COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Russell and Senior Judge Bumgardne r Argued at Norfolk, Virginia

ANGEL ALEXIS CAR TAGENA, A/K/A VEGUILLA ANGEL ALEXIS CARTEGENA OPINION BY v. Record No. 2002-16-1 JUDGE WESLEY G. RUSSELL, JR. NOVEMBER 28, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF T HE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge Melissa I. Bray, Assistant Public Defender, for appellant. Leah A. Darron, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Angel Alexis Cartagena was co nvicted in a bench trial of falsi fying a firearm consent form in violation of Code § 18.2-308. 2:2, attempted possession of a firearm by a felon in violation of Code § 18.2-308.2 , and possession of a fi rearm by a felon in vi olation of Code § 18.2-308.2. On appeal, he contends that the evi dence presented at trial was in sufficient in that it did not establish the range of punishment applicable t o his prior felony conviction f rom the state of New York.
BACKGROUND On May 8, 2015, Cartagena entered L iberty Pawn II in Virginia Beach and told the store manager that he was interested in purchasing a firearm. He ask ed her about the procedure for purchasing a gun, and she responded that he was required to fil l out two separate forms, one for the state government and the other for the federal government. Cartagena inquired about questions 10A and 10B on the feder al form, indicating that his race was not listed on the form. The manager created a box “NA” for Cartagena to check.PUBLISHED- 2 - The manager testified that, if a prospective firearm purchaser cannot read or write, she does not give them an application. If an applicant has a quest ion of whether or not he or she has been convicted of a felony, she ins tructs the applicant to go t o the local police precinct and speak with an officer to find out whethe r he or she is eligible to pu rchase a firearm. The manager did not have any such conversation wit h Cartagena. He marked the c orresponding boxes on each form that he was not a convicted felon. Cartagena provided the forms to the manager for processing. H e failed the background check and was denied a firearms purchase. As a result, warrant s eventually were issued for his arrest related to his attempted purchase. Officer J.S. Shelton stopped the car that Cartagena was drivin g on November 4, 2015 for outstanding warrants for the re gistered owner. The officer ver ified Cartagena’s identity as the car’s registered owner, confirme d that there were outstanding w arrants for Cartagena for firearms offenses (including f alsifying a firearms form), and p laced him in the back seat of his patrol vehicle. Cartagena the n stated that he had a weapon in the back seat of his car. Officer Shelton searched Cartagena’s c ar and found a Ruger .45 caliber semiautomatic handgun in a small compartment behind the pa ssenger seat. Cartagena told Of ficer Shelton that he had tried to purchase a firearm at a pawn shop but he was not permitted to d o so, so he purchased this gun from a gun trader on Facebook for $400. Cartagena showed Offic er Shelton his bill of sale for the firearm, saying that if he “got caught with a gun” he would not be in any trouble. The Commonwealth introduced a Uniform Sentence and Commitment order from the Fulton County Clerk’s office, Sta te of New York, as exhibit 2. The order indicates that upon a plea of guilty, Cartagena was convi cted of “att[empt] assault,” citing PL-110-120.05-06. The order specifically denotes tha t the offense is a felony. Along with the conviction order, the Commonwealth introduced a copy of t he statute that was in effec t at the time of the conviction,- 3 - indicating that N.Y. Penal L aw § 120.05, Assault in the second degree, is a Class D felony. 1 Cartagena did not object to the i ntroduction of either the conv iction order or the statute. At the close of the Commonwealth ’s case, Cartagena moved to st rike the evidence, arguing, “[j]ust because New York calls this a felony does not in and of itself . . . qualify it necessarily as a felony without knowing what the punishments ar e available.” Cartagena argued that “in Virginia a felony has to do with punishment . . . the punishment is what dictates whether something’s a felony or a misdeme anor.” Cartagena then argued that no evidence had “been presented to the court that disc usses the punishment” range und er the New York statute. The Commonwealth countered by arguing that the evidence conclu sively established that Cartagena had been convicted of a felony under the laws of the state of New York, which is all that the statute requires. A dditionally, the Commonwealth aske d the trial court t o take judicial notice that, for the crime at i ssue, New York law provided for a potential term of imprisonment of greater than one year, which i s a felony punishment in Virgi nia. Noting that the New York reco rd “says felony . . . [i]t clearlysays a felony . . . ,” the trial court denied the motion to str ike. In doing so, the trial cour t did not indicate whether it was taking judicial notice that the N ew York offense for which Cart agena had been convicted carried a maximum punishment of great er than one year in prison. Cartagena testifie d that he was born in Puerto Rico and moved t o New York in 2011. He claimed that, when he was convi cted in New York, he did not spe ak English and that he did not understand what happened to him. He testified, that when he ap plied to purchase the gun at Liberty Pawn, he said he could not read the paperwork and asked for help. He did not

