Susan Marie Focke, f/k/a Susan Marie Spearman v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 25, 2023
• Docket: 0573221
• Status: Published

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, AtLee and Raphael PUBLISHED

Argued at Williamsburg, Virginia

SUSAN MARIE FOCKE, F/K/A SUSAN MARIE SPEARMAN OPINION BY v. Record No. 0573-22-1 JUDGE STUART A. RAPHAEL APRIL 25, 2023 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Mary Jane Hall, Judge

Barry Randolph Koch (Inman & Strickler, P.L.C., on brief), for appellant.

Melinda F. Seemar, Assistant Commonwealth’s Attorney (Ramin Fatehi, Commonwealth’s Attorney, on brief), for appellee.

We consider here whether Code § 18.2-308.2(C) confers subject-matter jurisdiction on a

circuit court to adjudicate a nonresident’s petition to restore firearm rights that were lost due to a

felony conviction rendered by a federal court sitting in Virginia. Our Supreme Court held in

2013 that the statute did not confer subject-matter jurisdiction on circuit courts to consider a

petition filed by a nonresident. See Commonwealth v. Leone, 286 Va. 147, 151-52 (2013). But

the General Assembly amended the statute to confer such jurisdiction when the nonresident files

a petition in “the circuit court of any county or city where such person was last convicted of a

felony.” 2015 Va. Acts ch. 200.

Because the nonresident here was convicted of a felony by a federal court sitting in

Norfolk, she filed her restoration petition in the Circuit Court for the City of Norfolk. Yet the

trial court dismissed her petition, finding that it lacked subject-matter jurisdiction because the

conviction was not rendered by “the circuit court” in Norfolk. Under the last-antecedent rule, however, the phrase “where such person was last convicted of a felony” in Code § 18.2-308.2(C)

modifies “county or city,” not “the circuit court.” Since the federal conviction was rendered by

the federal court in the City of Norfolk, “where [the petitioner] was last convicted of a felony,”

the circuit court had subject-matter jurisdiction to consider the restoration petition.

Still, the trial court reached the correct result in concluding that it could not grant relief.

Because the trial court could not remove the petitioner’s disability resulting from her federal

felony conviction, the court could not grant the only relief contemplated by the statute: “a

restoration order that unconditionally authorizes possessing, transporting, or carrying a firearm”

in Virginia. Code § 18.2-308.2(C) (emphasis added). We therefore reverse the trial court’s

ruling that it lacked jurisdiction and remand for the trial court to deny the petition on the merits.

BACKGROUND

This case involves the interplay of federal law, Virginia law, and North Carolina law

governing a felon’s application to restore her right to possess firearms. Appellant Susan Marie

Focke was convicted in 2017 of felony bankruptcy fraud by the United States District Court for

the Eastern District of Virginia, Norfolk Division. Because of her federal conviction, federal law

and State law restrict her firearm rights. Focke currently resides in North Carolina and seeks to

have her gun rights restored so that she can possess a firearm there.

Under federal law, a person convicted in a State or federal court of a crime punishable by

imprisonment for more than one year may not “possess in or affecting commerce, any firearm or

ammunition.” 18 U.S.C. § 922(g)(1). Focke’s federal offense—bankruptcy fraud—is a crime

punishable by up to five years of incarceration. See 18 U.S.C. § 157. Thus, federal law restricts

her ability to possess a firearm.

Federal law also provides, however, that “[a] person who is prohibited from possessing

. . . firearms or ammunition” may apply “to the Attorney General for relief” from that

-2- prohibition. 18 U.S.C. § 925(c). The Attorney General may “grant such relief” upon concluding

“that the circumstances regarding the disability, and the applicant’s record and reputation, are

such that the applicant will not be likely to act in a manner dangerous to public safety and that

the granting of the relief would not be contrary to the public interest.” Id. If the Attorney

General denies the application, the applicant may petition “the United States district court for the

district in which he resides for a judicial review of such denial.” Id.

But that federal avenue has long been closed because Congress has consistently

prohibited using federal funds to investigate or process applications to restore firearm rights. See

United States v. Bean, 537 U.S. 71, 74-75 (2002). That funding ban continues under current law.

See Consolidated Appropriations Act, 2022, Pub. L. No. 117-103, 136 Stat. 49, 118-19 (2022).

The law of North Carolina, where Focke lives, also prohibits a person convicted of a

felony in any court from possessing a firearm. See N.C. Gen. Stat. § 14-415.1(a)-(b). When a

North Carolina resident like Focke has been convicted of “a single nonviolent felony” and has

had her citizenship rights restored, the resident may petition a North Carolina court to restore her

firearm rights as well. See N.C. Gen. Stat. § 14-415.4(b)-(c). The petitioner must show that

“(i) . . . at least 20 years has passed since the unconditional discharge . . . by the agency having

jurisdiction where the conviction occurred, and (ii) the person’s . . . right to possess a firearm

[has] been restored, pursuant to the law of the jurisdiction where the conviction occurred.” Id.

