Present: All the Justices

CARLYN MALDONADO-MEJIA
                                            OPINION BY
v.   Record No. 130204               JUSTICE DONALD W. LEMONS
                                         JANUARY 10, 2014
COMMONWEALTH OF VIRGINIA

              FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal, we consider: (1) whether Carlyn

Maldonado-Mejia ("Maldonado-Mejia") was under indictment at

the time she sought to purchase a firearm; (2) whether she

intentionally and willfully provided false information on a

firearm purchase form in violation of Code § 18.2-308.2:2(K);

and (3) if not, whether the trial court erred in revoking her

active supervised probation under the terms of a "Disposition

Continuance Order" and finding her guilty of felony child

abuse and neglect.

                   I.   Facts and Proceedings Below

      On October 18, 2010, Maldonado-Mejia was indicted for

felony child abuse and neglect, in violation of Code §§ 18.2-

371.1(B) and 18.2-10.     On November 5, 2010, she was arraigned

in the Circuit Court of Spotsylvania County ("circuit court")

and waived reading of the indictment.     Maldonado-Mejia entered

into a plea agreement with the Commonwealth that among other

things provided:

           I further understand that, the Circuit
           Court will defer entry of any finding of
           guilt in this matter and will suspend the
          imposition of the sentence recommended in
          paragraph 8 of this agreement, pending my
          completion of the prescribed program(s).
          I understand that I will be placed on
          active, supervised probation. I
          understand that successful completion of
          the program will result in the dismissal
          of the charges enumerated in this
          document.

At her May 31, 2011 trial, Maldonado-Mejia made an Alford plea

and presented the plea agreement to the circuit court.

The circuit court accepted Maldonado-Mejia’s guilty plea,

entered it on the record, found facts sufficient to convict,

but expressly withheld a finding of guilt.

     In an order entitled "Disposition Continuance Order" the

circuit court recited that the Commonwealth had:

          [A]gree[d] to recommend that the Court
          defer a finding of guilty for one year.
          During that period of time, the defendant
          shall keep the peace and be of good
          behavior; be placed on active supervised
          probation; and shall enter into and
          complete any and all programs set forth by
          the Department of Social Services. . . .
          If the defendant has kept the peace, been
          of good behavior and followed all other
          conditions of the order of this court, the
          treatment facility and probation, at the
          end of one year from this date, the Court
          shall dismiss the charge.

The circuit court placed Maldonado-Mejia on supervised

probation and imposed conditions outlined by the plea

agreement which included:

          Should the defendant fail to abide by the
          conditions of the plea agreement, she


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           shall be found guilty of a FELONY
           violation of 18.2-371.1(B) and sentenced
           to 5 years with all but 6 months suspended
           for a period of 5 years under the
           following conditions: keep the peace and
           be of good behavior; be placed on
           supervised probation upon her release; the
           Defendant will give a biological sample
           for DNA analysis pursuant to the Code of
           Virginia and cooperate fully in such
           procedure under the direction and
           supervision of her probation officer or a
           member of the Sheriff’s Office; and waives
           her Fourth Amendment rights against
           unreasonable searches and seizures at any
           time and by any law enforcement officer
           during the period of 5 years from her
           release from any incarceration.

     In July 2011, Maldonado-Mejia attempted to purchase a

firearm.   She completed a Bureau of Alcohol, Tobacco, and

Firearms form ("ATF form") which asked whether she was:

"[u]nder indictment or information in any court of a felony,

or any other crime, for which the judge could have imprisoned

[her] for more than one year."   In response, Maldonado-Mejia

clearly marked, "No."   The ATF form also asked, “Have you ever

been convicted in any court of a felony, or any other crime,

for which the judge could have imprisoned you for more than

one year, even if you received a shorter sentence including

probation?”   Maldonado-Mejia again marked, “No.”

     The state police investigated Maldonado-Mejia’s

application and discovered she had been indicted for child

neglect.   On August 15, 2011, a Spotsylvania County grand jury



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indicted Maldonado-Mejia for willfully and intentionally

making a false statement on the ATF form.   In October 2011,

she was tried and found guilty under Code § 18.2-308.2:2(K).

Because this conviction violated the conditions of her

supervised probation under the "Disposition Continuance

Order", the circuit court also convicted and sentenced her on

the earlier child neglect charge. Maldonado-Mejia was

sentenced to five years with all but six months suspended on

the child neglect charge and three months on the charge of

providing false information to purchase a firearm.

