COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, ∗ Judges Frank and Clements Argued at Chesapeake, Virginia

RODNEY HILLARD MEMORANDUM OPINION ∗∗ BY v. Record No. 0276-05-1 JUDGE JEAN HARRISON CLEMENTS APRIL 18, 2006 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS David F. Pugh, Judge (Cathy E. Krinick; Law Offices of Krinick & Segall, on brief), for appellant. Appellant submitting on brief. Virginia B. Theisen, Assistan t Attorney Genera l (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Rodney Hillard (appellant) ap peals the five-year sentence im posed in accordance with the jury’s recommendation follo wing his second or subsequent conv iction for use of a firearm in the commission of a felony under Code § 18.2-53.1. 1 Appellant contends that , under the circumstances of this case, the trial cour t erred by instructing the jury to fix hi s sentence at five, rather than three, years. For the reasons that follow , we affirm appellant’s sentence. As the parties are fully co nversant with the record in this case, and because this memorandum opinion carries no pr ecedential value, this opinion recites only those facts and

∗ On April 1, 2006, Judge Felton succeeded Judge Fitzpatrick as chief judge.

∗∗ Pursuant to Code § 17.1-413, this opin ion is not designate d for publication.

1 Appellant was also convicted in this case of malicious wounding. He raises no issue as to that conviction on appeal.- 2 - incidents of the proceedings as ar e necessary to the parties’ unders tanding of the disposition of this appeal.
I. BACKGROUND In January 1988, appellant was convicted of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. In March 2004, appellant was indicted in th e instant case for use of a firearm “while committing malicious wounding,” in violation of Code § 18.2-53.1. The indictment did not indicate that he had previously been convicted of use of a fire arm in the commission of a felony. The Commonwealth offered no evidence during the guilt phase of appellant’s trial to show he had a previous convict ion under Code § 18.2-53.1. Nor did the trial court instruct the jury that appellant was being tried for a sec ond or subsequent violation of Code § 18.2-53.1. After deliberating, the jury found appellant guilty as charged in the indictment. During the sentencing phase of trial, the Commonwealth introduced, and the trial court admitted into evidence without objection, a certi fied copy of the orde r of appellant’s 1988 conviction under Code § 18.2-53.1. Over appellant’s objection, the trial court gave the jury a sentencing verdict form that stated: “We, the ju ry, having found the defendant guilty of use of a firearm in the commission of a felony; to-w it: malicious wounding, fix his punishment at imprisonment for five (5) years.” The court ga ve the jury no other in struction concerning the firearm charge. Making no finding that appella nt was a second or subsequent offender under Code § 18.2-53.1, the jury fixed appellant’s se ntence at five years, as instructed. Thereafter, the trial court sentenced appellant in accordance with the jury’s recommendation, and this appeal followed.- 3 - II. ANALYSIS Appellant contends the trial c ourt erred at sentencing by instructing the jury to impose a sentence of five years. He claims that, b ecause that sentence constituted the punishment for a second or subsequent convicti on under Code § 18.2-53.1, the indictment had to specifically notify him that he was being charged under the stat ute as a second or subs equent offender. He also claims that, because his prior conviction for use of a firearm was an element of the offense for which he was sentenced under Code § 18.2-53.1, the Commonwealth had to prove that prior conviction during the guilt phase of trial. He concludes that, because the indictment did not notify him of the offense for which he was sentenced and because the Commonwealth failed during the guilt phase to prove he had previously been convicted under Code § 18.2-53.1, the verdict form instructing the jury to sentence him to five, rather than th ree, years was erroneous and should not have been given to the jury. Code § 18.2-53.1, in relevant part, provides: It shall be unlawful for any person to use or attempt to use any pistol, rifle, or other fir earm or display such weapon in a threatening manner while committing or attempting to commit . . . malicious wounding . . . . Violation of this section shall constitute a separate and distinct felony and any person found guilty thereof shall be sentenced to a mandatory minimum term of imprisonment of three years for a first conviction, and to a mandatory minimum term of five years for a sec ond or subsequent conviction under the provisions of this section. (Emphasis added.) Code § 18.2-53.1 is a “specific recidivi st” statute. Batts v. Commonwealth , 30 Va. App. 1, 12, 515 S.E.2d 307, 313 (1999). “[T]he purpose of th e statute is to deter violent criminal conduct rather than to reform . . . .” Ansell v. Commonwealth , 219 Va. 759, 763, 250 S.E.2d 760, 762 (1979). To achieve this purpose, Code § 18.2-53.1 “imposes additional punishment for a subsequent conviction for the same offense.” Stubblefield v. Commonwealth , 10 Va. App.- 4 - 343, 347, 392 S.E.2d 197, 198 (1990) (emphasis omitted). Specific recidivist “statutes may by their language require that the indictment state that the offens e charged is a second or subsequent offense. No such requirement, however , is mandated by [Code] § 18.2-53.1.” Ansell , 219 Va. at 762, 250 S.E.2d at 762 (citation omitted). In promulgating the principle above , the Supreme Court, in Ansell, addressed whether the enhanced punishment portion of Code § 18.2-53.1 was applicable to three separate offenses that were committed on the same day and tried together. Id. at 760, 250 S.E.2d at 761. There, the defendant pled guilty to three indictments for us e of a firearm in the commission of a felony, in violation of Code § 18.2-53.1, and was found guilty of all three offenses. Id. at 760-61, 250 S.E.2d at 761. Although the defendant had no prev ious conviction under the statute, he was sentenced as a first-time offender for the first o ffense, and as a second and subsequent offender for the remaining offenses. Id. at 761, 250 S.E.2d at 761. Under such factual circumstances, the indictments could not recite th at the defendant was being trie d as a second or subsequent offender. Nonetheless, the Supreme Court affirm ed the sentences on appeal, concluding that the enhanced punishment provision of Code § 18.2-53.1 was applicable and that the sentences were consistent with the statute’s underlying deterrent purpose. Id. at 763, 250 S.E.2d at 763. Similarly, in Stubblefield , we affirmed the defendant’s conviction as a second or subsequent offender under Code § 18.2-53.1 where the indictment did not recite that the defendant was being charged as such an offende r. 10 Va. App. at 346, 392 S.E.2d at 198. There, the defendant, who had no previous convictions under the statute at the time of the indictment, was charged as a first-time offender. Id. at 345, 392 S.E.2d at 197. One month after the indictment was issued, the defe ndant was convicted in an unre lated case of violating Code § 18.2-53.1. Id. at 346, 392 S.E.2d at 198. He filed a motion for a bill of particulars on the aforementioned indictment, to which the Comm onwealth responded, “Having been previously- 5 - convicted of using a firearm during the commission of robbery, the defendant [violated Code § 18.2-53.1].” Id. The defendant argued that the indict ment and bill of particulars failed to notify him that he was being charged as a second or subsequent offender. The trial court rejected the argument and convicted him as such an offende r. In affirming the conviction, we declared that “Ansell makes clear that Code § 18.2-53.1 has no requirement of pr ior notice to the defendant.” Id. at 348, 392 S.E.2d at 199. Read together, Ansell and Stubblefield clearly establish that an indictment alleging an offense under Code § 18.2-53.1 need not recite language notifying a defendant that he is being charged as a second or subsequent offender. Th e essential purpose of the statute, deterrence through punishment, is achieved despite the la ck of such a recitati on. Although we recognize that appellant, unlike the defendants in Ansell and Stubblefield , had a previous conviction at the time of the indictment, this distinction alone does not warrant any prerequisite of notice inconsistent with those decisions. Accordingly, we conclude that langua ge in the indictment notifying appellant that he was being tried as a second or subsequent offender was not required. We further conclude that a ppellant’s argument that the Commonwealth was required to prove his previous conviction under Code § 18.2- 53.1 during the guilt phase of trial is also without merit. In Miller v. Commonwealth , 22 Va. App. 497, 471 S.E.2d 780 (1996), we reviewed a sentence imposed upon a defendant who had been convicted as a second or subsequent offender, pursuant to Code § 18.2-53.1. There, the defendant was tried and convicted as a first-time offender of violating Code § 18.2-53.1. 2 Id. at 499, 471 S.E.2d at 781. During the guilt phase of trial, the Commonwealth presente d no evidence to prove the defendant had been previously convicted of viola ting the statute. However, at sentencing, the Commonwealth

