Claude Prunty v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Bumgardner
Argued at Salem, Virginia
CLAUDE PRUNTY
MEMORANDUM OPINION * BY
v. Record No. 0307-01-3 JUDGE RUDOLPH BUMGARDNER, III
DECEMBER 18, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Charles J. Strauss, Judge
Jesse W. Meadows, III, for appellant.
Steven A. Witmer, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief, for appellee.
The trial court convicted Claude Prunty of possession of a
firearm after conviction of a felony. He maintains (1) the
evidence was insufficient to prove a prior conviction of a
felony and (2) the mandatory minimum punishment provision of
Code § 18.2-308.2 is unconstitutional. For the following
reasons, we affirm.
The defendant stipulated the evidence and conceded he
possessed a firearm. The only issue was whether the defendant
had previously been convicted of a felony. The Commonwealth
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
introduced a sentencing order 1 from the City of Danville dated
October 31, 1994. The caption read, "Felony – Indictment for
Driving After Having Been Declared an Habitual Offender." It
recited that the defendant stood convicted of driving after
having been declared an habitual offender and was sentenced to
12 months at the city prison farm.
The trial court overruled a motion to strike at the
conclusion of the Commonwealth's case. The defendant presented
no evidence, but renewed the motion to strike. The trial court
took the matter under advisement to see if the earlier
conviction could have been for anything other than a felony. It
directed the Commonwealth to research the statute in effect at
the time.
At the next hearing, the Commonwealth presented a
memorandum with an attached photocopy from Michie's Virginia
Code Annotated. It reflected that before 1993 driving after
being declared an habitual offender was a felony only. Code
§ 46.2-357 (1994). After an amendment in 1993, the offense
could be a misdemeanor, but the maximum sentence for a
misdemeanor conviction was three months in jail. 1993 Va. Acts,
ch. 677. No change was made to the penalty ranges before the
date of the sentencing order.
1
The Commonwealth never introduced the conviction order.
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The trial court found the sentencing order proved a prior
felony conviction. The order stated the defendant was indicted
for felony driving after having been declared an habitual
offender, and it imposed a sentence of 12 months in jail. The
trial court took judicial notice of the laws of the Commonwealth
in effect in 1994. It concluded that the defendant had been
convicted of a felony in 1994 because any sentence greater than
three months could only be imposed for the felony version of
driving after being declared an habitual offender.
The defendant maintained the trial court erred because it
did not "consult any book, record, register, journal, or other
official document or publication purporting to contain, state,
or explain such law." Code § 19.2-265.2(B). The record
reflects the trial court relied upon a photocopy of the
applicable code section. The record does not support the
defendant's contention.
The trial court properly inferred the earlier conviction
was a felony conviction. The defendant received a 12-month
sentence. Such a sentence could only be imposed upon a
conviction of the felony classification of the crime.
"Courts are presumed to act in accordance with the law and
orders of the court are entitled to a presumption of
regularity." Napert v. Napert, 261 Va. 45, 47, 540 S.E.2d 882,
884 (2001) (citation omitted). Accordingly, when the sentencing
court imposed a felony sentence, the trial court in this case
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could conclude the defendant had been convicted of a felony. No
evidence suggested otherwise. "Absent clear evidence to the
contrary in the record, the judgment of a trial court comes to
us on appeal with a presumption that the law was correctly
applied to the facts." Yarborough v. Commonwealth, 217 Va. 971,
978, 234 S.E.2d 286, 291 (1977).
The defendant contends the mandatory minimum punishment
provision of Code § 18.2-308.2 is unconstitutional. However,
the defendant failed to support his claim with any citation to
the record or any case law. "Statements unsupported by
argument, authority, or citations to the record do not merit
appellate consideration." Buchanan v. Buchanan, 14 Va. App. 53,
56, 415 S.E.2d 237, 239 (1992). Accordingly, we will not
consider this argument.
The defendant maintains the trial court erred by
considering evidence presented after the parties rested.
However, he did not object to the trial court's taking the
matter under advisement, to the Commonwealth's introduction of
the memorandum of law, or to the trial court's reliance upon it.
We do not consider an issue raised for the first time upon
appeal. Rule 5A:18.
Similarly, we do not consider the defendant's argument that
he was denied the right to present mitigating evidence. He
never proffered such evidence or asked to do so. Moreover, when
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asked if the defendant had any evidence to present, counsel
stated "No, your honor." Rule 5A:18.
Concluding the trial court did not err, we affirm the
conviction.
Affirmed.
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