     Maldonado-Mejia appealed her convictions to the Court of

Appeals of Virginia.   On October 10, 2012, the Court of

Appeals issued a per curiam opinion holding that: 1)

Maldonado-Mejia made a false representation on the ATF form,

2) the evidence was sufficient for the trial court to find

that she intentionally lied on the ATF form, and 3) the

evidence was sufficient for the trial court to find that she

failed to comply with the conditions of the prior plea

agreement in the child neglect case.   Thereafter, a three-

judge panel of the Court of Appeals affirmed the per curiam

opinion.

     Maldonado-Mejia noted her appeal to this Court and we

awarded an appeal on the following assignments of error:




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 1. The trial court erred by finding that Appellant provided
    false information on the U.S. Department of Justice Bureau
    of Alcohol, Tobacco, and Firearms (ATF) form to purchase a
    firearm, as she was not under indictment or information for
    a felony at the time of the incident. The Court of Appeals
    erred in affirming the trial court and finding that the
    Appellant remained under indictment when she filled out the
    ATF form.

 2. The trial court erred by finding that Appellant acted
    intentionally and willfully, with criminal intent [sic] to
    make a false statement. The Court of Appeals erred in
    affirming the trial court and finding that Appellant acted
    intentionally and willfully.

 3. The trial court erred by finding Appellant guilty of felony
    child neglect & abuse pursuant to the show cause, as the
    evidence was insufficient for a conviction on the False
    Statement charge. The Court of Appeals erred in affirming
    the trial court and finding the trial cou[r]t's decision
    was not plainly wrong or unsupported by evidence.

                           II.   Analysis

                        A. Standard of Review

     Maldonado-Mejia's first assignment of error presents a

legal question concerning the meaning of "under indictment."

Such a question is reviewed de novo.     Smith v. Commonwealth,

282 Va. 449, 453-54, 718 S.E.2d 452, 454 (2011).

     For Maldonado-Mejia's second and third assignments of

error, we review the sufficiency of the evidence in the light

most favorable to the Commonwealth, and only reverse the trial

court when its decision is plainly wrong or without evidence

to support it.   Viney v. Commonwealth, 269 Va. 296, 299, 609

S.E.2d 26, 28 (2005).




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              B. Maldonado-Mejia Remained "Under Indictment"

       Maldonado-Mejia argues that her indictment was

extinguished upon making an Alford plea on May 31, 2011.       She

claims that an indictment is only intended to inform the

criminal defendant of the nature and cause of the accusation

against her and upon acceptance and entry of her plea

agreement on the record she was no longer “under indictment.”

In support of this contention, Maldonado-Mejia cites two

federal court decisions interpreting other states’ laws.   The

United States Court of Appeals for the Eighth Circuit noted in

discussing a Missouri case, "[T]he primary purpose of an

indictment or information is to give general notice to the

defendant of the charge against him."    United States v. Hill,

210 F.3d 881, 883-84 (8th Cir. 2000) (quoting State v. Higdon,

774 S.W.2d 498, 500 (Mo. Ct. 1989)). See also United States v.

Hartsfield, 387 F.Supp. 16, 17 (M.D. Fla. 1975).    However,

these cases are distinguishable because they interpret

statutory and common law schemes unique to Missouri and

Florida.

       For the resolution of this case we must look to Virginia

law.   Code § 19.2-231 provides:

                 If there be any defect in form in any
            indictment, presentment or information, or
            if there shall appear to be any variance
            between the allegations therein and the
            evidence offered in proof thereof, the


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          court may permit amendment of such
          indictment, presentment or information, at
          any time before the jury returns a verdict
          or the court finds the accused guilty or
          not guilty, provided the amendment does
          not change the nature or character of the
          offense charged.

(Emphasis added.)

The practical import of this statute informs our holding that,

in Virginia, Maldonado-Mejia remained under indictment until

she was acquitted or convicted of the charge in the

indictment.

     The expressly stated effect of the June 13, 2011 order of

the circuit court was to "defer . . . finding [Maldonado-

Mejia] guilty for one year."    Although the circuit court

accepted Maldonado-Mejia’s guilty plea and entered it on the

record, this was not a formal adjudication of guilt.    See

Starrs v. Commonwealth, 286 Va. __, __, __ S.E.2d __, __

(2013)(this day decided)("We therefore conclude that the

circuit court, upon accepting and entering Starrs' guilty

pleas in a written order, still retained the inherent

authority to withhold a finding of guilt, to defer the

disposition, and to consider an outcome other than a felony

conviction.").   Consequently, Maldonado-Mejia was neither

convicted nor acquitted of child neglect when she filled out

the ATF form in July of 2011.    She remained under indictment.




