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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia.
Record No. 1799-02-3
ALVIN LEE PLUMLEY
COMMONWEALTH OF VIRGINIA
BY JUDGE JEAN HARRISON CLEMENTS
OCTOBER 7, 2003
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
Robert B. Armstrong for appellant.
Richard B. Smith, Senior Assistant Attorney General (Jerry W.
Kilgore, Attorney General, on brief), for appellee.
Alvin Lee Plumley was convicted on his plea of guilty of
possession of a firearm after
having been convicted of a felony, in violation of Code ?
18.2-308.2.On appeal, Plumley
contends the trial court erred in denying his motion to withdraw
his guilty plea before sentencing
because Code ? 18.2-308.2 did not prohibit him from possessing
a firearm on the porch of his home.
Finding no error, we affirm Plumley’s conviction.
As the parties are fully conversant with the record in this case
and because this
memorandum opinion carries no precedential value, this opinion
recites only those facts and
incidents of the proceedings as are necessary to the parties’
understanding of the disposition of this
The facts essential to this appeal are not in dispute. On
December 4, 2001, Plumley, a
previously convicted felon, fired a pistol from the porch of his
residence in the Town of Glasgow, in
Rockbridge County, Virginia. On February 4, 2002, he was
indicted for possession of a firearm by
a convicted felon, in violation of Code ? 18.2-308.2. On April
12, 2002, Plumley entered a plea of
guilty to the charge and was convicted of the offense by the
trial court. Prior to his sentencing on
July 10, 2002, Plumley filed a motion to vacate his guilty plea
and dismiss the indictment, arguing
that his conduct was not proscribed by Code ? 18.2-308.2 as it
existed on December 4, 2001.
Rejecting Plumley’s interpretation of the statute, the trial
court denied the motion and sentenced
Plumley in accordance with the statute.
On appeal, Plumley contends he was entitled to withdraw his
guilty plea before sentencing
because the version of Code ? 18.2-308.
in effect on December 4, 2001, did not prohibit him from
possessing a firearm within his residence or the curtilage of
his residence.2 The exception set forth
in subsection A of that statute, permitting possession of
certain weapons in a person’s residence or
the curtilage thereof, applied, he argues, to all firearms, not
just stun weapons and tasers. We
"Code ? 19.2-296 allows a defendant to withdraw a guilty
plea before sentence is imposed."
Jones v. Commonwealth, 29 Va. App. 503, 511, 513 S.E.2d 431, 435
(1999). "Whether a defendant
should be permitted to withdraw a guilty plea rests within the
sound discretion of the trial court to
be determined based on the facts and circumstances of each
case." Hall v. Commonwealth, 30
Va. App. 74, 79, 515 S.E.2d 343, 346 (1999). "By
definition, when the trial court makes an error
of law, an abuse of discretion occurs." Bass v.
Commonwealth, 31 Va. App. 373, 382, 523
S.E.2d 534, 539 (2000).
"In determining whether the trial court made an error of
law, ‘we review the trial court’s
statutory interpretations and legal conclusions de novo.’"
Rollins v. Commonwealth, 37 Va. App.
73, 78-79, 554 S.E.2d 99, 102 (2001) (quoting Timbers v.
Commonwealth, 28 Va. App. 187, 193,
503 S.E.2d 233, 236 (1998)). Thus, whether the trial court erred
in denying Plumley’s motion to
withdraw his guilty plea requires a de novo review of the
trial court’s statutory interpretation of
Code ? 18.2-308.2(A).
We addressed the same issue in Alger v. Commonwealth, 40 Va.
App. 89, 578 S.E.2d 51
(2003), petition for appeal granted, No. 030848 (Va. Sup. Ct.
Order of July 21, 2003). In that case,
Alger argued that possessing a shotgun in her own home on
September 7, 2001, was not prohibited
conduct under the version of Code ? 18.2-308.2(A) in effect at
that time. Like Plumley, Alger
contended the statute’s "exception for possession inside
the home or curtilage . . . applied to all
firearms[,] not just . . . stun weapons or tasers." Id. at
92, 578 S.E.2d at 52-53. Finding that such an
interpretation "would yield an absurd result," we
rejected Alger’s construction of the statute and
concluded that "the exception appl[ied] only to stun
weapons and tasers." Id. at 94, 578 S.E.2d at
54. We held, therefore, that the exception set forth in Code ?
18.2-308.2(A) "did not permit
convicted felons to possess firearms . . . in their residence or
the curtilage thereof." Id. at 94-95, 578
S.E.2d at 54.
The same reasoning and conclusions are equally applicable here.
Thus, for the reasons more
particularly stated in Alger, we hold the trial court did not
err in finding that Code ? 18.2-308.2
prohibited Plumley from possessing a firearm on the porch of his
home. It follows, then, that the
trial court did not abuse its discretion in denying Plumley’s
motion to withdraw his guilty plea
Accordingly, we affirm Plumley’s conviction.
Code ? 17.1-413, this opinion is not designated for publication.
also convicted in a bench trial of reckless handling of a firearm, in
violation of Code ? 18.2-56.1. He does not challenge this
conviction on appeal.
The version of
Code ? 18.2-308.2(A) in effect at the time of the subject offense
provided, in pertinent part, as follows:
It shall be unlawful for (i) any person who has been
convicted of a felony . . . to knowingly and intentionally
transport any (a) firearm or (b) stun weapon or taser as defined
? 18.2-308.1, except in such person’s residence or the
thereof . . . .
Plumley presents two additional questions: (1) whether the retroactive
application of Code ? 18.2-308.2, as amended subsequent to
December 4, 2001, renders it an ex
post facto law and (2) whether his conviction should be
reversed. As these questions were not
included in Plumley’s petition for appeal and we granted no
appeal on them, we do not address
them here. See Rule 5A:12(c).