Present: All the Justices
MARK DYWAYNE BISHOP
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v. Record No. 070640 January 11, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
I.
Code § 46.2-357(A) states in relevant part:
"It shall be unlawful for any person determined
or adjudicated an habitual offender to drive any
motor vehicle or self-propelled machinery or
equipment on the highways of the Commonwealth while
the revocation of the person's driving privilege
remains in effect."
The sole issue that we consider in this appeal of a
judgment from the Court of Appeals is whether the Commonwealth
proved beyond a reasonable doubt that a defendant, who was
convicted for a violation of Code § 46.2-357, received actual
notice that he had been determined to be an habitual offender.
II.
Mark Dywayne Bishop was convicted in the Circuit Court of
the City of Williamsburg and County of James City of driving a
motor vehicle after having been declared an habitual offender
in violation of Code § 46.2-357. Bishop appealed and asserted
in the Court of Appeals that the Commonwealth failed to prove
that he had received actual notice of a determination or
adjudication as an habitual offender and, therefore, the
Commonwealth did not establish that he violated Code § 46.2-
357. The Court of Appeals affirmed the conviction. Bishop v.
Commonwealth, 49 Va. App. 251, 639 S.E.2d 683 (2007). Bishop
appeals.
III.
A.
Applying well-settled principles of appellate review, we
will state the evidence in the light most favorable to the
Commonwealth, the prevailing party in the circuit court.
Pruitt v. Commonwealth, 274 Va. 382, 384, 650 S.E.2d 684, 684
(2007); Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d
26, 28 (2005).
The following evidence was adduced at a bench trial in
the circuit court. In December 2004, two police officers went
to Bishop's home in James City County to serve him with an
arrest warrant. Bishop was not present when the officers
arrived. The officers parked their cars behind a residence so
that Bishop would not be able to see them upon his arrival.
Subsequently, the officers observed Bishop drive a motor
vehicle on a public street and enter a driveway on Bishop's
property. Bishop parked the car and began to walk towards his
house.
The police officers approached Bishop and informed him
that they had a warrant for his arrest. Initially, the
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defendant denied that he was Mark Bishop and stated that his
name was Eric. One of the officers informed Bishop that he
was under arrest, and a scuffle ensued. The officers managed
to subdue Bishop and arrest him.
The Commonwealth also introduced in evidence Bishop's
lengthy driving record from the Department of Motor Vehicles.
The following entries on that record constitute the sole
evidence relating to the notice that Bishop received regarding
his status as an habitual offender:
"DETERMINED ON: 1997/04/23 HABITUAL OFFENDER BY
DMV
ELIGIBLE TO RESTORE UNDER CURRENT LAW
ON:
RESTRICTED: N/A FULL: 2000/04/23
"REVOCATION ISS: 1997/04/28 EFFECTIVE: 1997/05/28
FOR HO DETERMINATION PROCESS
NOTIFIED: 2001/03/10 BY LAW
ENFORCEMENT
ORDER DELIVERY DATE: ORDER MAILED"
B.
Bishop asserts in this Court, as he did in the
circuit court and the Court of Appeals, that the
Commonwealth failed to establish that he received actual
notice of his adjudication as an habitual offender and,
therefore, he could not be convicted of a violation of
Code § 46.2-357. We agree with Bishop's contentions.
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"It is elementary that the burden is on the Commonwealth
to prove every essential element of the offense beyond a
reasonable doubt." Powers v. Commonwealth, 211 Va. 386, 388,
177 S.E.2d 628, 629 (1970). This fundamental precept has been
the bedrock of Virginia's criminal jurisprudence since the
inception of this Commonwealth. For example, in Savage v.
Commonwealth, 84 Va. 582, 585, 5 S.E. 563, 564 (1888), we
stated: "In a criminal case, the defendant is entitled to an
acquittal, unless his guilt is established beyond a reasonable
doubt."
We recently restated this elemental precept in Ellison v.
