Buddy Lee Elkins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia
BUDDY LEE ELKINS
OPINION BY
v. Record No. 1642-98-3 CHIEF JUDGE JOHANNA L. FITZPATRICK
AUGUST 17, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
Margaret A. Nelson, Senior Assistant Public
Defender, for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General;
Richard B. Campbell, Assistant Attorney
General, on brief), for appellee.
Buddy Lee Elkins (appellant) was convicted of driving after
having been declared an habitual offender, second offense, in
violation of Code § 46.2-357. Appellant contends the trial
court erred in admitting and relying upon a misdemeanor habitual
offender conviction as a predicate offense because no evidence
proved that he waived his right to counsel or right to a jury at
trial. For the following reasons, we reverse the conviction.
I. BACKGROUND
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
the prevailing party below, granting to it all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
So viewed, the evidence established that on August 11, 1997,
Officer Trent (Trent) of the Lynchburg Police Department
observed appellant driving a blue Ford truck near Bedford Avenue
and Dinwiddie Street. Trent was familiar with appellant and
knew that his driver's license had been previously suspended.
The officer followed the truck and checked the status of
appellant's license. Trent lost sight of appellant for about
twenty seconds, but abruptly came upon him standing in front of
his stopped truck with the hood elevated. Having verified that
appellant's license was suspended, the officer confronted
appellant.
Trent testified as follows:
Q. What did you do?
A. Before I got out of the vehicle, I
confirmed with the dispatchers that he in
fact was still suspended. I exited the
vehicle and walked up to him. . . . I
advised him that I had seen him driving and
that I [had] just gotten his information
that he was suspended.
Q. And what did he say?
A. He said, I know I'm not supposed to
drive. I just went to Court. And then he
said, I wasn't driving the vehicle. The
lady that was with him, he said she was
driving.
(Emphasis added). Trent stated unequivocally that appellant was
the individual he observed driving the truck.
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At trial, the Commonwealth offered into evidence four
exhibits: (1) a certified copy of a court order indicating that
appellant had been adjudicated an habitual offender by the
Campbell County Circuit Court on March 7, 1995; (2) a certified
copy of a misdemeanor conviction showing that appellant had pled
guilty to driving after having been declared an habitual
offender in the Bedford County General District Court on
November 22, 1995; (3) a certified copy of a January 4, 1996
Bedford County Circuit Court order indicating that appellant was
deemed to have withdrawn his appeal of the November 22, 1995
Bedford County General District Court conviction; and (4)
appellant's DMV transcript.
In the Bedford County proceedings, appellant appeared in
the general district court on November 22, 1995, and pled guilty
to driving after having been declared an habitual offender. On
that occasion, appellant signed a form waiving his right to
counsel. Following his conviction in the general district
court, appellant noted his appeal to the circuit court. At the
trial de novo, appellant did not appear and was not represented
by counsel. Rather than trying appellant in his absence, the
trial judge deemed appellant's failure to appear as the
equivalent of a withdrawal of his appeal. The Bedford County
Circuit Court reinstated the judgment of the general district
court sentencing appellant to thirty days in jail and imposing a
$500 fine.
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At trial in the instant case, appellant's counsel objected
to the introduction of Exhibits 2 and 3, arguing that the
documents did not show appellant had been advised of his right
to counsel and right to a jury trial. Additionally, appellant’s
counsel asserted that appellant was in the Campbell County jail
at the time of his January 4, 1996 misdemeanor appeal in the
Bedford County Circuit Court, and, for this reason, was unable
to attend his trial. Appellant testified that he told the
deputies he had a court date, but they failed to assist him.
The trial court overruled appellant's objection, stating: "So
that was a cancelled conviction in the lower Court and he was
advised of his right to counsel and waived it. So, I'm going to
find him guilty of the offense as charged in the indictment."
II. RIGHT TO COUNSEL
Appellant first contends the trial court erred in relying
on his previous habitual offender conviction in Bedford County
as the predicate offense for the instant charge. He argues the
Bedford County Circuit Court erroneously relied on Code
§ 16.1-133 and treated his failure to appear in that case as a
withdrawal of his appeal from the general district court.
Although appellant executed a waiver of counsel form in the
general district court, he argues that he never waived either
his Sixth Amendment right to counsel or his right to a jury
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trial in the de novo circuit court proceedings. 1 Accordingly,
appellant argues that the judgment of the Bedford County Circuit
Court was constitutionally infirm and that the trial court in
the instant case improperly relied on that conviction as the
predicate offense for an enhanced penalty. We agree.