1 We note that, pursuant to N.Y. Penal Law § 100.5, a conviction for an attempt to commit a Class D felony is a Class E Felony. Pursuant to N.Y. Penal Law § 70.00, a Class E felony is punishable by a term of imprisonment of up to four ye ars.- 4 - understand why his application had been denied. He believed th at he legally could possess a firearm if he had a bill of sale for the gun. Cartagena then r ested his case. Cartagena renewed his motion to strike, reiterating that a fel ony in New York is not necessarily a felony in Virgini a. The court again denied the m otion and found Cartagena guilty of all charges. This appeal followed. Cartage na challenges all of his convict ions in a single assignment of error. 2 He argues that all of his convictions must be reversed becaus e the Commonwealth’s evidence was insufficient to pr ove that he previously had been convicted of a felony as that term is used in the rele vant statutes. ANALYSIS We apply a deferential standar d of review to challenges based on the sufficiency of the evidence, and the decision of the “[t]he lower court will be re versed only if that court’s judgment is plainly wrong or without evidence to support it.” Allen v. Commonwealth, 287 Va. 68, 72, 752 S.E.2d 856, 859 (2014) (internal quot ation marks and citati on omitted). “Nevertheless, when an appeal presents the questi on whether the facts proved, and the legitimate inferences drawn from them, fall within the language of a statute, we must construe statutory language to answer the question. That func tion presents a pure question of law which we consider de novo on appeal.” Smith v. Commonwealth, 282 Va. 449, 453-54, 718 S. E.2d 452, 454 (2011); see also Miller v. Comm onwealth, 64 Va. App. 527, 537, 769 S.E.2d 7 06, 710 (2015) (noting that “[t]o the extent our analysis of the sufficiency of the evidenc e requires us to examine the

2 Cartagena’s sole assi gnment of error reads: The trial court erred in findi ng the appellant guilty of falsif ying a firearm consent form, attempted possession of a firearm by a convicted felon and possession of afirearm by a convicted felo n because the evidence was not sufficient to establish that appel lant was previously convicted of a felony.- 5 - statutory language, we review i ssues of statutory construction de novo on appeal”). “[W]e consider the evidence presented a t trial in the light most favo rable to the Commonwealth, the prevailing party below.” S mallwood v. Commonwealth, 278 Va. 62 5, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S .E.2d 584, 586 (2008)). Here, it is undisputed that the evidence establishes that Cart agena had been convicted of a felony under the laws of the state of New York prior to his att empted purchase of a firearm at Liberty Pawn and prior to his ulti mate possession of a firearm purchased elsewhere. 3 Cartagena argues that, to establish violations of Code §§ 18.2-308.2 and 18.2-308.2:2, the Commonwealth was required to prove that his c onviction from New York carried a potential punishment of at least one year in prison. Cartage na posits that, because Code § 18.2-10 provides that the lowest-level Virginia felony carries such a potential punishmen t, an out-of-state conviction must carry such a potential punishment for it to be a “felony” for t he purposes of Code §§ 18.2-308.2 and 18.2-308.2:2. A. Code § 18.2-308.2 As pertinent here, Code § 18.2-308.2(A) provides that [i]t shall be unlawful fo r . . . any person who has been convic ted of a felony . . . whether such conviction or adjudication occurred under the laws of the Commonwea lth, 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 ammunition for a firearm . . . . (Emphasis added). Thus, by its express terms, Code § 18.2-308. 2(A) prohibits any person who has been convicted of a felony “ under the laws of the Commonwea lth, or any other state” from knowingly and intentionally possessing a firearm.

3 Cartagena does not challenge t hat the evidence established tha t he attempted to possess a firearm when he sought to purch ase one at Liberty Pawn or tha t he knowingly and intentionally possessed the firearm that was r ecovered from his car the night he was arrested.- 6 - It is undisputed that the evidence established that Cartagena “had been convicted of a felony . . . under the laws of” the st ate of New York, which, w ithout question, is another state. Regarding the existence of a f elony conviction, the express terms of the statute require nothing more, and therefore, the eviden ce was sufficient to support Car tagena’s convictions for attempted possession of a firearm in viol ation of Code § 18.2-308.2(A) an d possession of a firearm in violation of Code § 18.2-308.2(A). Cartagena’s argument, that th e statute requires that a felony conviction from another sovereign must carry a potential punishment equivalent to the p otential punishment for a Virginia felony is not supported by the plain language of the s tatute. To reach Cartagena’s proposed result, we would have t o read the statute as providing that the firearm prohibition arises when one has been convicted of a “ Virginia felony” or has been convicted of a felony from another covered sovereign “so l ong as the potent ial punishment for that felony meets the minimum punishment f or a Virginia felony.” 4 In short, Cartagena asks us to i nterpret the statute as if it contains words and limits that do not actually appear in the statu te. This we cannot do. “When the legislature has spoken plainly it is not the functi on of courts to change or amend its enactme nts under the guise of construing

