Donald Edward Cherry v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
DONALD EDWARD CHERRY
v. Record No. 2306-94-1 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
COMMONWEALTH OF VIRGINIA JANUARY 30, 1996
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
Rodham T. Delk, Judge
Byron W. Waters for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Donald Cherry appeals his conviction for third offense petit
larceny in violation of Code § 19.2-297. Cherry contends that
the introduction of one conviction order for a prior third
offense petit larceny charge does not satisfy the Commonwealth's
burden to prove that Cherry had been sentenced twice previously
for larceny offenses. We disagree, and we affirm the conviction.
Donald Cherry was seen taking a bag of soap from a drugstore
without paying for it. He was later arrested and charged with
third offense petit larceny. At trial, the Commonwealth
introduced only one certified copy of a prior third offense petit
larceny. The Defendant moved to strike based on only one
conviction order having been introduced. In overruling the
motion, the trial judge stated:
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
The order states that Mr. Cherry stands indicted
for a felony, and then the indictment is repeated by
its terms in the order including these words. The said
Donald E. Cherry having been sentenced for at least two
larceny offenses or offenses deemed to be larceny prior
to this charge. That's on page 1 of the order.
Page 2 of the order states that upon stipulation
of the facts, the Court finds the accused guilty of
third offense petit larceny as charged in the
indictment.
As an element of the charged offense, the Commonwealth had
the burden to prove beyond a reasonable doubt that Cherry had
been sentenced twice previously for larceny or offenses deemed
larceny. The Commonwealth satisfied that burden through the
introduction of the prior conviction order.
The defendant concedes that the order was properly admitted.
The defendant further concedes that the order was admissible for
the purpose of proving that Cherry had been sentenced previously
for third offense petit larceny. At this previous trial, Cherry
was represented by counsel and pled guilty to the charge.
The conviction order in the instant case enjoys a
presumption of regularity. James v. Commonwealth, 18 Va. App.
746, 752, 446 S.E.2d 900, 904 (1994). To rebut this presumption,
the defendant must present some evidence of constitutional
infirmity. Id. No evidence exists in the record to support such
a claim.
The conviction order, having been properly admitted and
constitutionally sound, supplies the evidence necessary to prove
beyond a reasonable doubt that Cherry had been sentenced twice
previously for larceny or offenses deemed larceny.
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Affirmed.
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