Joseph Calvin Quarles v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
JOSEPH CALVIN QUARLES
MEMORANDUM OPINION * BY
v. Record No. 0943-00-2 JUDGE SAM W. COLEMAN III
FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Andrea C. Long (Charles C. Cosby, Jr.; Boone,
Beale, Cosby & Long, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Joseph Calvin Quarles was convicted in a bench trial of
possession of heroin and possession of a firearm while in
possession of heroin. He was sentenced to two years imprisonment,
suspended for ten years, on the possession offense and sentenced
to the mandatory five-year term of imprisonment for the firearm
offense. On appeal, Quarles challenges the conviction for
possession of a firearm while in possession of heroin, arguing
that Code § 18.2-308.4 is unconstitutional. He contends that the
statute fails to proscribe a punishment for possession of a
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
firearm while in simple possession of narcotics and that the
penalty provisions of Code § 18.2-308.4 are ambiguous. We
disagree and affirm.
BACKGROUND
Quarles was approached by two police officers, who were on
routine patrol. The officers approached Quarles after they
observed him urinating in public. Before one of the officers had
an opportunity to pat-down Quarles for weapons, Quarles informed
the officer that he had a "burner" in his pocket. Quarles
attempted to flee, but he was apprehended moments later. The
officers searched Quarles and found a .22 caliber handgun and a
folded dollar bill, which contained a tan, powdery substance that
spilled when the bill was unfolded. The dollar bill tested
positive for heroin residue. Quarles' appeal challenges the
mandatory five-year sentence imposed under Code § 18.2-308.4.
ANALYSIS
"When testing the constitutional validity of statutes,
courts shall presume the statute to be valid." Gray v.
Commonwealth, 30 Va. App. 725, 731, 519 S.E.2d 825, 828 (1999).
"Consequently, the burden to show the constitutional defect is
on the challenger." Id. at 732, 519 S.E.2d at 828.
"Every act of the legislature is presumed to
be constitutional, and the Constitution is
to be given a liberal construction so as to
sustain the enactment in question, if
practicable." "When the constitutionality
of an act is challenged, a heavy burden of
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proof is thrust upon the party making the
challenge. All laws are presumed to be
constitutional and this presumption is one
of the strongest known to the law."
Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498 S.E.2d 451,
454 (1998) (citations omitted). "The plain, obvious, and
rational meaning of a statute is always preferred to any
curious, narrow or strained construction; a statute should never
be construed so that it leads to absurd results." Branch v.
Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1902).
Code § 18.2-308.4 provides in pertinent part:
A. It shall be unlawful for any person
unlawfully in possession of a controlled
substance . . . to simultaneously with
knowledge and intent possess any firearm.
B. It shall be unlawful for any person
to possess, use, or attempt to use any
pistol, shotgun, rifle, or other firearm or
display such weapon in a threatening manner
while committing or attempting to commit the
illegal manufacture, sale, distribution, or
the possession with the intent to
manufacture, sell, or distribute a
controlled substance classified in Schedule
I or Schedule II of the Drug Control Act
. . . of Title 54.1 or more than one pound
of marijuana.
Violation of this section shall
constitute a separate and distinct felony
and any person convicted thereof shall be
guilty of a Class 6 felony, shall not be
eligible for probation, and shall be
sentenced to a minimum, mandatory term of
imprisonment of five years, which shall not
be suspended in whole or in part.
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Quarles contends that Code § 18.2-308.4 is
unconstitutionally vague because it fails to proscribe a penalty
for violation of Subsection A, that is, possession of a firearm
while simultaneously possessing a controlled substance, and that
to the extent the statute provides a penalty, it is ambiguous
and confusing. He takes the view that the only punishment
provided for a violation of Code § 18.2-308.4 is contained in
the third unlettered paragraph which, he argues, applies only to
Subsection B. We disagree.