4 Cartagena bases his argume nt on our decision in Turner v. Comm onwealth, 38 Va. App. 851, 568 S.E.2d 468 (2002). That reliance is misplaced. In Tu rner, the defendant was charged with unlawfully possessing a firearm after previously having be en convicted of a felony in violation of Code § 18.2-308.2(A). Id. at 853, 568 S.E.2d at 4 69. The predicate prior conviction offered by the Commonwealth was a conviction for an offense und er the Uniform Code of Military Justice. Id. The UCMJ does not categorize offenses a s felonies or misdemeanors. Id. at 854, 568 S.E.2d at 469. Faced with a prior conviction from a system that did not categorize offenses as felonies or misdemea nors, this Court held that, bec ause the offense “carrie[d] a ‘maximum punishment’ of ‘confinem ent for five years,’ together with ‘dishonorable discharge, [and] forfeiture of all pay and allo wances,’ a penalty clearly consistent with a felony in Virginia . . . [,] [t]he trial court . . . co rrectly classified the UCMJ offense a ‘felony’ for purposes of Code § 18.2-308.2(A).” Id. at 857, 568 S.E.2d at 471. Our hol ding in Turner is limited to the anomalous situation where anothe r jurisdiction does not classif y an offense as either a felony or misdemeanor; it has no application when, as here, the other jur isdiction classified the offense as a felony.- 7 - them. The province of [statutory] construction lies wholly wit hin the domain of ambiguity, and that which is plain needs no i nterpretation.” Lahey v. Johnson , 283 Va. 225, 230, 720 S.E.2d 534, 537 (2012) (internal quotation m arks and citations omitted ); see also Ulka Desai v. A. R. Design Grp., Inc., 293 Va. 426, 438, 799 S.E.2d 506, 512 (2017) (“We are not permitted, under the guise of judicial construc tion, to rewrite the plain langua ge of a statute.”). If the General Assembly had int ended the firearm prohibition t o be limited to convictions from other jurisdictions that carried punishments consistent wi th a Virginia felony or were otherwise the equivalent of a Virginia felony, it knew how to d o so. The Code is replete with examples of offenses that are defi ned to include substantially similar offenses in other jurisdictions or that impose increased penalties for prior conv ictions from other sovereigns that are substantially similar to Virginia offenses. 5 The lack of such language here is fatal to

