Susan D. Fitzpatrick v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
SUSAN D. FITZPATRICK
MEMORANDUM OPINION * BY
v. Record No. 0361-99-2 JUDGE RICHARD S. BRAY
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
William B. Bray (Perry & Bray, on brief), for
appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Susan Fitzpatrick (defendant) was convicted in a bench trial
for operating a motor vehicle after having been determined an
habitual offender. On appeal, she challenges the sufficiency of
the evidence to prove she had been properly declared an habitual
offender. Finding no error, we disagree and affirm the
conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. In accordance with well established
principles, we view the evidence in the light most favorable to
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
the Commonwealth. See Archer v. Commonwealth, 26 Va. App. 1, 11,
492 S.E.2d 826, 831 (1997).
I.
On October 22, 1998, Chesterfield Police Officer William
Calliott "pulled" defendant for a traffic infraction. A related
inquiry through "dispatch" into "the status of her license"
disclosed that defendant had been declared an habitual offender.
When Calliott asked "if she knew she was a habitual offender,"
defendant responded, "no," but "thought she was suspended for ASAP
reasons."
At trial, the Commonwealth introduced a photocopy of a
"Suspension/Revocation Qualification Notice," issued and certified
by the Department of Motor Vehicles (DMV) and addressed to
defendant. In pertinent part, the notice advised:
You are hereby personally notified that your
driver's license/privilege has been revoked
as a result of the Department of Motor
Vehicles determination that you are a
habitual offender. You may not operate a
motor vehicle in the Commonwealth of
Virginia until you have complied with the
requirements of the previously issued
Habitual Offender Order.
The notice, dated Saturday, April 19, 1997, at 4:23 a.m., and
issued in Chesterfield County, Virginia, declared that "A true
copy of this NOTICE was personally delivered to the above-named
driver on the date and at the time and place indicated," was
signed by defendant, "Acknowledg[ing] Receipt," and a named law
enforcement officer.
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Defendant introduced into evidence a certified copy of her
DMV "TRANSCRIPT OF DRIVER HISTORY RECORD AS OF 01/14/99." The
transcript, also certified by the DMV, recited, inter alia:
DRIVER LICENSE STATUS: REVOKED HABITUAL
OFFENDER
* * * * * * *
DETERMINED ON: 02/22/97 HABITUAL OFFENDER
BY DMV
ELIGIBLE TO RESTORE UNDER CURRENT LAW
ON:
RESTRICTED: 02/22/00 FULL: 02/22/02
REVOCATION ISS: 02/25/97 EFFECTIVE: 03/27/97
FOR HO DETERMINATION PROCESS
NOTIFIED: 04/19/97 BY LAW ENFORCEMENT
ORDER DELIVERY DATE: ORDER MAILED
The order of the DMV declaring defendant an habitual
offender was not in evidence, and a memorandum from the DMV
reported, "We are unable to locate" the order. Defendant,
therefore, first maintains that the Commonwealth failed to prove
"if there really was an order."
II.
To convict defendant of the instant offense, the
Commonwealth's evidence must establish beyond a reasonable doubt
that she was "driving a motor vehicle" while the habitual
offender "revocation determination [was] in effect," Code
§ 46.2-357(B), with "actual notice" of such status. Reed v.
Commonwealth, 15 Va. App. 467, 472, 424 S.E.2d 718, 720 (1992).
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Here, a DMV transcript reported that she was "REVOKED
HABITUAL OFFENDER BY DMV," as a result of a DMV determination on
February 22, 1997, effective March 27, 1997. The transcript
further recited that defendant was eligible for restoration of
"[f]ull" privileges on February 22, 2002, a date consistent with
the revocation provisions of Code §§ 46.2-358 to –361.
Moreover, defendant's habitual offender status on the day of the
offense was confirmed, without objection, by information
received by Calliott through dispatch.
Additionally, the "Qualification Notice," executed by
defendant on April 19, 1997, specifically advised that her
"license/privilege has been revoked as a result of the [DMV]
determination that [she was] a habitual offender." The notice
further directed that defendant "not operate a motor vehicle" in
the Commonwealth, absent compliance "with requirements of the
previously issued Habitual Offender Order."
Under such circumstances, defendant's contention that the
Commonwealth's evidence did not sufficiently establish her
status as an habitual offender is without merit. Contrary to
her assertion, proof of the requisite determination is not
limited to the actual order. Certified records of the DMV,
corroborated by Calliott's testimony, all before the court
without objection, clearly established the determination by the
DMV that defendant was an habitual offender, with notice of such
status and the attendant applications, at the time of the
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subject offense. See Ingram v. Commonwealth, 1 Va. App. 335,
338-40, 338 S.E.2d 657, 658-60 (1986).
"Where a habitual offender adjudication rests upon valid
subject matter and personal jurisdiction and is not appealed,
that adjudication becomes final and neither the adjudication nor
the underlying convictions can be collaterally attacked."
Commonwealth v. Brown, 28 Va. App. 781, 790, 508 S.E.2d 916, 921
(1999) (citing Eagleston v. Commonwealth, 18 Va. App. 469,
471-72, 445 S.E.2d 161, 163 (1994)). Defendant does not
challenge the jurisdiction of the DMV to declare her an habitual
offender, and the record does not disclose that she petitioned
the appropriate circuit court for a review of such
determination, "after . . . learning of the revocation,"
pursuant to Code § 46.2-352(B). Thus, defendant's further
argument that such determination was "either ineffective or
void" because the Commonwealth failed to prove that the DMV
notified defendant "of the revocation . . . by certified mail,"
pursuant to Code § 46.2-352(A), constitutes an impermissible
collateral attack on the predicate order.
Accordingly, we find the conviction sufficiently supported
by the evidence and affirm the trial court.
Affirmed.
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