COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

JOSEPH WILMER GILLEY, JR. 

v. Record No. 0048-95-2 OPINION BY 

 JUDGE JERE M. H. WILLIS, JR. 

COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Cullen D. Seltzer, Assistant Public Defender 

(David J. Johnson, Public Defender; Office of 

the Public Defender, on brief), for 

appellant. 

 Leah A. Darron, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 On appeal from his convictions of attempted first degree 

murder and possession of a firearm by a convicted felon, Joseph 

Wilmer Gilley, Jr. contends that the trial court erred in 

admitting his prior felony convictions into evidence during the 

sentencing phase of his trial, because the Commonwealth had not 

complied with the fourteen day notice requirement of Code 

§ 19.2-295.1. We find no error and affirm the judgment of the 

trial court. 

 Prior to trial, Gilley objected to the introduction of his 

prior conviction for possession of methamphetamine at the 

sentencing phase of the trial because the Commonwealth had not 

given him notice fourteen days before trial as required by Code 

§ 19.2-295.1. The trial court admitted the order of conviction, 
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with the sentence redacted, into evidence at the guilt phase, for 

the limited purpose of proving that Gilley had been convicted 

previously of a felony. 

 During the guilt phase of the trial, Gilley testified that 

he had been convicted previously for possession of 

methamphetamine, distribution of marijuana, and carrying a 

concealed weapon. During the sentencing phase, the Commonwealth 

introduced into evidence Gilley's prior convictions of possession 

of marijuana and of carrying a concealed weapon. The defense did 

not object. 

 Gilley contends that the fourteen day notice requirement of 

Code § 19.2-295.1 is mandatory because it states that "the 

Commonwealth shall provide to the defendant photocopies of 

certified copies of the defendant's prior criminal convictions 

which it intends to introduce at sentencing. . . ." (emphasis 

added). He argues that because the Commonwealth failed to 

provide certified copies of his prior convictions for possession 

of marijuana and carrying a concealed weapon to him timely, the 

Commonwealth should have been barred from introducing evidence of 

those convictions at sentencing. 

 Gilley further contends that the Commonwealth should not 

have been allowed to refer during sentencing to his prior 

conviction of possession of methamphetamine, which had been 

admitted during the guilt phase of the trial. He argues that the 

trial court had admitted the prior conviction for the limited 
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purpose of proving an element of the charge of possession of a 

firearm after having been convicted of a felony. He argues that 

Code § 19.2-295.1 contains no exemption from the fourteen day 

requirement where a prior felony conviction is proven during the 

guilt phase of the trial. 

 Gilley further argues that evidence of his prior convictions 

was prejudicial and irrelevant and thus was inadmissible evidence 

of prior bad acts. He did not include this issue in his question 

presented. Therefore, it will not be considered. Rule 5A:12. 

 Code § 19.2-295.1, as it was in force at the time of trial, 

provided, in pertinent part: 

 In cases of trial by jury, upon a finding 

that the defendant is guilty of a felony, a 

separate proceeding limited to the 

ascertainment of punishment shall be held as 

soon as practicable before the same jury. At 

such proceeding, the Commonwealth shall 

present the defendant's prior criminal 

convictions by certified, attested or 

exemplified copies of the record of 

conviction, . . . . The Commonwealth shall 

provide to the defendant fourteen days prior 

to trial photocopies of certified copies of 

the defendant's prior criminal convictions 

which it intends to introduce at sentencing. 

 Assuming, without deciding, that the fourteen day notice 

requirement is mandatory, we nonetheless find no error in the 

trial court's rulings. 

 Code § 19.2-295.1 creates a category of evidentiary 

admissibility. It is not a rule of evidentiary exclusion. 

Evidence that is otherwise admissible is not dependent upon the 

statute for admissibility. Gilley's prior conviction for 
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possession of methamphetamine was admissible during the guilt 

phase of his trial as proof of a required element of a crime with 

which he was charged. The sentence was redacted, and the jury 

was properly instructed, to insure that the order was considered 

by the jury for that purpose only at the guilt phase. However, 

the conviction order thereby became a part of the evidence in the 

case and the jury, at the sentencing phase, "would necessarily 

have access to the evidence presented in the guilt phase of the 

trial." Watkins v. Commonwealth, 229 Va. 469, 480, 331 S.E.2d 

422, 431 (1985), cert. denied, 475 U.S. 1099 (1986). The trial 

court did not err in permitting the Commonwealth to argue that 

prior conviction at the sentencing phase. 

 Gilley did not object to the admission at the sentencing 

phase of his prior convictions for possession of marijuana and 

carrying a concealed weapon. His pretrial objection related only 

to his prior conviction for possession of methamphetamine. 

Therefore, he is precluded from challenging on appeal the 

admissibility of the marijuana and concealed weapon convictions. 

 Rule 5A:18. 

 The judgment of the trial court is affirmed. 

 Affirmed.