5 See, e.g., Code § 18.2-46.1 (“predica te criminal act” defined as violation of certain Virginia statutes or “any subs tantially similar offense under the laws of another state or territory of the United States, the Distr ict of Columbia, or the United S tates”); Code § 18.2-60.3 (enhanced penalty for stalki ng conviction if person previously has been convicted of violation of Code § 18.2-60.3(A) or “a substantia lly similar offense under t he law of any other jurisdiction”); Code § 18.2-67.5:3 (life sentence f or subsequent conviction of certain violent sex crimes if previously convicted of one of thos e crimes or “for felonies un der the laws of any state or the United States that are substantially similar to those” listed); Code § 18.2-104 (enhanced punishment for multiple convictions for larceny as defined in t he Code of Virginia or for convictions “of any substantiall y similar offense in any other jurisdiction”); Code § 18.2-248 (enhanced penalties for multiple convictions of Code § 18.2-248 “or of a substantially similar offense in any other jurisdicti on, which offense would be a fel ony if committed in the Commonwealth”); Code § 18.2-513 (“rac keteering activity” define d as violation of certain Virginia statutes “or any subs tantially similar offenses under the laws of any other state, the District of Columbia, the United S tates or its territories”); C ode § 19.2-297.1 (life imprisonment for third conviction for various Virginia felonies and “convict ions under the laws of any state of the United States for any offense substantially similar” to the listed Virginia felonies); Code § 19.2-392.02 (“barrier crime” defined as a violation of d elineated Virginia statutes “or any substantially similar offense unde r the laws of another jurisdi ction”). The conclusion that the General Assembly’s decision not to utilize the “substantially s imilar” standard in the prohibition section of Code § 18.2-308(A) was the result of a conscious cho ice is supported by the decision of the General Assembly to incor porate that very standard in th e enhanced penalty section of Code § 18.2-308.2(A). Specifically, the penalty section of Cod e § 18.2-308.2(A) imposes a five-year mandatory minimum punish ment if the prior felony conv iction was for a “violent felony as defined in § 17.1-805,” w hich, in turn, defines a vio lent felony as certain delineated- 8 - Cartagena’s proffered cons truction of Code § 18.2-308.2(A) because “[w]hen the General Assembly has used specific la nguage in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Cod e, we must presume that the difference in the choice of langua ge was intentional.” Sarafinv. Commonwealth, 288 Va. 320, 328, 764 S.E.2d 71, 76, (2014) (internal quotation marks and ci tations omitted). Accordingly, the Commonwealth’s e vidence was sufficient to establish that Cartagena had the requisite prior felony c onviction for the purposes of C ode § 18.2-308.2(A), and therefore, the evidence was sufficient to support Cartagena’s convictions for attempted possession of a firearm by a convicted felon a nd possession of a firearm by a c onvicted felon. B. Code § 18.2-308.2:2 Code § 18.2-308.2:2(A) requires th at a person seeking to purch ase a firearm from a licensed firearm dealer in Virgi nia must provide the dealer wit h written “consent . . . , on a form to be provided by the Department of State Police, to have the d ealer obtain criminal history record information.” In additi on to providing such consent, th e form requires that the prospective purchaser detail spe cific identifying information a nd answer certain questions, including whether the prospect ive purchaser “has . . . been con victed of a felony offense or found guilty or adjudicated delinquent a s a juvenile 14 years of age or older at the time of the offense of a delinquent act that would be a felony if committed by an a dult . . . .” Id. Code § 18.2-308.2:2(B)(1) provides that “[n]o [firearm] dealer shall sell, rent, trade or transfer from his inventory any such firearm to any other person who is a res ident of Virgini a until he has (i) obtained written consent a nd the other information on the c onsent form specified in

Virginia felonies and “any substa ntially similar offense under the laws of any state, the District of Columbia, the United St ates or its territories.”- 9 - subsection A . . . .” 6 In turn, Code § 18.2-308.2:2(K) makes it a Class 5 felony for any person to “willfully and intentionally mak[e] a materially false statemen t on the consent form required in subsection B or C or on such firearm transaction records as may be required by federal law . . . .” Cartagena was charged wit h violating Code § 18.2-308.2:2(K) fo r “willfully and intentionally make a false stat ement on a form consenting to a criminal history information check in connection with the pur chase of a firearm . . . .” 7 Specifically, the Commonwealth alleged that Cartagena’s representation tha t he had not been convicted of a felony on the required state consent form constituted a materially false statement prohibite d by Code § 18.2-308.2:2(K). 8 Making essentially the same argu ment he made regarding his con victions for violating Code § 18.2-308.2(A), Cartagena argue s on appeal that the evide nce was insufficient to prove he made “a materially false stateme nt as to whether he was ever co nvicted of a felony . . . [because t]he Commonwealth failed to prove that [his] New York convictio n qualifies as a felony” for the purposes of Code § 18.2-308.2:2. We disagree.

6 Code § 18.2-308.2:2(C) contains a s imilar prohibition on a fir earm dealer selling a firearm to a non-Virginia residen t without first obtaining the form required by subsection A of Code § 18.2-308.2:2. Cartagena indi cated on the state consent form that he was a Virginia resident.

7 Cartagena does not challenge in t his appeal that his statement s on the state consent form were willfully and intentionally made.