It is well settled that an uncounseled misdemeanor
conviction is not invalid per se and may serve as a valid
predicate offense in habitual offender proceedings. See
Griswold v. Commonwealth, 252 Va. 113, 116-17, 472 S.E.2d 789,
791-92 (1996); McClure v. Commonwealth, 222 Va. 690, 694, 283
S.E.2d 224, 226 (1981); Nicely v. Commonwealth, 25 Va. App. 579,
583, 490 S.E.2d 281, 282-83 (1997). The United States Supreme
Court has held that for the purpose of enhancing punishment, a
sentencing court may consider a defendant's previous uncounseled
conviction where no jail sentence was imposed. See Nichols v.
United States, 511 U.S. 738, 746-49 (1994). In Virginia,
[i]t is now well established that a prior
uncounseled misdemeanor conviction that did
not result in actual incarceration may
constitute proper evidence of recidivism,
although punishment for the enhanced offense
may include jail or imprisonment.
1
As a preliminary matter, the Commonwealth argues Rule
5A:18 bars appellant from arguing on appeal that he was denied
his Sixth Amendment right to counsel and right to a jury trial.
We conclude from the transcript that appellant's counsel
specifically objected to the introduction of Exhibits 2 and 3
because there was no evidence of a waiver of appellant's
constitutional rights and that the trial judge considered and
ruled on the objection. Therefore, Rule 5A:18 does not bar our
review of the merits of this appeal. See Wright v.
Commonwealth, 4 Va. App. 303, 305, 357 S.E.2d 547, 549 (1987).
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Conversely, however, a previous misdemeanor
conviction attended by incarceration is
constitutionally offensive and may support
neither guilt nor enhanced punishment for a
later offense, unless the accused either
waived or was represented by counsel in the
earlier proceeding.
Nicely, 25 Va. App. at 583, 490 S.E.2d at 282-83 (citing
Nichols, 511 U.S. at 746-49; Griswold, 252 Va. at 116-17, 472
S.E.2d at 790-91) (emphasis in original).
On November 22, 1995, appellant appeared in the Bedford
County General District Court and pled guilty to driving after
having been declared an habitual offender. On that occasion,
appellant signed a form entitled "WAIVER OF RIGHT TO BE
REPRESENTED BY A LAWYER (CRIMINAL CASE)." Following his
conviction in the general district court, appellant noted his
appeal to the circuit court. At the trial de novo, appellant
did not appear and was not represented by counsel. The circuit
court noted that the "defendant was called three times but did
not appear either in person or by counsel and the record
reflects that the defendant had notice of this date and time for
trial." 2 Therefore, the circuit court concluded: "By his
2
We do not address appellant's contention that his failure
to appear in the Bedford County Circuit Court was because he was
incarcerated at the time. This argument raises no
constitutional questions and constitutes a collateral attack not
subject to review. See James v. Commonwealth, 18 Va. App. 746,
750-51, 446 S.E.2d 900, 903 (1994) (holding that a judgment in a
criminal case may not be collaterally attacked in another
criminal proceeding and that the "presumption of regularity"
applies even when a collateral attack rests on constitutional
grounds).
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failure to appear to go forward with the appeal upon motion of
the Attorney for the Commonwealth, the defendant is deemed to
have withdrawn his appeal . . . ." (Emphasis added). The
circuit court reinstated the lower court's sentence. It is in
this procedural posture that we review whether the Commonwealth
established that appellant knowingly and intelligently waived
his constitutional right to counsel and whether the Bedford
conviction was valid.
The Bedford County Circuit Court "deemed" appellant's
failure to appear as the functional equivalent of a "withdrawal
of appeal" under Code § 16.1-133. That section provides:
[A]ny person convicted in a general district
court, a juvenile and domestic relations
district court, or a court of limited
jurisdiction of an offense not felonious
may, at any time before the appeal is heard,
withdraw an appeal which has been noted, pay
the fine and costs to such court, and serve
any sentence which has been imposed.
A person withdrawing an appeal shall
give written notice of withdrawal to the
court and counsel for the prosecution prior
to the hearing date of the appeal. If the
appeal is withdrawn more than ten days after
conviction, the circuit court shall
forthwith enter an order affirming the
judgment of the lower court and the clerk
shall tax the costs as provided by statute.
Fines and costs shall be collected by the
circuit court, and all papers shall be
retained in the circuit court clerk's
office.
Where the withdrawal is within ten days
after conviction, no additional costs shall
be charged, and the judgment of the lower
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court shall be imposed without further
action of the circuit court.
Code § 16.1-133 (emphasis added).
