.2-308.2 was amended to
    prohibit any felon from possessing a firearm. 2
    1
    In pertinent part, the statute read as follows in 1988:
    It shall be unlawful for any person who has
    been convicted of a Class 1, 2, or 3 felony,
    rape or robbery, or a felony involving the
    use of a firearm 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
    pistol, revolver or other handgun.
    2
    In pertinent part, the statute as amended provides as
    follows:
    It shall be unlawful for (i) any person who
    has been convicted of a felony or (ii) any
    person under the age of twenty-nine who was
    found guilty as a juvenile fourteen years of
    age or older at the time of the offense of a
    delinquent act which would be a felony if
    committed by an adult, whether such
    conviction or adjudication 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 or to knowingly and intentionally
    carry about his person, hidden from common
    observation, any weapon described in
    § 18.2-308 A. A violation of this section
    shall be punishable as a Class 6 felony. Any
    firearm or any concealed weapon possessed,
    transported or carried in violation of this
    section shall be forfeited to the
    Commonwealth and disposed of as provided in
    § 18.2-310.
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    The trial judge rejected Parham's arguments that the statute
    in effect in 1994 could not be applied to Parham.      Finding that
    Parham possessed the shotgun in 1994 and that Parham was a
    convicted felon when he possessed the firearm, the judge
    convicted Parham of violating Code § 18.2-308.2 and sentenced him
    to one year in prison.
    II.
    The principle is well settled "that any statute . . . which
    makes more burdensome the punishment for a crime, after its
    commission, . . . is prohibited as ex post facto."          Beazell v.
    Ohio, 
    269 U.S. 167
    , 169-70 (1925).       Simply put, "[l]egislatures
    may not retroactively alter the definition of crimes or increase
    the punishment for criminal acts."       Collins v. Youngblood, 
    497 U.S. 37
    , 43 (1990)).
    Parham contends that the statute's ban on the possession of
    a firearm increases the punishment for his past criminal act.            We
    disagree.   This Court has previously held that the purpose of
    Code § 18.2-308.2 is not to punish, but rather "to interdict the
    availability and use of firearms by persons previously convicted
    of felony offenses."     Mayhew v. Commonwealth, 
    20 Va. App. 484
    ,
    490-91, 
    458 S.E.2d 305
    , 308 (1995).      The statute was enacted to
    reduce a threat of harm to the public.       See Jones v.
    Commonwealth, 
    16 Va. App. 354
    , 357-58, 
    429 S.E.2d 615
    , 617, aff'd
    on reh'g en banc, 
    17 Va. App. 233
    , 
    436 S.E.2d 192
    (1993).
    Therefore, we hold that the statute as amended in 1989 did not
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    increase the punishment for Parham's earlier conviction.
    Moreover, the statute is not retrospective.      Parham
    mistakenly asserts that the statute was based only on his status
    as a convicted felon.    The statute, by its explicit terms, is not
    so narrow.    It proscribes a felon's act of possessing a firearm,
    i.e., conduct that is distinct from a felon's status.
    Furthermore, the statute became effective in 1989, and
    Parham violated the law when he possessed the firearm in 1994.
    Thus, the statute was not applied as a "new punitive measure to a
    crime already consummated" prior to the effective date of the
    statute.     Lindsey v. Washington, 
    301 U.S. 397
    , 401 (1937).   As we
    ruled in Dodson v. Commonwealth,          Va. App.   ,     S.E.2d
    (1996), "[n]o ex post facto violation could have occurred . . .
    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 [Parham] was convicted.'"       
    Id. at ,
        S.E.2d at
    (citation omitted).   Accordingly, we hold that Parham's
    conviction did not result from a retrospective application of
    Code § 18.2-308.2 and, therefore, could not have violated the Ex
    Post Facto Clause.
    Parham next contends that his conviction violated the Due
    Process Clause.    Parham argues that when he committed the
    felonies in 1988, he lacked notice that by committing felonies he
    would lose his right to possess a firearm.      That argument lacks
    merit.
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    "Pursuant to the state police power, the legislature may
    'restrict personal and property rights in the interest of public
    health, public safety, and for the promotion of the general
    welfare.'"   Rainey v. City of Norfolk, 
    14 Va. App. 968
    , 973, 
    421 S.E.2d 210
    , 213 (1992) (quoting Alford v. City of Newport News,
    
    220 Va. 584
    , 585-86, 
    260 S.E.2d 241
    , 242-43 (1979)).   The
    legislature must use means that are reasonably related to the
    stated purpose.   See 
    Alford, 220 Va. at 586
    , 260 S.E.2d at 243.
    Because "lessons of common experience [reveal] that possession of
    firearms by felons presents a high risk of harm to others,"
    
    Mayhew, 20 Va. App. at 491
    , 458 S.E.2d at 308, we hold that
    barring felons from possessing firearms is reasonably related to
    the goal of protecting the public from harm.   Moreover, Parham's
    contention that the statute violates his Second Amendment right
    to bear arms is also without merit.    See United States v.
    Johnson, 
    497 F.2d 548
    , 550 (4th Cir. 1974).    Therefore, Code
    § 18.2-308.2 was a valid exercise of the state police power and
    Parham's conviction does not violate the Due Process Clause.
    Parham also argues that his conviction violated Code § 1-16.
    That statute states as follows:
    No new law shall be construed to repeal a
    former law, as to any offense committed
    against the former law, or as to any act
    done, any penalty, forfeiture, or punishment
    incurred, or any right accrued, or claim
    arising under the former law, or in any way
    whatever to affect any such offense or act so
    committed or done, or any penalty,
    forfeiture, or punishment so incurred, or any
    right accrued, or claim arising before the
    new law takes effect; save only that the
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    proceedings thereafter had shall conform, so
    far as practicable, to the laws in force at
    the time of such proceedings; and if any
    penalty, forfeiture, or punishment be
    mitigated by any provision of the new law,
    such provision may, with the consent of the
    party affected, be applied to any judgment
    pronounced after the new law takes effect.
    As this Court recently stated, "'[t]he general principle
    that statutes should be given a prospective rather than a
    retrospective construction has been given statutory approval in
    Code § 1-16.'"    Collins v. Department of Alcoholic Bev. Control,
    
    21 Va. App. 671
    , 677-78, 
    467 S.E.2d 279
    , 282 (citation omitted),
    aff'd on reh'g en banc, 
    22 Va. App. 625
    , 
    472 S.E.2d 287
    (1996).
    Because Code § 18.2-308.2 was applied prospectively, it did not
    affect any right that had previously vested in Parham or any
    punishment imposed upon Parham as a result of his prior
    conviction.   Thus, the evidence failed to establish a violation
    of Code § 1-16.
    For these reasons, we affirm the conviction.
    Affirmed.
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