Paulus Thendoll Owens v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
PAULUS THENDOLL OWENS
MEMORANDUM OPINION * BY
v. Record No. 1060-98-2 JUDGE RICHARD S. BRAY
MAY 4, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
William T. Linka (Boatwright & Linka, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Paulus Thendoll Owens (defendant) was convicted by the trial
court for operating a motor vehicle after being adjudged an
habitual offender, a violation of Code § 46.2-357(B). On appeal,
defendant challenges the sufficiency of the evidence to prove
actual notice of the adjudication. We disagree and affirm his
conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
“On appeal, ‘we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
The credibility of the witnesses, the weight accorded testimony,
and the inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment of the
trial court will not be set aside unless plainly wrong or without
support in the evidence. See Code § 8.01-680.
On October 1, 1997, State Trooper J.L. Bradford observed
defendant speeding and “pulled [him] over.” When Bradford
inquired “about his license,” defendant initially acknowledged
“that he doesn’t [sic] have his license,” but denied that his
privileges were “suspended.” Defendant then “changed his mind”
and confessed that he “was suspended,” adding that he “didn’t know
he was a habitual offender.” Following further investigation by
Bradford, defendant was arrested for driving while intoxicated and
after having been declared an habitual offender, the instant
offense.
At trial, the Commonwealth introduced a certified DMV
“Transcript of [defendant’s] Driver History,” which reflected an
habitual offender adjudication by the Richmond General District
Court on September 3, 1996, together with the attendant show cause
and final orders. The adjudication order recited that defendant
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had failed to appear at the hearing, despite personal service of
the show cause order on May 2, 1996. The documentary evidence
further established that an “appeal [was] noted” of the order, but
“not perfected,” and a “copy [of the order had been] mailed to
[defendant]” on October 3, 1996. Nevertheless, relying upon Reed
v. Commonwealth, 15 Va. App. 467, 424 S.E.2d 718 (1992), defendant
contends that such evidence failed to establish actual notice of
the adjudication, a proof indispensable to the instant conviction.
Code § 46.2-357(B) punishes “any person found to be an
habitual offender . . ., who is thereafter convicted of driving a
motor vehicle . . . while the revocation determination is in
effect.” However, “Code § 46.2-355 . . . requires that the person
receive actual notice of having been declared an habitual offender
and directed not to drive before he can be convicted and
imprisoned for driving after having been declared an habitual
offender.” Reed, 15 Va. App. at 471, 424 S.E.2d at 720-21. Thus,
the Commonwealth must prove actual notice of an habitual offender
adjudication to support a conviction for violation of Code
§ 46.2-357. See id. at 471-72, 424 S.E.2d at 720-21.
Here, the record clearly reflects that an appeal was noted
from the adjudication order. “An appeal [from a general district
court judgment] may be noted by a party or by the attorney for
such party.” Rule 7A:13; see also Code § 16.1-106. “In the
absence of clear evidence to the contrary, courts may presume that
public officers have properly discharged their official duties.”
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Robertson v. Commonwealth, 12 Va. App. 854, 856-57, 406 S.E.2d
417, 418 (1991) (citations omitted). “The attorney-client
relationship presumes that attorney and client, as servant and
master, will communicate about all the important stages of the
client’s . . . trial.” Hunter v. Commonwealth, 15 Va. App. 717,
722, 427 S.E.2d 197, 201 (1993); see also Code § 8.01-314. Guided
by these principles, the record establishes that an appeal of the
order was properly noted by defendant or his attorney in
compliance with the Rules of Court, a circumstance sufficient to
prove that defendant was actually cognizant of its import,
directly or through counsel.
Accordingly, we affirm the conviction.
Affirmed.
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