Stone v. Commonwealth

823 S.E.2d 241

Ronnie Lee STONE, Appellant,

v.COMMONWEALTH of Virginia, Appellee.

Record No. 180564

Supreme Court of Virginia.

February 21, 2019

Appellant Ronnie Lee Stone pled guilty to five counts of distribution of cocaine, second or subsequent offense, one count of possession of a firearm while possessing cocaine with intent to distribute, and one count of possession of a firearm by a convicted felon. As to the five cocaine distribution offenses, the circuit court sentenced Stone to an active sentence equal to the mandatory minimum sentence of three years of imprisonment on each offense under Code § 18.2-248(C).¹ On appeal, Stone argues the Court of Appeals erred in upholding the circuit court’s ruling that he did not qualify under the so-called "safety valve" provision of Code § 18.2-248(C)² for exemption from the three-year mandatory minimum sentences on four of the cocaine distribution offenses.³ Stone v. Commonwealth , Record No. 0347-17-3, 2018 WL 1473619 (Va. Ct. App. March 27, 2018) (unpublished). We disagree, and affirm.

Code § 18.2-248(C) provides that a person guilty of second-offense cocaine distribution may "be sentenced to imprisonment for life or for any period not less than five years, three years of which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence." Subsection (C) further provides, however, that this mandatory minimum sentence "shall not be applicable if the court finds" that all of the factual predicates listed in subdivisions (4)(a) through (4)(e) of this subsection have been established. Id . Here, only the second factual predicate prescribed in subdivision (4)(b) of subsection (C) is at issue, which states: "[t]he person did not ... possess a firearm ... in connection with the offense ...." Id .

Recently in Hall v. Commonwealth , 296 Va. 577, 821 S.E.2d 921 (2018), we addressed one of the other factual predicates under the safety valve provision of Code § 18.2-248(C) to determine its applicability in that case.⁴ In doing so, we held that "the burden of production and persuasion" in establishing the factual predicates that provide potential relief from the mandatory minimum sentence under Code § 18.2-248(C)"falls on the defendant seeking to invoke [this] safety-valve provision." 296 Va. at 586, 820 S.E.2d 611. This is consistent with decisions of federal courts applying similar sentencing safety valve provisions in which they have likewise held that it was the defendant’s burden to prove the factual predicates for relief. See United States v. Bolton , 858 F.3d 905, 913 (4th Cir. 2017) (applying United States Sentencing Guidelines ("U.S.S.G.") § 5C1.2(a) ); United States v. Altamirano-Quintero , 511 F.3d 1087, 1098 (10th Cir. 2007) (applying 18 U.S.C. § 3553(f) ); United States v. Anderson , 452 F.3d 87, 90-91 (1st Cir. 2006) (applying U.S.S.G. § 5C1.2(a) ); United States v. Bolka , 355 F.3d 909, 912 (6th Cir. 2004) (same). The burden placed upon the defendant in each of these cases was a preponderance of the evidence standard of proof, which we hereby adopt as the standard for Code § 18.2-248(C) ’s safety valve provision. See also Ballagh v. Fauber Enterprises, Inc. , 290 Va. 120, 124, 773 S.E.2d 366 (2015) (adopting, for claims alleging violations of the Virginia Consumer Protection Act, Code §§ 59.1–196 to –207, a preponderance of the evidence standard as the "default standard of proof" where the General Assembly has not expressly provided for a higher standard).

We conclude that Stone failed to carry his burden under Code § 18.2-248(C) to prove by a preponderance of the evidence that he did not possess a firearm in connection with the four cocaine distribution offenses on which he challenges the circuit court’s imposition of the three-year mandatory minimum sentences.

"To properly review the trial court’s application of the law to the facts, ‘[w]e give deference to the trial court’s factual findings and view the facts in the light most favorable to ... the prevailing part[y] below." Kim v. Commonwealth , 293 Va. 304, 311, 797 S.E.2d 766 (2017) (quoting Caplan v. Bogard , 264 Va. 219, 225, 563 S.E.2d 719 (2002) ). Furthermore, "[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is ‘plainly wrong or without evidence to support it.’ " Gerald v. Commonwealth , 295 Va. 469, 479, 813 S.E.2d 722 (2018) (quoting Pijor v. Commonwealth , 294 Va. 502, 512, 808 S.E.2d 408 (2017) (quoting Code § 8.01-680 ) ); see Commonwealth v. Giddens , 295 Va. 607, 613, 816 S.E.2d 290 (2018) (same).

Two written detailed joint stipulations of fact admitted during the hearing on Stone’s guilty pleas established the following. Four times during a one-month period a confidential informant went to Stone’s residence and purchased cocaine from him. Shortly after the controlled buys, the police executed a search warrant at Stone’s residence. During the search, the police found, among other contraband, cocaine on Stone’s person and crack cocaine in his bedroom, totaling approximately one ounce. The police also discovered a loaded AK-47 assault rifle next to his bed and a loaded AK-47 magazine in a nightstand adjacent to the firearm. This search accounted for one of Stone’s cocaine distribution convictions on his guilty pleas, while the confidential informant’s controlled buys accounted for Stone’s other four cocaine distribution convictions—for which the three-year mandatory minimum sentences are at issue here.

In addition to the two joint stipulations, at Stone’s sentencing hearing, the Commonwealth proffered a statement from Stone’s wife indicating that about two months prior to the execution of the search warrant, Stone "obtained the firearm from a relative and had it in the house for protection" because they had been "robbed previously." Absent any objection to this proffer from Stone, the circuit court admitted this proffer "as a stipulation." Furthermore, Stone offered no evidence on his own behalf in relation to his possession of the firearm, or on any other matter concerning his offenses, at his sentencing hearing.

The stipulated evidence thus established that Stone had been in actual or constructive possession of a firearm, i.e., an AK-47 assault rifle, at his residence during the time period when the four controlled drug buys between Stone and the confidential informant took place at...