Commonwealth, 273 Va. 254, 257-58, 639 S.E.2d 209, 212 (2007):
"Because of the stringent standard of proof the law imposes
upon the prosecution, [finders of fact] must acquit unless
they find each element of the crime charged to have been
proved beyond a reasonable doubt." In Washington v.
Commonwealth, 273 Va. 619, 623, 643 S.E.2d 485, 487 (2007), we
stated:
" 'The burden of proof upon the state in a
criminal case was given constitutional status in In
re Winship, 397 U.S. 358, 364 (1970) wherein the
Court stated "that the Due Process Clause protects
the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged."
Commonwealth v. Hudson, 265 Va. 505, 512, 578 S.E.2d
781, 785 (2003); accord Dobson v. Commonwealth, 260
Va. 71, 74, 531 S.E.2d 569, 571 (2000); Stokes v.
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Warden, 226 Va. 111, 117, 306 S.E.2d 882, 885
(1983).' "
In order to obtain a conviction against a defendant
charged with a violation of Code § 46.2-357, the Commonwealth
must prove, beyond a reasonable doubt, that the defendant
drove a motor vehicle on a public highway while his driving
privilege was revoked; that the defendant had been determined
or adjudicated an habitual offender; and that the defendant
received actual notice of his status as an habitual offender.
See Reed v. Commonwealth, 15 Va. App. 467, 471-72, 424 S.E.2d
718, 720-21 (1992). The only issue in this appeal is whether
the Commonwealth proved beyond a reasonable doubt that the
defendant, Bishop, received actual notice that he had been
adjudicated an habitual offender.
The Commonwealth does not dispute that it was required to
prove beyond a reasonable doubt that Bishop received actual
notice of his adjudication as an habitual offender in order to
establish a violation of Code § 46.2-357. However, the
Commonwealth, relying upon the following entry in the records
from the Department of Motor Vehicles, claims that it
satisfied this proof burden:
"REVOCATION ISS: 1997/04/28 EFFECTIVE: 1997/05/28
FOR HO DETERMINATION PROCESS
NOTIFIED: 2001/03/10 BY LAW
ENFORCEMENT
ORDER DELIVERY DATE: ORDER MAILED"
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We disagree with the Commonwealth's contention.
The first entry, "Revocation ISS 1997/04/28 Effective:
1997/05/28 For HO Determination Process," is confusing and
does not contain any information about Bishop's status as an
habitual offender. The next entry states: "Notified:
2001/03/10 by law enforcement." This entry does not specify
the content of any notification that may have been provided to
Bishop, and this entry does not identify the person, agency,
or entity that constituted "law enforcement."
The final entry states, "Order delivery date: Order
mailed." This entry provides absolutely no proof of actual
notice to anyone. Indeed, the above-referenced entries in the
Department of Motor Vehicles' transcript are devoid of proof
beyond a reasonable doubt, which is the only standard that can
be applied in a criminal proceeding, that Bishop received
actual notice of his adjudication as an habitual offender.
We reject the Commonwealth's contention and the holding
of the Court of Appeals that defendant's counsel, during his
closing argument in the circuit court and in a pleading filed
in the Court of Appeals, made a factual concession that Bishop
received actual notice that he had been determined or
adjudicated an habitual offender. Bishop's counsel made the
following argument at trial:
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"[The Department of Motor Vehicles' transcript]
will tell you that the revocation which occurred
April 28, 1997, I'm sorry, April 28, 1997, that he
was notified for the H.O. determination, that is the
habitual offender determination by law enforcement.
It doesn't actually say he was notified after he was
declared habitual offender. I think that is an
important distinction.
"He was notified of the process whereby he was
going to be waived or where he was going to be
adjudicated habitual offender so that he would know
that it was going to occur, but it doesn't actually
say he was notified having been adjudicated an
habitual offender.
