COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
HAROLD OSCAR ROSE, JR.
OPINION BY
v. Record No. 0361-01-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SUSSEX COUNTY
Robert G. O'Hara, Jr., Judge
Connie Louise Edwards (Connie Louise Edwards,
P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Randolph A. Beales, Attorney
General, on brief), for appellee.
Harold Oscar Rose, Jr. (appellant) was convicted in a bench
trial of unlawfully and feloniously driving a motor vehicle
after having been found to be an habitual offender, second or
subsequent offense, in violation of Code § 46.2-357. 1 On appeal,
he contends the initial order that adjudicated him to be an
habitual offender was invalid and that the Commonwealth's
evidence was insufficient to support a conviction for felony
habitual offender, second or subsequent offense, because of the
1
Appellant also was convicted of carrying a concealed
weapon, second or subsequent offense, in violation of
Code § 18.2-308, but that conviction is not at issue here.
infirmities in the original order. We find no error and affirm
the trial court.
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 June 13, 2000, at
approximately 8:30 a.m., Game Warden John Rush (Rush) was sitting
in the parking lot of a 7-11 store in Wakefield, Virginia. He
observed appellant drive a truck into the parking lot and walk
into the store. Rush followed him into the store and saw part
of the muzzle of a .45 automatic pistol under appellant's vest.
Rush placed appellant under arrest for carrying a concealed
weapon and, after receiving information from Sussex County, also
charged him with driving after being adjudicated an habitual
offender. Appellant denied being the driver of the truck;
however, Rush saw no one else in the truck, and no other person
was located at the scene.
At trial, the Commonwealth introduced an August 6, 1996
order from the Newport News General District Court that
adjudicated appellant to be an habitual offender. The judge
signed and dated the form order, noted appellant's absence, and
- 2 -
marked three preprinted boxes. The boxes included the following
findings: (1) "That the respondent is the same person named in
the record"; (2) "That the respondent was convicted of each
offense shown by the transcript or abstract"; and (3) "That the
respondent is an habitual offender." However, the judge failed
to check any of the boxes under the section entitled, "AND IT IS
THEREFORE ORDERED," including the language revoking appellant's
driver's license and ordering him "not to operate a motor
vehicle on the highways of the Commonwealth." The order was
personally served on appellant on August 8, 1996.
The Commonwealth then introduced a March 6, 2000 order of
conviction for first offense, misdemeanor, driving as an
habitual offender, from the Circuit Court of the City of
Virginia Beach. At that hearing, appellant was represented by
counsel and pled guilty to the charged offense.
Appellant conceded the authenticity of the documents but
objected to the admission of both. The trial court overruled the
objections and found the evidence sufficient to convict.
II. STANDARD OF REVIEW
In reviewing sufficiency of the evidence, "the judgment of
the trial court sitting without a jury is entitled to the same
weight as a jury verdict." Saunders v. Commonwealth, 242 Va.
107, 113, 406 S.E.2d 39, 42, cert. denied, 502 U.S. 944 (1991).
- 3 -
"[T]he trial court's judgment will not be set aside unless
plainly wrong or without evidence to support it." Hunley v.
Commonwealth, 30 Va. App. 556, 559, 518 S.E.2d 347, 349 (1999).
III. VALIDITY OF THE NEWPORT NEWS ORDER
Appellant contends that because the judge did not complete
the Newport News adjudication order, it was a "non-order" and
could not serve as the basis for a proper declaration of his
status as an habitual offender. In effect, he argues that the
adjudication order was void, and his later plea of guilty could
not supply the factual predicate that he had actual notice that
he was "directed not to operate a motor vehicle on the highways
of the Commonwealth." We disagree.
Code § 46.2-355, in effect at the time of appellant's
habitual offender adjudication, provided in pertinent part:
If the court finds that the person is the
same person named in the transcript or
abstract, that the person is an habitual
offender and that clause (iii) above does
not apply, the court shall enter an order
(i) revoking the person's license if the
proceeding is pursuant to § 46.2-351.2 or
(ii) affirming the determination of the
Commissioner and the revocation of the
person's license if the proceeding is
pursuant to § 46.2-352 and directing the
person not to operate a motor vehicle on the
highways in the Commonwealth and to
surrender to the court all licenses or
permits to drive a motor vehicle on the
highways in the Commonwealth.
- 4 -
However, we held in Reed v. Commonwealth, 15 Va. App. 467, 424
S.E.2d 718 (1992), that:
Code § 46.2-355 [] requires proof of
actual knowledge that one has been declared
to be an habitual offender before one can be
convicted of driving after having been so
declared and ordered not to drive. Although
Code § 46.2-357 does not expressly provide
that the Commonwealth prove scienter or mens
rea, we find that the provisions in
Code § 46.2-355 that the order direct the
person not to drive and to surrender his
license, and the further directive that a
copy of the order be mailed to the defendant
if it appears he was not present, bespeak a
requirement that the person receive actual
notice of having been declared an habitual
offender and directed not to drive before he
can be convicted and imprisoned for driving
after having been declared an habitual
offender.
Id. at 471, 424 S.E.2d at 720-21.
Thus, under Reed, appellant must receive actual notice that
he has been (1) declared to be an habitual offender and (2)
directed not to drive prior to the charged offense. Clearly,
appellant was personally served with the Newport News
adjudication order that established his "status" as an habitual
offender. However, the second element was not properly
addressed in the order because the trial judge failed to check
the box directing him not to drive. Thus, the order failed to
meet the second Reed directive. "A court speaks through its
orders and those orders are presumed to accurately reflect what
- 5 -
transpired." McBride v. Commonwealth, 24 Va. App. 30, 35, 480
S.E.2d 126, 128 (1997).
