Eddie Lee Gills v. Commonwealth of Virginia ( 2000 )


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  •                    COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Coleman and Lemons ∗
    Argued at Richmond, Virginia
    EDDIE LEE GILLS
    MEMORANDUM OPINION ∗∗ BY
    v.   Record No. 0584-99-2               JUDGE SAM W. COLEMAN III
    JULY 5, 2000
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
    Robert G. O'Hara, Jr., Judge
    Steven D. Benjamin (Betty Layne DesPortes;
    Benjamin & DesPortes, P.C., on briefs), for
    appellant.
    Amy L. Marshall, Assistant Attorney General
    (Mark L. Earley, Attorney General, on brief),
    for appellee.
    Eddie Lee Gills was convicted following a bench trial of
    feloniously driving after having been declared an habitual
    offender, a second or subsequent offense, in violation of Code
    § 46.2-357.   On appeal, Gills argues that the trial court erred
    by admitting the certified copy of a district court warrant,
    with certain dispositional notations thereon, as evidence of a
    prior habitual offender violation.   He contends that the
    ∗
    Justice Lemons participated in the hearing and decision of
    this case prior to his investiture as a Justice of the Supreme
    Court of Virginia.
    ∗∗
    Pursuant to Code § 17.1-413, recodifying Code
    § 17-116.010, this opinion is not designated for publication.
    notations on the warrant are insufficient to support the
    conviction because they do not prove a prior conviction of
    driving after having been declared an habitual offender.    We
    agree that the notations on the warrant are insufficient to
    prove a prior conviction of driving after having been declared
    an habitual offender.    Accordingly, we reverse the habitual
    offender conviction as a second or subsequent offense and remand
    the case to the trial court for sentencing as a first offense
    under Code § 46.2-357.
    BACKGROUND
    On review of a challenge to the sufficiency of the
    evidence, we view the evidence in the light most favorable to
    the Commonwealth, the prevailing party, and grant to it all
    reasonable inferences fairly deducible therefrom.    See
    Commonwealth v. Jenkins, 
    225 Va. 516
    , 521, 
    499 S.E.2d 263
    , 265
    (1998).   On October 18, 1997, Gills was arrested and charged
    with feloniously driving after having been declared an habitual
    offender, a second or subsequent offense.   At trial, the
    Commonwealth introduced a certified copy of an order of the
    Circuit Court for Stafford County to prove that Gills had been
    declared an habitual offender.   The Commonwealth also proffered
    a certified copy of a warrant from a district court proceeding
    as evidence that Gills had previously been convicted of driving
    after being declared an habitual offender in violation of Code
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    § 46.2-357(B)(1). 1   Gills, relying on the holding in McBride v.
    Commonwealth, 
    24 Va. App. 30
    , 34-35, 
    480 S.E.2d 126
    , 128 (1997),
    objected to the introduction of the warrant.     He argued that the
    warrant failed to indicate the offense of which he was
    convicted; thus, it failed to prove that he had been convicted
    of driving after having been declared an habitual offender in
    violation of Code § 46.2-357(B)(1).      The trial court admitted
    the evidence, finding that McBride was factually distinguishable
    from the instant case.    The Commonwealth offered no other
    evidence to prove the prior conviction.
    ANALYSIS
    Gills argues that the trial court erred by admitting the
    warrant as evidence of his prior conviction because the warrant
    1
    The relevant portion of the warrant, which charged Gills
    with driving in Stafford County on February 14, 1997, after
    having been declared an habitual offender, also showed the
    following:
    The Accused Pleaded:
    ____ not guilty
    ____ nolo contendere
    X guilty
    And was TRIED and FOUND by me:
    ____ not guilty
    ____ guilty as charged
    ____ guilty of _____________
    The warrant also contained notations that Gills was present and
    represented by counsel and that the judge imposed a $300 fine
    and a ninety day jail sentence with sixty days suspended for
    three years conditioned upon good behavior and keeping the
    peace.
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    was irrelevant, incompetent, and insufficient to prove the prior
    violation, an element which the Commonwealth was required to
    prove under the statute.    Gills argues that, although the
    notation on the warrant indicates that Gills pled guilty and was
    sentenced, the warrant fails to indicate that Gills was found
    guilty of the charged offense.
    Despite the Commonwealth's assertion that Gills failed to
    challenge the sufficiency of the evidence below, we find that
    Gills preserved the issue for appeal.     See Rule 5A:18; see also
    Mounce v. Commonwealth, 
    4 Va. App. 433
    , 434, 
    357 S.E.2d 742
    , 743
    (1987).   As a basis for objecting to the admissibility of the
    warrant for the prior offense, Gills expressly relied on the
    holding in McBride.     Gills discussed the holding in McBride and
    its applicability to this case.    He argued that based on the
    warrant, "there's no indication that he was convicted of having
    been declared a habitual offender, a misdemeanor, which is a
    prerequisite and a necessary element of the charge that he is
    now facing in court."    Although the trial court factually
    distinguished McBride and overruled the objection, the trial
    court was fully aware of the nature of Gills' objection and was
    aware that Gills was challenging the sufficiency of the
    evidence.   Thus, the issue was preserved for appeal.