8 Although Cartagena also indicated on the federal form that he was not a convicted felon and Code § 18.2-308.2:2(K) applies bot h to the state consent fo rm and federal firearms forms, the parties focus on the state consent form. The indictment sp ecifically charges Cartagena with making “a false statement on a form consenting to a criminal history information check in connection with the purchase of a firearm . . . .” (Emphasis a dded). The state form required by Code § 18.2-308.2:2(A) that was fi lled out by Cartagena specifi cally provides that Cartagena “hereby consent[s] to having the t ransferor (seller) request a criminal history record information check be performed by the Department of State Police about me i n connection with this transaction . . . ,” and thus, is a form “consenting to a crimi nal history information check.” In light of our ultimate conclusion regarding the state consent fo rm, we need not, and thus do not, decide whether the federal f orm filled out by Cartagena falls w ithin the indictment’s description of “a form consenting to a criminal history information check.”- 10 - As noted above, the plain langua ge the General Assembly chose to utilize in Code § 18.2-308.2(A) makes clear tha t a convicted felon may not possess a firearm regardless of “whether such conviction or adjud ication occurred under the law s of the Commonwealth, or any other state, the District of Col umbia, the United States or anyterritory thereof . . . .” Although the reference to felony c onvictions in Code § 18.2-308.2:2 does not state explicitly that it encompasses convictions that ot her states have classified as fe lonies independent of how Virginia might classify the offenses, the lack of any limiting language, the information contained on the state consent form, and context all inexorably lead to the conclusion that Cartagena provided a materially false ans wer when he indicated that he ha d not been convicted of a felony. The relevant question on the sta te consent form asked: “Have you been convicted of a felony offense or found guilty or adjudicated delinquent as a j uvenile 14 years of age or older at the time of the offense of a de linquent act which would be a fe lony if committed by an adult?” There is nothing in the questi on that suggests that the questio n is somehow limited or qualified by the way Virginia punishes or classifies felonies. The quest ion’s absolute terms, “Have you been convicted of a felony offense . . .?,” requires that a per son who has ever been convicted of a felony anywhere answer in the affi rmative regardless of whether Virginia or another jurisdiction would have classified or punishe d the offense differently. Giv en his New York felony conviction, Cartagena could not a nswer the question truthfully with anything other than an affirmative response. This conclusion finds further s upport from information Cartage na was provided on the form itself. Immediately after the question re garding felony c onvictions, the form instructs a prospective purchaser to “See Exceptions on back of form.” It also requires that a prospective purchaser “Initial here to docum ent reading and understanding o f the Exceptions on the back of- 11 - form.” The “Exceptions” section of the state consent form Cart agena signed and initialed provides, in pertinent part, as follows: A person who has been convicted of a felony is not prohibited from purchasing, rece iving, or possessing a firearm if: (1) under the law where the conviction occurred , the person has been pardoned, this conviction ha s been expunged or set aside, or the person has had civil rights (the right to vote, sit on a ju ry and hold public office) restored AND (2 ) the person is not prohibit ed by the law where the conviction occurred from receiving or possessing firearms. Persons s ubject to this exception should answer “no” to question 7. It shall be unlawful for (i) any person who has been convicted of a felony . . . whether such conviction or adjudication occurred under the laws of the Commonwealth, or any other state, the District of Columbia, the Unite d States or any territory thereof , to knowingly and intentionally posse ss or transport any firearm

. (Emphasis added). This language makes clear that the question encompassed the Ne w York felony conviction as defined by New York. In stating th at a person is barred from possessing a firearm if “convicted of a felony . . . whe ther such conviction or adju dication occurred under the laws of the Commonwealth, or any other stat e, the District of Columbia, the United States or any territory thereof,” the form tracks the language of Code § 18.2-308.2(A). Thus, th e same reasons that support our conclusion t hat the prohibition of Code § 18.2 -308.2(A) is not limited to felonies that would be punished by a felony s entence in Virginia apply h ere as well. Moreover, the reference to the effect of a par don “under the law where the co nviction occurred” makes clear that the law of the state wher e the conviction occurred is to b e considered. Thus, the “Exceptions” section makes clear that a felony conviction from another state requires an affirmative response to the relev ant question even if Virginia would have classified or punished the offense differently.- 12 - Finally, our conclusion is consis tent with the purpose of the statutory scheme as a whole. The state consent form is desi gned to help ferret out prospecti ve gun purchasers who are barred by Code § 18.2-308.2(A) or other provi sions of law from possess ing firearms before a firearm can be sold. It would be absur d to bar persons with a felony c onviction under the laws of another state from possessing a firear m but allow such persons to answe r “no” to the felony question on the state consent form just because the other state punished th e offense differently than Virginia does. Given our conclusion regarding the meaning of the felony prohib ition in Code § 18.2-308.2(A), logic dictates t hat the same constructionof felony be applied for the purposes of establishing a convic tion for a violation of Code § 18.2-308.2:2(K) for making a materially false statement reg arding a prior felony conviction. Accordingly, because the evidence established that Cart agena previously had been convict ed of a felony under the laws of the state of New York, the evide nce was sufficient to establish that he made a materially false statement on the state consent f orm when he denied having ever been so convicted.
CONCLUSION Because the evidence established that Cartagena had a prior fe lony conviction under the laws of the state of New York, the evidence was sufficient to s upport the prior felony conviction element of his convictions for attempted possession of a firear m by a felon in violation of Code § 18.2-308 .2, possession of a firear m by a felon in violat ion of Code § 18.2-308.2, and falsifying a firearm consent form by making a materially false statement regarding a prior felony conviction in violation of Code § 18.2-308.2:2. Accordingly, h is convictions for these offenses are affirmed. Affirmed.