                   COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia


JOSEPH CALVIN QUARLES
                                          MEMORANDUM OPINION * BY
v.   Record No. 0943-00-2                JUDGE SAM W. COLEMAN III
                                            FEBRUARY 13, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       Thomas N. Nance, Judge

           Andrea C. Long (Charles C. Cosby, Jr.; Boone,
           Beale, Cosby & Long, on brief), for
           appellant.

           Eugene Murphy, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


      Joseph Calvin Quarles was convicted in a bench trial of

possession of heroin and possession of a firearm while in

possession of heroin.   He was sentenced to two years imprisonment,

suspended for ten years, on the possession offense and sentenced

to the mandatory five-year term of imprisonment for the firearm

offense.   On appeal, Quarles challenges the conviction for

possession of a firearm while in possession of heroin, arguing

that Code § 18.2-308.4 is unconstitutional.   He contends that the

statute fails to proscribe a punishment for possession of a


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
firearm while in simple possession of narcotics and that the

penalty provisions of Code § 18.2-308.4 are ambiguous.      We

disagree and affirm.

                               BACKGROUND

     Quarles was approached by two police officers, who were on

routine patrol.   The officers approached Quarles after they

observed him urinating in public.       Before one of the officers had

an opportunity to pat-down Quarles for weapons, Quarles informed

the officer that he had a "burner" in his pocket.      Quarles

attempted to flee, but he was apprehended moments later.        The

officers searched Quarles and found a .22 caliber handgun and a

folded dollar bill, which contained a tan, powdery substance that

spilled when the bill was unfolded.      The dollar bill tested

positive for heroin residue.    Quarles' appeal challenges the

mandatory five-year sentence imposed under Code § 18.2-308.4.

                               ANALYSIS

     "When testing the constitutional validity of statutes,

courts shall presume the statute to be valid."        Gray v.

Commonwealth, 30 Va. App. 725, 731, 519 S.E.2d 825, 828 (1999).

"Consequently, the burden to show the constitutional defect is

on the challenger."    Id. at 732, 519 S.E.2d at 828.

          "Every act of the legislature is presumed to
          be constitutional, and the Constitution is
          to be given a liberal construction so as to
          sustain the enactment in question, if
          practicable." "When the constitutionality
          of an act is challenged, a heavy burden of

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          proof is thrust upon the party making the
          challenge. All laws are presumed to be
          constitutional and this presumption is one
          of the strongest known to the law."

Moses v. Commonwealth, 27 Va. App. 293, 298-99, 498 S.E.2d 451,

454 (1998) (citations omitted).   "The plain, obvious, and

rational meaning of a statute is always preferred to any

curious, narrow or strained construction; a statute should never

be construed so that it leads to absurd results."    Branch v.

Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1902).

     Code § 18.2-308.4 provides in pertinent part:

               A. It shall be unlawful for any person
          unlawfully in possession of a controlled
          substance . . . to simultaneously with
          knowledge and intent possess any firearm.

               B. It shall be unlawful for any person
          to possess, use, or attempt to use any
          pistol, shotgun, rifle, or other firearm or
          display such weapon in a threatening manner
          while committing or attempting to commit the
          illegal manufacture, sale, distribution, or
          the possession with the intent to
          manufacture, sell, or distribute a
          controlled substance classified in Schedule
          I or Schedule II of the Drug Control Act
          . . . of Title 54.1 or more than one pound
          of marijuana.

               Violation of this section shall
          constitute a separate and distinct felony
          and any person convicted thereof shall be
          guilty of a Class 6 felony, shall not be
          eligible for probation, and shall be
          sentenced to a minimum, mandatory term of
          imprisonment of five years, which shall not
          be suspended in whole or in part.




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     Quarles contends that Code § 18.2-308.4 is

unconstitutionally vague because it fails to proscribe a penalty

for violation of Subsection A, that is, possession of a firearm

while simultaneously possessing a controlled substance, and that

to the extent the statute provides a penalty, it is ambiguous

and confusing.   He takes the view that the only punishment

provided for a violation of Code § 18.2-308.4 is contained in

the third unlettered paragraph which, he argues, applies only to

Subsection B.    We disagree.