2 The facts of Miller permit the reasonable inference that the indictment against the defendant recited no language informing him that he was being ch arged as a second or subsequent offender under Code § 18.2-53.1.- 6 - introduced evidence to prove that, four days prior to the guilt phase, the defendant had been convicted under the statute in an adjoining locality. Id. at 500, 471 S.E.2d at 781. The trial court accepted the Commonwealth’s evidence and sentenced the defendant as a second or subsequent offender. Id. at 498-99, 471 S.E.2d at 780-81. On appeal, we affirmed the sentence in Miller , explaining that, because Code § 18.2-53.1 is “aimed at punishment of specific behavior, not reform,” Stubblefield , 10 Va. App. at 347, 392 S.E.2d at 198, we hold that the relevant inquiry under Code § 18.2-53.1 is whether, at the time of sentencing , a conviction entered is a “second or subsequent conviction.” Here, the defendant had been pr eviously convicted . . . of violating Code § 18.2-53.1 at th e time of sentencing for the charged offense. Therefore, the charged offense was a “second or subsequent conviction,” and th e trial court did not err by sentencing the defendant as a “recidivist.” Id. at 502, 471 S.E.2d at 782 (first emphasis omitted). It is clear, therefore, that, contrary to appellant’s claim, the Commonwealth need not prove a defendant’s prior use of a firearm conviction during the guilt phase of trial. Rather, as in Miller , the Commonwealth is permitted to introdu ce evidence at sentencing to prove that conviction. Here, appellant had been previously convicted of violating Code § 18.2-53.1 at the time of sentencing for the instant offense. Pres enting a certified copy of an order proving that conviction, the Commonwealth perm issibly established at sentenci ng that the instant offense was appellant’s second or subsequent use of a firearm conviction. Although we conclude that appe llant’s arguments are without merit, we note that, as the Commonwealth acknowledges, the sent encing phase of trial was not w holly without error, in that there was no finding made by the jury at senten cing that appellant’s conviction for use of a firearm was a second or subseque nt conviction. Such a finding s hould have been made in order- 7 - for appellant to be sentenced to the mandato ry minimum term of five years under Code § 18.2-53.1. That error, however, was harmless. At th e time of sentencing, appellant’s previous conviction under Code § 18.2-53.1 already existe d. The Commonwealth had presented, and the trial court had received into evidence, a certified c opy of an order proving that previous conviction. Appellant raised no ch allenge, either here or at sent encing, to the validity of his previous conviction or the order presented in support ther eof. We conclude, therefore, that the error at sentencing—the trial court’s use of a pena lty phase verdict form that precluded the jury from making a finding that appellant’s convic tion for use of a firearm was a second or subsequent conviction—was harmless. See Phoung v. Commonwealth , 15 Va. App. 457, 465-66, 424 S.E.2d 712, 717 (1992) (holding that an erro r in a jury instruction is harmless where “[t]he outcome would have been the same had th e instruction been correct”); Neder v. United
States , 527 U.S. 1, 17 (1999) (“[W]her e a reviewing court conclude s beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.”).
III. CONCLUSION For these reasons, we affirm appellant’s sentence. Affirmed.