§ 14-415.4(c).

Reading that code section to require her to have her gun rights restored first in Virginia—

“the jurisdiction where the conviction occurred,” id.—Focke filed her rights-restoration petition

-3- in the Circuit Court for the City of Norfolk.1 Restoration of firearm rights in Virginia is

governed by Code § 18.2-308.2(C).

Like the federal government and North Carolina, Virginia also prohibits a person from

possessing a firearm if that person was convicted of a felony under Virginia law, the law of

another State, or federal law. Code § 18.2-308.2(A). The Virginia statute, however, allows a

petition to restore firearm rights if the person’s “civil rights” have first been restored by the

Governor. See Code § 18.2-308.2(C); Va. Const. art. II, § 1. Governor Ralph S. Northam

restored Focke’s civil rights in Virginia in September 2021.

Code § 18.2-308.2 used to prevent nonresidents like Focke from applying to have their

Virginia gun rights restored. The statute said that the petitioner had to file in “the circuit court of

the jurisdiction in which he resides.” Leone, 286 Va. at 150 (emphasis added) (quoting then-

Code § 18.2-308.2(C)). Applying that language, Leone held that a person who did not reside in

Virginia Beach could not file a rights-restoration petition in the Circuit Court for the City of

Virginia Beach. Id. at 151. But the General Assembly amended the statute in 2015 to extend the

rights-restoration procedure to nonresidents as well. See 2015 Va. Acts ch. 200.

The jurisdictional question here turns on the language of that 2015 amendment. The

amendment provided that a person seeking to restore his gun rights “may petition the circuit

court of the jurisdiction in which he resides or, if the person is not a resident of the

Commonwealth, the circuit court of any county or city where such person was last convicted of a

1 The Commonwealth’s Attorney here does not dispute Focke’s claim that the North Carolina statute makes her eligible to have her gun rights restored, so we express no opinion about whether Focke’s reading of North Carolina law is correct. Cf. In re Richard Jones, No. COA22-392, 2022 WL 17815605, at *2 (N.C. Ct. App. Dec. 20, 2022) (unpublished) (“North Carolina state law regarding restoration of an individual’s firearm rights is inapplicable to a felon convicted in federal court. . . . [B]ecause Petitioner has not had his federal firearm rights restored, he cannot have his firearm rights restored in North Carolina based on the requirements of N.C. Gen. Stat. § 14-415.4(c).”). -4- felony.” Id. (codified at Code § 18.2-308.2(C)). When Focke filed her petition below, the

Commonwealth conceded that she had “good cause” to have her gun rights restored but moved

to dismiss the petition for lack of jurisdiction. Since Focke was convicted in federal court, the

Commonwealth said, she failed to file her petition in the “circuit court” where she “was last

convicted of a felony.”

Following a hearing ore tenus, the trial court agreed with Focke that she had shown

“good cause” to have her firearm rights restored, but it agreed with the Commonwealth that the

court lacked subject-matter jurisdiction to consider the petition. The court rejected Focke’s

argument that she could file her petition in “the Norfolk Circuit Court” simply because that court

was located “in the same city as the Norfolk federal court.” Focke noted a timely appeal.

ANALYSIS

Whether Code § 18.2-308.2(C) conferred subject-matter jurisdiction on the trial court to

consider Focke’s petition is a different question from whether that code section empowered the

trial court to restore her firearm rights given her federal felony conviction. We must avoid

“conflating the jurisdictional question with the merits.” NAACP (Hanover Cnty.) v.

Commonwealth ex rel. Va. State Water Control Bd., 74 Va. App. 702, 711 (2022). Both issues

involve pure questions of statutory interpretation that we review de novo. Leone, 286 Va. at 150.

The jurisdictional question is easily resolved by the last-antecedent rule: “[a]bsent a

contrary intent, a qualifying word or phrase should be read as modifying only the last noun or

phrase that immediately precedes it, i.e., the last antecedent.” Coffman v. Commonwealth, 67

Va. App. 163, 168-69 (2017). “The last antecedent is the last word, phrase, or clause that can be

made an antecedent without impairing the meaning of the sentence.” Va. Educ. Ass’n v.

Davison, 294 Va. 109, 120 (2017) (quoting Butler v. Fairfax Cnty. Sch. Bd., 291 Va. 32, 37

(2015)).

-5- A nonresident’s petition to restore gun rights must be filed in “the circuit court of any

county or city where such person was last convicted of a felony.” Code § 18.2-308.2(C). The

Commonwealth’s Attorney and the trial court both misconstrued that language to conclude that

the petition must be filed in “the circuit court” where the person was last convicted of a felony.