"'Where a statute is unambiguous, the plain meaning is to
be accepted without resort to the rules of statutory
interpretation.'" Sykes v. Commonwealth, 27 Va. App. 77, 80,
497 S.E.2d 511, 512 (1998) (quoting Last v. Virginia State Bd.
of Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992)).
"'"Courts are not permitted to rewrite statutes. This is a
legislative function. The manifest intention of the
legislature, clearly disclosed by its language, must be
applied."'" Id. at 80-81, 497 S.E.2d at 512-13 (quoting Barr v.
Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560,
566, 29 S.E.2d 838, 841 (1944))).
Code § 16.1-133 is clear. It provides that only the
accused has the right to withdraw his or her appeal to the
circuit court. If the written notice of withdrawal is filed
within ten days after conviction in the general district court,
no additional costs or fines may be assessed, and the judgment
of the lower court is imposed. If the appeal is withdrawn more
than ten days after conviction, the circuit court may assess
additional costs. However, nothing in the Code or case law
allows the circuit court, upon its own motion, to withdraw a de
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novo appeal to the circuit court and reinstate the judgment of
the general district court.
Under the circumstances presented in this appeal, the
Bedford County Circuit Court was required to proceed under Code
§ 19.2-258, which provides that when the accused fails to appear
in the circuit court on a misdemeanor charge, the accused may be
tried in his or her absence. Code § 19.2-258 provides, in
relevant part:
When a person charged with a
misdemeanor has been admitted to bail or
released upon his own recognizance for his
appearance before a court of record having
jurisdiction of the case, for a hearing
thereon and fails to appear in accordance
with the condition of his bail or
recognizance, he shall be deemed to have
waived trial by a jury and the case may be
heard in his absence as upon a plea of not
guilty.
Code § 19.2-258 (emphasis added).
The evidence established that appellant failed to appear in
the circuit court. However, the evidence failed to prove that
he withdrew his de novo appeal. After the case had been
appealed and was before the circuit court for a de novo hearing,
the court had no authority to reinstate the judgment of the
general district court. Under these facts, the Bedford County
Circuit Court could have tried appellant in his absence and, if
the evidence was sufficient, convicted him of driving after
having been declared an habitual offender. However, without
appointing counsel, the circuit court could not have sentenced
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appellant to a term of imprisonment. See Griswold, 252 Va. at
117, 472 S.E.2d at 791 ("[W]e think the Supreme Court made it
plain, if it had not done so already, that there is no
constitutional right to counsel in a misdemeanor case unless the
conviction results in 'actual imprisonment.'" (emphasis added));
cf. Nichols, 511 U.S. at 743 (noting that "where no sentence of
imprisonment was imposed, a defendant charged with a misdemeanor
had no constitutional right to counsel").
The Virginia Supreme Court has held that the burden is on
the Commonwealth "to prove the essentials of a waiver of the
right to counsel by clear, precise and unequivocal evidence."
Lemke v. Commonwealth, 218 Va. 870, 873, 241 S.E.2d 789, 791
(1978). The United States Supreme Court has held that
"[p]resuming waiver from a silent record is impermissible. The
record must show, or there must be an allegation and evidence
which show, that an accused was offered counsel but
intelligently and understandingly rejected the offer. Anything
less is not waiver." Carnley v. Cochran, 369 U.S. 506, 516
(1962) (emphasis added); see also Johnson v. Zerbst, 304 U.S.
458, 464 (1938) (holding that there is a presumption against a
defendant's waiver of any constitutional rights).
Here, the Bedford County Circuit Court "reinstated" an
order of conviction without any authority for doing so and
imposed a period of incarceration without the defendant having
been represented by counsel or having waived his right to
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counsel in the de novo appeal. Because the Bedford County
conviction was entered without authority and without the
representation or waiver of counsel, the conviction is void and
cannot be relied upon as a predicate offense.
In the instant case, the trial court relied upon a void
conviction to prove the predicate first offense. We conclude
that because appellant's misdemeanor conviction was uncounseled,
which resulted in a thirty-day jail sentence, and the conviction
was reinstated without authority for doing so, it was improperly
used as the predicate offense. Accordingly, we reverse
appellant's conviction and remand for further proceedings if the
Commonwealth be so advised. 3
Reversed and remanded.
3
Because we reverse appellant's conviction for the failure
to prove a valid waiver of counsel, we do not address his
additional contention that he was also denied his right to a
jury trial. But see Code § 19.2-258 (When a defendant fails to
appear in the circuit court on a misdemeanor charge, "he shall
be deemed to have waived trial by a jury and the case may be
heard in his absence as upon a plea of not guilty." (emphasis
added)).
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