However, our inquiry does not end there. We disagree with
appellant's contention that the August 6, 1996 adjudication
order is void and, thus, we must consider whether other evidence
can establish the second prong of the Reed requirement.
The distinction between an action of
the court that is void ab initio rather than
merely voidable is that the former involves
the underlying authority of a court to act
on a matter whereas the latter involves
actions taken by a court which are in error.
An order is void ab initio if entered by a
court in the absence of jurisdiction of the
subject matter or over the parties, if the
character of the order is such that the
court had no power to render it, or if the
mode of procedure used by the court was one
that the court could "not lawfully adopt."
The lack of jurisdiction to enter an order
under any of these circumstances renders the
order a complete nullity and it may be
"impeached directly or collaterally by all
persons, anywhere, at any time, or in any
manner." . . . In contrast, an order is
merely voidable if it contains reversible
error made by the trial court.
Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)
(internal citations omitted). See also Nelson v. Warden of the
Keen Mountain Correctional Center, 262 Va. 276, 552 S.E.2d 73
(2001).
"Where a[n] habitual offender adjudication rests upon valid
subject matter and personal jurisdiction and is not appealed,
that adjudication becomes final and neither the adjudication nor
- 6 -
the underlying convictions can be collaterally attacked."
Commonwealth v. Brown, 28 Va. App. 781, 790, 508 S.E.2d 916, 921
(1999).
In a factually similar case, Dicker v. Commonwealth, 22 Va.
App. 658, 472 S.E.2d 655 (1996), the defendant argued that a
conviction order was void because the district court judge
failed to check all the appropriate boxes indicating his plea
and whether he was found guilty, not guilty, or guilty of a
lesser-included offense. We held:
Although the informational deficiencies of
the order might have rendered it reversible
on appeal, the order was, at worst,
voidable, not void. Because the order was
never reversed, it remained a valid
conviction. The order shows on its face
that it was a valid exercise of the general
district court's subject matter,
territorial, and personal jurisdiction.
Id. at 662, 472 S.E.2d at 657.
The same analysis applies to the instant case. Appellant
challenges neither the validity of the subject matter, nor the
personal jurisdiction underlying his Newport News adjudication.
Rather, he argues that the deficiencies in the order render it
void. We hold that, at best, like Dicker, the order was
voidable.
IV. SUFFICIENCY OF THE EVIDENCE
Thus, the issue remaining to be addressed on the conviction
at issue here, his second driving after having been adjudged an
- 7 -
habitual offender, is whether all the evidence at trial supports
the finding that appellant had actual knowledge at the time of
this offense that he was an habitual offender and that he was
forbidden to drive on the highways of the Commonwealth at that
time. We hold the evidence supports the trial court's finding
that appellant had knowledge of both his status as an habitual
offender and the accompanying prohibition not to drive.
V. GUILTY PLEA
"[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 omitted), aff'd on rehearing en banc, 14 Va. App. 58,
414 S.E.2d 440 (1992). "'A plea of guilty that is voluntarily
and intelligently made by an accused is a conviction and nothing
is left but the imposition of the prescribed punishment.'" Id.
(quoting Miracle v. Peyton, 211 Va. 123, 126, 176 S.E.2d 339,
340 (1970)). 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).
Appellant claims that his plea of guilty to the intervening
March 6, 2000 Virginia Beach charge of driving while an habitual
- 8 -
offender should not have been considered by the trial court in
determining whether he had knowledge of his continuing status as
an habitual offender and its attendant prohibition not to drive.
Appellant argues that he acted under a "mistake of fact" that
the adjudication order was valid and also that his plea was an
"evidential admission" rather than a "judicial admission" as
characterized by the trial judge. 2 Neither contention has merit.
The evidence shows there was no "mistake of fact" because
the adjudication order was merely voidable and remained in
effect. Additionally, the trial court properly considered
appellant's plea of guilty to the same offense three months
earlier as proof that he was aware of both his habitual offender
status and that he was not allowed to drive. The trial court
also properly considered appellant's untruthful denial that he
was the driver of the truck as affirmative evidence that he knew
he was forbidden to drive.
2
Evidential admissions "are statements made outside of the
scope of the court proceedings. These are admissible in
evidence but are not binding or conclusive. They may be denied,
rebutted, or explained away, and the weight to be given to them
is a matter for the trier of fact." Charles E. Friend, The Law
of Evidence in Virginia § 18-37 (5th ed. 1999). By contrast,
judicial admissions "are concessions made by a party during the
course of litigation which bind the party and prevent contrary
evidence from being introduced." Id. "It should be noted that
both guilty pleas and testimony at a former trial are
evidential, not judicial, admissions." Id. § 18-52. In the
instant case, the fact that the trial court mischaracterized the
type of admission does not preclude its consideration.
- 9 -
The credibility of a witness and the
inferences to be drawn from proven facts are
matters solely for the fact finder's
determination. See Long v. Commonwealth, 8
Va. App. 194, 199, 379 S.E.2d 473, 476
(1989). In its role of judging witness
credibility, the fact finder is entitled to
disbelieve the self-serving testimony of the
accused and to conclude that the accused is
lying to conceal his guilt. See Speight v.
Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d
95, 98 (1987) (en banc).
Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d
233, 235 (1998).
Thus we hold the evidence is sufficient to prove that
appellant had been adjudicated an habitual offender, had
knowledge of this status and the accompanying prohibition not to
drive, and operated a motor vehicle with this knowledge.
For these reasons, we affirm the trial court.
Affirmed.
- 10 -