To construe the statute as Quarles urges would have us
attribute to the General Assembly the creation of a criminal
offense without providing for any punishment for a violation of
that offense, a result that is irrational and which we will not
ascribe to the legislature. We hold that the penalty provision
of the statute proscribes the penalty for a violation of either
Subsection A or B. Thus, Code § 18.2-308.4(A) and the penalty
provision, when read together, provide that possession of a
controlled substance while simultaneously possessing a firearm
is a Class 6 felony, requiring imposition of a mandatory
five-year term of imprisonment for such a violation.
Both a rational reading of the statute and its legislative
history support this construction. Prior to the 1999 amendment
of the statute, Code § 18.2-308.4 provided that a violation of
Subsection A, possession of a controlled substance while
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simultaneously possessing a firearm, was a Class 6 felony and
that a violation of Subsection B, possession of a firearm while
committing or attempting to commit the illegal manufacture,
sale, distribution, or the possession with the intent to
manufacture, sell, or distribute a controlled substance, was a
separate and distinct felony punishable by a mandatory
three-year term of imprisonment for the first offense and by a
mandatory five-year term of imprisonment for a subsequent
offense. Thus, each subsection provided for a separate penalty
for each separately defined offense. However, when the
legislature amended Code § 18.2-308.4 in 1999, it provided that
a "[v]iolation of this section shall constitute" a Class 6
felony punishable by a mandatory five-year term of imprisonment.
(Emphasis added). Thus, the General Assembly declared, in
effect, that possession of a firearm while simultaneously
possessing a Schedule I or II controlled drug shall be a Class 6
felony with a mandatory minimum five-year term of imprisonment,
the same as possessing or using a firearm while committing or
attempting to commit the manufacture, sale, or distribution of a
Schedule I or II controlled substance. The 1999 amendment
provided that regardless of the drug offense involved,
possession of a firearm while simultaneously engaging in any of
the enumerated drug offenses is a Class 6 felony subject to a
mandatory five-year term of imprisonment. Quarles' contention
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that his five-year mandatory sentence is void because Code
§ 18.2-308.4 fails to provide a punishment for possession of a
controlled substance while simultaneously possessing a firearm
is without merit.
In addition, we hold that the statutorily mandated
five-year term of imprisonment proscribed in Code § 18.2-308.4
is neither vague nor unconstitutional.
Every person has a fundamental right to
liberty in the sense that the Government may
not punish him unless and until it proves
his guilt beyond a reasonable doubt at a
criminal trial conducted in accordance with
the relevant constitutional guarantees. But
a person who has been so convicted is
eligible for, and the court may impose,
whatever punishment is authorized by statute
for his offense, so long as that penalty is
not cruel and unusual, and so long as the
penalty is not based on an arbitrary
distinction that would violate the Due
Process Clause of the Fifth Amendment.
Chapman v. United States, 500 U.S. 453, 465 (1991) (citations
omitted); see also Rummel v. Estelle, 445 U.S. 263, 274 (1980)
(acknowledging reluctance to review legislatively mandated terms
of imprisonment). The legislature "has the power to define
criminal punishments without giving the courts any sentencing
discretion." Chapman, 500 U.S. at 467 (citing cases upholding
mandatory minimum sentences for certain offenses). "A
sentencing scheme providing for 'individualized sentences rests
not on constitutional commands, but on public policy enacted
into statutes.'" Id. (citation omitted).
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Here, as we have held, the legislature provided a
punishment for possession of a Schedule I or II controlled
substance while simultaneously possessing a firearm. The
legislature, in its 1999 amendment, classified possession of a
controlled substance while simultaneously possessing a firearm
and possessing or using a firearm while committing or attempting
to commit any of several specified drug offenses as Class 6
felonies. In 1999, the legislature imposed a minimum mandatory
sentence for a violation of either offense. By amending the
statute to proscribe a mandatory minimum sentence for either
violation of the statute, the legislature merely determined that
it was removing from a trial court's discretion the power to
sentence the defendant within a statutorily proscribed range of
punishments. To do so is not vague or unconstitutional. We,
therefore, uphold the punishment scheme for Code § 18.2-308.4.
Accordingly, we affirm the judgment of the trial court.
Affirmed.
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