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
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
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
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.
The judgment of the trial court is affirmed.