    "As with all elements of a crime, the burden is on the
    Commonwealth to prove the prior conviction beyond a reasonable
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    doubt."   McBride, 
    24 Va. App. at 33
    , 
    480 S.E.2d at 123
    .   "The most
    efficient way to prove the prior . . . conviction is to offer in
    evidence an authenticated copy of the prior conviction."   Essex v.
    Commonwealth, 
    18 Va. App. 168
    , 171, 
    442 S.E.2d 707
    , 709 (1994).
    Here, Gills was charged with the felony of driving after
    having been declared an habitual offender, a second or subsequent
    offense, in violation of Code § 46.2-357.   An element of the crime
    which the Commonwealth had to prove was a previous conviction for
    driving after having been declared an habitual offender.
    "Evidence which 'tends to cast any light upon the subject of the
    inquiry' is relevant" and admissible, unless excluded by some
    other principle or rule of law or by statute.   Cash v.
    Commonwealth, 
    5 Va. App. 506
    , 510, 
    364 S.E.2d 769
    , 771 (1988); see
    also Crews v. Commonwealth, 
    18 Va. App. 115
    , 118, 
    442 S.E.2d 407
    ,
    409 (1994) (finding that the admissibility of evidence is reviewed
    for an abuse of discretion); Evans-Smith v. Commonwealth, 
    5 Va. App. 188
    , 196, 
    361 S.E.2d 436
    , 441 (1987) (stating that the
    general rule for the admissibility of evidence is that it be
    relevant and material).   Therefore, under the general rule, a
    warrant that shows that the defendant has been previously charged
    and convicted of driving after having been declared an habitual
    offender is relevant and admissible.   Although the warrant was
    admissible, Gills contends the warrant and the notation thereon
    were insufficient to establish the prior conviction.   Gills argues
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    that the warrant merely shows that he was charged with a violation
    of Code § 46.2-357 and that he pled guilty and was sentenced.
    Thus, he contends it does not prove that the court found him
    guilty of the charged offense as opposed to a lesser or
    lesser-included offense.   The Commonwealth, citing Savino v.
    Commonwealth, 
    239 Va. 534
    , 539, 391 S.E.3d 276, 278 (1990), argues
    that a plea of guilty is a self-executing conviction and that the
    presumption of regularity justified the trial court's conclusion
    that Gills pled guilty to the charged offense.
    We find that this case is controlled by our holding in
    McBride.   In McBride, the defendant was convicted of a second
    offense of driving under the influence.   At trial, the
    Commonwealth introduced a certified copy of an arrest warrant,
    indicating that the defendant was charged with previously
    violating Code § 18.2-266.   The warrant contained a printed form
    upon which the district court had reported the proceedings.     The
    form indicated that the defendant was charged, pled not guilty,
    and was sentenced.   However, the form was blank in the space where
    the court is to designate whether the defendant was tried and
    found guilty of the charged offense.   The Commonwealth offered no
    other evidence to prove a prior conviction.   The defendant moved
    to strike the evidence, arguing that the evidence did not prove
    that he had been previously convicted of violating Code
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    § 18.2-266.   The trial court denied the motion and found the
    defendant guilty of the second offense.
    We reversed McBride's conviction, finding that the evidence
    was insufficient to prove that he had been previously convicted of
    violating Code § 18.2-266.   We found that the warrant from the
    previous proceeding failed to prove that the defendant was
    convicted of the charged offense, rather than some other offense
    or a lesser-included offense.    Moreover, we declined to infer or
    speculate the nature of the actual judgment of conviction based on
    the sentence imposed by the trial court.
    "It is the firmly established law of this Commonwealth that a
    trial court speaks only through its written orders."      Davis v.
    Mullins, 
    251 Va. 141
    , 148, 
    466 S.E.2d 90
    , 94 (1996) (citation
    omitted).   Here, the warrant proffered by the Commonwealth
    indicated only that Gills was charged with violating Code
    § 46.2-357(B)(1), that he pled guilty at that proceeding, and that
    he was sentenced.   The warrant contained no notation indicating of
    what offense Gills was convicted.       Often charges are amended or a
    defendant is permitted to plead guilty to a reduced charge other
    than the charged offense.    So that district court judges will not
    have to prepare dispositional orders for each case, the Supreme
    Court provides pre-printed forms on the warrants which contain
    blocks or blanks that enable judges to specify, by merely checking
    the section or filling in a blank, the disposition of a case, the
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    offense of which the accused is found guilty, and the amount of a
    fine and/or jail sentence.    Moreover "every act of a court of
    competent jurisdiction shall be presumed to have been rightly
    done, till the contrary appears."      Nicely v. Commonwealth, 
    25 Va. App. 579
    , 584, 
    490 S.E.2d 281
    , 283 (1997) (internal quotation and
    citation omitted).   But, we apply a presumption of regularity
    where a proceeding appears in all respects regular on its face and
    some procedural issue is being challenged, such as whether a
    defendant was represented by counsel in a prior conviction.     The
    presumption does not apply where the proceeding is irregular on
    its face, in that it fails to specify the offense for which a
    defendant was convicted.   In the absence of a notation or
    specification on the warrant stating the offense of which Gills
    was convicted, we will not presume or surmise as to the offense of
    which Gills was convicted.
    Accordingly, we hold that the warrant was insufficient to
    prove the prior conviction.    We, therefore, reverse Gills'
    conviction and remand the case to the trial court for
    resentencing.
    Reversed and remanded.
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