That interpretation ignores the last antecedent in the clause: the circuit court “of any county or

city” where the person was last convicted. Id. The reference in Code § 18.2-308.2(C) to “where

such person was last convicted of a felony” modifies the “county or city” where the person was

convicted, not “the circuit court” where the conviction was rendered. Because Focke was

convicted by the federal district court sitting in Norfolk, the Circuit Court for the City of Norfolk

is the circuit court of the city where she was last convicted. The circuit court here thus had

subject-matter jurisdiction to consider her rights-restoration petition.

Since the trial court had jurisdiction to consider Focke’s petition, could it grant the relief

she requested? As a matter of law, the answer is no. Federal law is clear that State courts cannot

remove the federal disability to possess a firearm that results from a federal felony conviction.

See Beecham v. United States, 511 U.S. 368, 374 (1994) (holding that persons convicted of

federal felonies may have their firearm rights restored “only if they have had their civil rights

restored under federal law”). Thus, federal law would render ineffective a State court’s attempt

to restore a federal felon’s federal firearm rights.

In light of Focke’s federal firearms disability, then, the plain language of Virginia’s

statute did not authorize the circuit court to grant the only relief available under the statute: “a

restoration order that unconditionally authorizes possessing, transporting, or carrying a firearm,

ammunition for a firearm, or a stun weapon.” Code § 18.2-308.2(C) (emphasis added). The

term “unconditional” means “[n]ot limited by a condition; not depending on an uncertain event

or contingency.” Unconditional, Black’s Law Dictionary (11th ed. 2019). Because Focke’s

-6- federal felony conviction prevents her from “possess[ing] in or affecting commerce, any firearm

or ammunition,” 18 U.S.C. § 922(g)(1), the trial court could not “unconditionally” authorize her

to possess a gun in Virginia.2

In its argument in the trial court and here, the Commonwealth touched on the trial court’s

inability to grant an “unconditional” order restoring Focke’s gun rights, though it elided that

problem with the trial court’s subject-matter jurisdiction to even consider the request. As the

Commonwealth framed the argument, “it strains credulity to believe that the Virginia State

Legislature intended [the trial court] to take jurisdiction of federal felonies and make a

determination of whether gun rights should be restored unconditionally to individuals who have

no nexus to our court but instead have been found guilty of a federal felony.” (Emphasis added).

The problem here was not jurisdictional. But the Commonwealth was correct that the trial court

could not grant the “unconditional” restoration order contemplated by the statute.

In short, the trial court was right to reject Focke’s petition, but not because the court

lacked subject-matter jurisdiction. Under the right-for-the-wrong-reason doctrine,3 we conclude

that Focke could not be granted an order permitting her to unconditionally possess firearms in

2 The General Assembly could properly empower a trial court to restore a petitioner’s Virginia gun rights independently from removing the petitioner’s federal firearm disability that results from a federal felony conviction. But the statute speaks of a restoration order that “unconditionally authorizes” possessing firearms and ammunition, Code § 18.2-308.2(C), not “unconditionally” restoring the petitioner’s Virginia gun rights. We cannot “‘add[ ] language to or delet[e] language from a statute’ in the guise of interpreting that statute.” Berry v. Bd. of Supervisors, ___ Va. ___, ___ (Mar. 23, 2023) (alterations in original) (quoting Appalachian Power Co. v. State Corp. Comm’n, 284 Va. 695, 706 (2012))). 3 See, e.g., Miller & Rhoads Bldg., LLC v. City of Richmond, 292 Va. 537, 542-43 (2016) (“‘This Court may uphold a judgment even when the correct reasoning is not mentioned by a party in trial argument or by the trial court in its decision, as long as the record contains sufficient information to support the proper reason.’ Moreover, the right for the wrong reason doctrine is especially applicable where, as here, the question is one of pure statutory interpretation and the parties were on notice that the statutes or statutory scheme was at issue.” (quoting Haynes v. Haggerty, 291 Va. 301, 305 (2016))). -7- Virginia given the firearms disability resulting from her federal felony conviction. Thus, rather

than dismissing Focke’s petition for lack of jurisdiction, the trial court should have denied it on

the merits because the court could not grant relief under the statute.

CONCLUSION

We reverse the order dismissing the petition for lack of subject-matter jurisdiction. We

remand this case with instructions to deny the petition because Focke is not entitled under Code

§ 18.2-308.2(C) to have her firearm rights “unconditionally” restored. The denial of her petition

will be without prejudice to Focke’s filing a future petition to restore her firearm rights should a

change in the law afford her an avenue to obtain such relief.

Reversed and remanded.

-8-