     To construe the statute as Quarles urges would have us

attribute to the General Assembly the creation of a criminal

offense without providing for any punishment for a violation of

that offense, a result that is irrational and which we will not

ascribe to the legislature.     We hold that the penalty provision

of the statute proscribes the penalty for a violation of either

Subsection A or B.   Thus, Code § 18.2-308.4(A) and the penalty

provision, when read together, provide that possession of a

controlled substance while simultaneously possessing a firearm

is a Class 6 felony, requiring imposition of a mandatory

five-year term of imprisonment for such a violation.

     Both a rational reading of the statute and its legislative

history support this construction.      Prior to the 1999 amendment

of the statute, Code § 18.2-308.4 provided that a violation of

Subsection A, possession of a controlled substance while


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simultaneously possessing a firearm, was a Class 6 felony and

that a violation of Subsection B, possession of a firearm while

committing or attempting to commit the illegal manufacture,

sale, distribution, or the possession with the intent to

manufacture, sell, or distribute a controlled substance, was a

separate and distinct felony punishable by a mandatory

three-year term of imprisonment for the first offense and by a

mandatory five-year term of imprisonment for a subsequent

offense.   Thus, each subsection provided for a separate penalty

for each separately defined offense.   However, when the

legislature amended Code § 18.2-308.4 in 1999, it provided that

a "[v]iolation of this section shall constitute" a Class 6

felony punishable by a mandatory five-year term of imprisonment.

(Emphasis added).   Thus, the General Assembly declared, in

effect, that possession of a firearm while simultaneously

possessing a Schedule I or II controlled drug shall be a Class 6

felony with a mandatory minimum five-year term of imprisonment,

the same as possessing or using a firearm while committing or

attempting to commit the manufacture, sale, or distribution of a

Schedule I or II controlled substance.   The 1999 amendment

provided that regardless of the drug offense involved,

possession of a firearm while simultaneously engaging in any of

the enumerated drug offenses is a Class 6 felony subject to a

mandatory five-year term of imprisonment.   Quarles' contention


                             - 5 -
that his five-year mandatory sentence is void because Code

§ 18.2-308.4 fails to provide a punishment for possession of a

controlled substance while simultaneously possessing a firearm

is without merit.

     In addition, we hold that the statutorily mandated

five-year term of imprisonment proscribed in Code § 18.2-308.4

is neither vague nor unconstitutional.

          Every person has a fundamental right to
          liberty in the sense that the Government may
          not punish him unless and until it proves
          his guilt beyond a reasonable doubt at a
          criminal trial conducted in accordance with
          the relevant constitutional guarantees. But
          a person who has been so convicted is
          eligible for, and the court may impose,
          whatever punishment is authorized by statute
          for his offense, so long as that penalty is
          not cruel and unusual, and so long as the
          penalty is not based on an arbitrary
          distinction that would violate the Due
          Process Clause of the Fifth Amendment.

Chapman v. United States, 500 U.S. 453, 465 (1991) (citations

omitted); see also Rummel v. Estelle, 445 U.S. 263, 274 (1980)

(acknowledging reluctance to review legislatively mandated terms

of imprisonment).   The legislature "has the power to define

criminal punishments without giving the courts any sentencing

discretion."   Chapman, 500 U.S. at 467 (citing cases upholding

mandatory minimum sentences for certain offenses).   "A

sentencing scheme providing for 'individualized sentences rests

not on constitutional commands, but on public policy enacted

into statutes.'"    Id.   (citation omitted).

                               - 6 -
     Here, as we have held, the legislature provided a

punishment for possession of a Schedule I or II controlled

substance while simultaneously possessing a firearm.   The

legislature, in its 1999 amendment, classified possession of a

controlled substance while simultaneously possessing a firearm

and possessing or using a firearm while committing or attempting

to commit any of several specified drug offenses as Class 6

felonies.   In 1999, the legislature imposed a minimum mandatory

sentence for a violation of either offense.   By amending the

statute to proscribe a mandatory minimum sentence for either

violation of the statute, the legislature merely determined that

it was removing from a trial court's discretion the power to

sentence the defendant within a statutorily proscribed range of

punishments.   To do so is not vague or unconstitutional.    We,

therefore, uphold the punishment scheme for Code § 18.2-308.4.

     Accordingly, we affirm the judgment of the trial court.

                                                            Affirmed.




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