William Harrison Parker, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
WILLIAM HARRISON PARKER, S/K/A
WILLIAM HARRISON PARKER, JR.
v. Record No. 1481-94-4 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA OCTOBER 17, 1995
FROM THE CIRCUIT COURT OF WARREN COUNTY
Dennis L. Hupp, Judge
Thomas D. Logie for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
William Harrison Parker, Jr. appeals his conviction of
driving after being declared an habitual offender, in violation
of Code § 46.2-357. Parker contends that one of his previous
convictions that served as a predicate offense for the habitual
offender declaration was void. We disagree and affirm Parker's
conviction because he may not collaterally attack his habitual
offender adjudication in his trial for driving after having been
declared an habitual offender. Morse v. Commonwealth, 6 Va. App.
466, 369 S.E.2d 863 (1988).
Appellant maintains that even under Morse, he may attack one
of the predicate convictions relied upon at the habitual offender
proceeding because the constitutional defect rendered the
judgment void at the inception of the trial.
That predicate offense was a misdemeanor conviction for
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
driving with a suspended license. Under former Code § 46.1-350,
incarceration was mandatory for this offense. Parker did not
appear at the trial, and as authorized by Code §§ 19.2-258 and
19.2-258.1, he was tried in absentia and convicted. As he did
not appear at the trial, no counsel was appointed as would
otherwise be required under Code § 19.2-157. Although the
statute required a jail sentence, the court imposed only a small
fine.
Parker argues first that the uncounseled misdemeanor
conviction was not a valid predicate offense for the habitual
offender declaration. On the contrary, it is well established
that an uncounseled misdemeanor conviction is not invalid per se
and may serve as a valid predicate offense in habitual offender
proceedings. McClure v. Commonwealth, 222 Va. 690, 694, 283
S.E.2d 224, 226 (1981). Also, the United States Supreme Court
recently held that a sentencing court may consider a defendant's
previous uncounseled misdemeanor convictions valid under Scott v.
Illinois, 440 U.S. 367 (1979)--i.e. uncounseled convictions where
no jail sentence was imposed--for purposes of enhancing
punishment. Nichols v. United States, U.S. , 114 S. Ct.
1921, 1927-28 (1994). See also Griswold v. Commonwealth, Va.
App. , , S.E.2d , (1995) (en banc) (uncounseled
misdemeanor conviction was properly considered at both guilt and
sentencing phases of the trial, even where a jail sentence was
imposed.)
Parker further argues that because no counsel was appointed
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for him, the conviction on the predicate offense is void.
However, the right to counsel in misdemeanor cases does not
extend so far. In Nichols v. United States, the Supreme Court
upheld its view, first espoused in Scott v. Illinois, that "so
long as no imprisonment was actually imposed, the Sixth Amendment
right to counsel did not obtain." Nichols at , 114 S. Ct. at
1927. The conviction is not void for failure to appoint counsel.
Finally, Parker argues that because the court imposed a
sentence of less than the statutory minimum for the predicate
offense, that conviction is void. However, a sentence below the
minimum prescribed by law is not void, but merely voidable.
Smith v. Commonwealth, 195 Va. 297, 77 S.E.2d 860 (1953); Royster
v. Smith, 195 Va. 228, 77 S.E.2d 855 (1953). While a void
judgment can be attacked at any time, a judgment that is merely
voidable may only be attacked within twenty-one days from its
date of entry or, after that period, by seeking appellate review.
Failure to seek correction of a voidable judgment renders it
final and conclusive. Smith, 195 Va. at 300, 77 S.E.2d at 863.
As the defendant failed to seek correction of his sentence on
direct appeal, the sentence is now final and cannot be
collaterally attacked.
Accordingly, even assuming Parker could collaterally attack
his habitual offender adjudication because of a void underlying
conviction, his underlying conviction was not void. Thus, his
collateral attack is not proper.
Affirmed.
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