King v. Commonwealth, Record No. 0397-22-1 (Va. Ct. App. June 6, 2023)
In this case, the Court of Appeals explores the limits of the Miller defense.
Facts. Colton Allen King was adjudicated delinquent in Pennsylvania as a teenager. The Pennsylvania court imposed a two-year probation period with conditions including that he could not hunt without prior approval of the court’s probation department. By statute, this meant he could not possess a firearm in Virginia. A few years later, however, before his Virginia firearm rights had been restored, King was caught with a firearm in Virginia.
At trial, King asserted the Miller defense. In Miller v. Commonwealth, 25 Va. App. 727 (1997), the Court of Appeals established a due process defense for an individual “who takes measures to learn what conduct the government has proscribed, but is misadvised by the government itself.” King testified that his Pennsylvania probation officer told him that he could possess guns, he just could not use them until his probation ended, and he relied on this advice. The trial court found him guilty, and King appealed.
Issue. Whether the Miller defense was available to King.
Holding. No.
Notes. Invoking the Miller defense requires two steps. First, “the defendant must establish, as a threshold matter, the legal sufficiency of the content and source of the information received.” Sufficiency of content means that the defendant received an “affirmative assurance” that the conduct was lawful. Sufficiency of source means that the information must have been received from a “public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue.” Second, the trial court must make a factual determination as to whether the defendant relied on the information in good faith.
Here, King failed to satisfy both steps. His probation officer did not tell him that he could possess firearms in Virginia—only Pennsylvania, the probation officer was not charged with the responsibility of defining permissible conduct in Virginia, and it was unreasonable for King to assume that advice regarding gun possession in Pennsylvania would apply to Virginia.
King also asked that the Court of Appeals expand Miller’s holding to his situation if it found that the defense did not otherwise apply to him. Citing the interpanel accord doctrine, the Court declined because a panel decision cannot be overruled unless the Court is sitting en banc.