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            C. Evidence of "Willfully and Intentionally"
                 Making a Materially False Statement

        Code § 18.2-308.2:2(K) provides:

                Any person willfully and intentionally
                making a materially false statement on the
                consent form required in subsection B or C
                or on such firearm transaction records as
                may be required by federal law, shall be
                guilty of a Class 5 felony.

We recently held that Code § 18.2-308.2:2(K) applies to ATF

form 4473.       Smith, 282 Va. at 454, 718 S.E.2d at 455.

        In Smith, the defendant was arrested on a felony warrant

charging him with possession of marijuana with intent to

distribute.        Id. at 452, 718 S.E.2d at 453.   After his arrest

and release on bond, Smith's attorney sent him a letter

informing him that his case was certified to the grand jury

and would be set for trial on term day — which was November

13th.     Id.

        On November 13, 2007, the grand jury indicted Smith for

possession of marijuana with intent to distribute.         Id.   Two

days later Smith attempted to purchase a firearm.         He filled

out an ATF form and clearly indicated that he was not

"currently under indictment."         Id.   At the time Smith filled

out the ATF form, he had not been contacted by his lawyer to

notify him of his indictment and he had not been arraigned by

the circuit court.        Id.   From this evidence, we concluded that

while Smith knew his criminal indictment was forthcoming, he


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did not know he was currently under criminal indictment when

he filled out the ATF form.   Id. at 453, 718 S.E.2d at 455-56.

Therefore, we held that he did not willfully and intentionally

make a materially false statement on the firearm form. Id.

     In Smith, we addressed Code § 18.2-308.2:2(K) and

observed:

            "Willfully" is a word of many meanings
            whose construction often depends upon
            context. Bryan v. United States, 524 U.S.
            184, 191 (1998). Judge Learned Hand has
            been quoted as observing, off the bench:
            "'willfully' . . . It's an awful word! It
            is one of the most troublesome words in a
            statute that I know." See United States v.
            Hayden, 64 F.3d 126, 129, n.5 (3d Cir.
            1995).

Smith, 282 Va. at 455 n.1, 718 S.E.2d at 452 n.1.   We held:

"[T]he Commonwealth [must] prove, beyond a reasonable doubt,

as an element of the crime, that the defendant had actual

knowledge that his statement was false when he made it. There

must be evidence to support a finding that he knew the truth

but nevertheless intended to, and did, utter a falsehood."

Id. at 455, 718 S.E.2d at 455.

     In contrast to the case presented against the defendant

in Smith, there was sufficient evidence in the present case to

support the circuit court’s finding that Maldonado-Mejia knew

she was under indictment when she completed the ATF form.

Unlike Smith, Maldonado-Mejia had already been arraigned.    The



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circuit court asked her whether she understood the nature of

the crime with which she was charged and whether she wished to

have the indictment read to her in its entirety.   Maldonado-

Mejia answered, "No, sir."    Furthermore, at no point did the

circuit court instruct her that she had been acquitted or

convicted or that her indictment had been extinguished.   Given

the totality of the evidence we cannot say the circuit court’s

judgment was plainly wrong or without evidence to support it.

Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786,

788 (2010); Code § 8.01-680.

     D. The Conviction for Felony Child Neglect Was Proper

     Because we affirmed Maldonado-Mejia's conviction under

Code § 18.2-308.2:2(K), the circuit court did not err when it

found that she violated the good behavior conditions of her

supervised probation outlined in the "Disposition Continuance

Order" entered June 13, 2011.

                       III.     Conclusion

     For the reasons stated, we hold that the Court of Appeals

did not err by affirming the judgments of the circuit court.

We will affirm the judgment of the Court of Appeals.

                                                        Affirmed.


JUSTICE McCLANAHAN, with whom JUSTICE MIMS joins, concurring.




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     I concur in the judgment of the Court.   With regard to

the majority's discussion in Part II.B., however, I write

separately to emphasize that the reason that there was no

formal adjudication of guilt is because the terms of the plea

agreement Maldonado-Mejia entered into with the Commonwealth

provided for a deferred disposition.   Specifically, the plea

agreement stated that she would enter an Alford plea to the

charge of felony child neglect and that an actual finding of

guilt would not be made at the time of her May 31, 2011

hearing.   Therefore, by accepting the terms of the plea

agreement between Maldonado-Mejia and the Commonwealth, the

circuit court continued the case for future disposition.    Rule

3A:8(c)(3)(upon acceptance of plea agreement court shall

inform defendant of its judgment and sentence will embody the

disposition provided for in the agreement).




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