Claude Prunty v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: December 18, 2001
• Docket: 0307013
• Status: Unpublished

Opinion

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.

- 2 - 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

- 3 - 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

- 4 - 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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