Kenneth McCoy Bond v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
KENNETH McCOY BOND
MEMORANDUM OPINION * BY
v. Record No. 3454-01-1 JUDGE WALTER S. FELTON, JR.
APRIL 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Randolph D. Stowe for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Margaret W. Reed, Assistant Attorney General,
on brief), for appellee.
Kenneth Bond was convicted in a bench trial of driving after
having been declared an habitual offender, in violation of Code
§ 46.2-357. On appeal, Bond contends that the evidence was
insufficient to support his conviction because there was no
evidence that he had received notice that he had been declared an
habitual offender. For the following reasons, we affirm the
judgment of the trial court.
I. BACKGROUND
On January 11, 2000, Officer T.W. Kullman, Jr. stopped
Kenneth Bond for driving a vehicle with an improperly covered
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
license plate. When asked for his driver's license, Bond pulled
out a card, but would not hand it to Officer Kullman. He held
the card in a manner where his thumb covered the areas that said
"identification card." Bond handed the card to Officer Kullman
after his third request.
The name on the identification card indicated "Robert
Bond," and Officer Kullman issued a summons in the name of
Robert Bond for driving on a suspended license. Bond signed the
summons as "Robert Bond." 1
At trial, the Commonwealth introduced Kenneth Bond's
Department of Motor Vehicles ("DMV") driving record. The
driving record reflected the following:
February 15, 1995: Adjudicated as an
habitual offender. Suspension of license
issued on February 28 for habitual offender.
Notified by mail.
March 28, 1995: Charged with operating a
motor vehicle after having been declared an
habitual offender. Convicted on June 30,
1995.
April 26, 1995: Driving privileges restored
by court order.
June 4, 1995: Charged with operating a
motor vehicle after having been declared an
habitual offender. Convicted on July 11,
1995.
July 12, 1997: Charged with operating a
motor vehicle after having been declared an
habitual offender, in violation of Code
1
Prior to trial, it was determined that Kenneth Bond had
falsely presented himself and falsely signed the summons as
"Robert Bond."
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§ 46.2-357. On June 16, 1998, Bond pleads
guilty to that charge.
October 2, 1997: Determined an habitual
offender by DMV. License revoked on October
6, 1997. Order sent to Bond, but not
accepted.
January 11, 2000: Bond charged with
operating a motor vehicle after having been
declared an habitual offender. Convicted on
October 23, 2001.
Bond moved to strike the habitual offender charge, arguing
the June 1998 conviction was based on an offense date when he
was not declared an habitual offender. According to Bond, DMV
records indicate that it did not send him notice of his habitual
offender status until October 6, 1997, three months after he was
charged. The trial court denied the motion, finding "the
defendant was aware and had effectively received notice when he
entered his plea of guilty in the Norfolk Circuit Court," on
June 16, 1998. Although Bond testified and claimed he had no
memory of pleading guilty to the habitual offender charge in
1998, he corrected the prosecutor on how much time he served for
the conviction. The trial court concluded Bond's testimony was
"incredible" and denied the renewed motion to strike.
II. ANALYSIS
Bond contends on appeal that the evidence was insufficient
to convict him of driving after having been declared an habitual
offender because there was no evidence that he was put on notice
as to his status as an habitual offender. We disagree.
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When the sufficiency of the evidence is
challenged on appeal, it is well established
that we must view the evidence in the light
most favorable to the Commonwealth, granting
to it all reasonable inferences fairly
deducible therefrom. The conviction will be
disturbed only if plainly wrong or without
evidence to support it.
Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196
(1992).
In order to convict Bond of being an habitual offender, the
Commonwealth is required to prove that he "knew at the time he
operated a motor vehicle . . . that he was doing so after he had
been declared an habitual offender and ordered not to drive."
Reed v. Commonwealth, 15 Va. App. 467, 468, 424 S.E.2d, 718, 718
(1992). Bond argues that when he was stopped on January 11,
2000, he was unaware that he had previously been declared an
habitual offender. As support, he indicates that in October
1997, he did not receive notice from the Department of Motor
Vehicles regarding his habitual offender status. He claims that
on July 12, 1997, he was not in habitual offender status.
Furthermore, that he pled guilty, on the advice of counsel, to
an habitual offender offense even though he was innocent, his
guilty plea in no way shows he had knowledge of his status.
Bond's reliance on that argument is misplaced.
"[A] voluntary and intelligent plea of
guilty by an accused is, in reality, a
self-supplied conviction authorizing
imposition of the punishment fixed by law."
Dowell v. Commonwealth, 12 Va. App. 1145,
1148, 408 S.E.2d 263, 265 (1991) (citations
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omitted), aff'd on rehearing en banc, 14
Va. App. 58, 414 S.E.2d 440 (1992). . . . A
guilty plea "is an admission . . . of a
solemn character. . . . [I]t is competent
evidence against him. . . . [I]t is evidence
of each and every element needed to
constitute the offense admitted as a crime."
Bannister v. Mitchell, 127 Va. 578, 583, 104
S.E. 800, 801 (1920).
Rose v. Commonwealth, 37 Va. App. 728, 735-36, 561 S.E.2d 46, 50
(2002). On June 16, 1998, Bond entered a plea of guilty to
misdemeanor habitual offender. When he entered that plea, he
was present in court and was represented by counsel. His
physical presence in the court during his trial provided Bond
with actual notice of his habitual offender status. By pleading
guilty to the misdemeanor habitual offender charge, Bond
admitted to each and every element of the offense and
acknowledged his habitual offender status. 2
There is no dispute that Bond was driving on January 11,
2000. At that time he knew of his habitual offender status, yet
he was driving despite his status and despite having his driving
privileges revoked. When Bond was stopped, he attempted to
conceal his identity by providing false identification and
forging the summons. Based on this evidence, we find that the
trial court could have reasonably concluded that Bond was aware
of his habitual offender status and was attempting to conceal
2
Pursuant to Code § 46.2-356, a person found to be an
habitual offender may not have a Virginia driver's license
issued to him until the court enters an order restoring his
driving privileges.
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his identity and avoid prosecution. The evidence was sufficient
beyond a reasonable doubt to support a conviction for the
offense charged.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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