"And I would suggest to the Court that under
the Reed case, and I have copies right here. First
of all, actual notice is required and I would
suggest to the Court we don't even see constructive
notice on this record. We know he was notified that
there was going to be a termination, but we don't
see in the record that he was going to be notified
that he was determined habitual offender. But I
would suggest that without notice we cannot sustain
a conviction."
In his brief filed in the Court of Appeals, Bishop's
counsel stated:
"The DMV record in this case has two notations,
the interpretation of which is the critical issue
here. First, the record indicates that on April 23,
1997, Appellant was 'DETERMINED' to be an habitual
offender by DMV. The record does not show whether
or not Appellant was ever notified of this
determination. Immediately below this notation is
an indication that there existed a 'REVOCATION'
issued on April 28, 1997 and effective on May 28,
1997. The notation then reads: 'FOR HO
DETERMINATION PROCESS.' That same entry reflects
that an order was mailed and that Appellant received
notification from law enforcement on March 10, 2001.
"The DMV record is ambiguous on its face,
however, a point which Appellant's trial counsel
noted. It indicates that Appellant was notified of
something by law enforcement, but not as to what
that something was. The most clear reading of the
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DMV record, and the only one supported by the plain
language, is that Appellant was notified of the 'HO
DETERMINATION PROCESS,' not that he was notified
that he was or had been declared an habitual
offender."
(Emphasis added; citations omitted.)
Upon our review of these statements, we conclude that the
defendant plainly did not make a factual concession in the
circuit court or the Court of Appeals that he had received
actual notice from the Department of Motor Vehicles that he
had been adjudicated as an habitual offender. We note that
this conclusion is consistent with the dissenting opinion
filed in the Court of Appeals. Bishop v. Commonwealth, 49 Va.
App. 251, 261-64, 639 S.E.2d 683, 687-89 (2007) (Willis, J.,
concurring in part and dissenting in part).
Bishop was also convicted, among other things, of a
violation of Code § 18.2-460(C). The Commonwealth has
confessed error and agrees that this conviction must be
vacated because of this Court's decision in Washington v.
Commonwealth, 273 Va. 619, 628, 643 S.E.2d 485, 490 (2007).
The Commonwealth's remaining arguments are without merit.
Accordingly, we will dismiss the defendant's conviction for
the violation of Code § 46.2-357. As requested by the
Commonwealth and the defendant, we will vacate the conviction
for the violation of Code § 18.2-460(C), and we will remand
this portion of the case to the circuit court for a new
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sentencing proceeding on the lesser included offense as set
forth in Code § 18.2-460(B).
Reversed, vacated,
dismissed in part,
and remanded in part.
JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting.
By posing the wrong question, the majority, in my
judgment, errs in its resolution of this appeal. If the
question in this case was whether the DMV transcript alone was
sufficient to prove beyond a reasonable doubt that Bishop
actually received some form of notification, I would agree
with the majority. But that is not the question presented in
this appeal.
Contrary to the contention of the majority, in the Court
of Appeals Bishop concedes that he received notice. The only
question remaining has to do with the content of the notice.
Bishop states in his brief, “The DMV record is ambiguous on
its face, however, a point which Appellant’s trial counsel
noted. It indicates that Appellant was notified of something
by law enforcement, but not as to what that something was.”
The only question presented to this Court on the question of
Bishop’s violation of Code § 46.2-357 is the content of the
notice that he admits he received.
The evidence viewed in the light most favorable to the
Commonwealth, the prevailing party below, is sufficient to
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prove the content of the conceded notice beyond a reasonable
doubt. The DMV transcript received in evidence shows under
the heading “DETERMINED” that on April 23, 1997 Bishop was
determined to be an habitual offender. Immediately after this
entry on the DMV transcript under the heading “REVOCATION”,
the transcript shows that a revocation order was issued 5 days
after the determination of habitual offender status. Under
the same heading, the transcript shows that Bishop was
notified by law enforcement. In my judgment there can be no
question about the content of the notification that Bishop
concedes he received.
I respectfully dissent.
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