Samuels v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

LARRY E. SAMUELS
OPINION BY
v. Record No. 0377-97-3 JUDGE SAM W. COLEMAN III
APRIL 14, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Dabney Overton, Jr., for appellant.

Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.

Larry E. Samuels was convicted of driving on a suspended

license, see Code § 46.2-301, and driving a motor vehicle while

under the influence of alcohol (DUI) as a third offense. See

Code §§ 18.2-266 and 18.2-270. Samuels contends the trial judge

erred by admitting into evidence a 1987 DUI conviction order to

prove a third offense and to enhance punishment. See Code

§ 18.2-270. He asserts that the 1987 conviction order was

inadmissible because the Commonwealth failed to prove that he was

represented by counsel at the 1987 proceeding. Finding no error,

we affirm the conviction.

I.

Virginia State Trooper Michael Bailey responded to a report

of an accident on Route 340 in Rockingham County. After an

investigation, he charged Samuels with driving under the

influence of intoxicants and driving on a suspended license. At
trial, the Commonwealth introduced into evidence certified copies

of Samuels' prior DUI convictions. Samuels objected to the

admissibility of a summons and criminal warrant for DUI from

Arlington County General District Court, which was offered to

prove that Samuels had been convicted of DUI in 1987 and that his

license had been suspended. He argued that the Commonwealth

failed to affirmatively prove that he had been represented by

counsel or had knowingly waived his right to counsel at the

Arlington proceeding. Samuels offered no evidence and did not

testify at trial that he had not been represented by counsel at

the 1987 DUI proceeding. The trial judge overruled the

objection.
As to the affirmative evidence concerning representation by

counsel, one side of the Arlington County warrant contains the

notations that Samuels pled guilty to DUI, that he was sentenced

to serve thirty days in jail, with twenty-two days suspended, and

that his license was suspended for six months. The name "Joe

Duvall" is handwritten next to the notations pertaining to the

guilty plea. In order to prove that "Joe Duvall" was an attorney

and that he represented Samuels, the Commonwealth introduced a

copy of a continuance form from the Arlington County General

District Court dated November 12, 1986. The continuance form

contained the notation "Atty Joe Duvall," and showed an address

and phone number.

Samuels asserts that the foregoing evidence is insufficient

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to prove that he was represented by counsel. He notes that on

the front side of the warrant no attorney's name or initials

appear in the space under the pre-printed language: "ATTORNEY

FOR THE ACCUSED." Also, on the side of the warrant showing the

"Judgment of the Court" appears the following pre-printed

section:

ATTORNEY(S) PRESENT: COMMONWEALTH
DEFENSE

____________________________________
DATE

____________________________________
JUDGE

Neither block is checked showing that the attorneys were present

nor does a signature appear on the line for the trial judge. A

handwritten date -- "3-11-87" -- which was the trial date, was

written on the date line.

After admitting the Arlington County documents into

evidence, the trial judge ruled that they established that

attorney Joe Duvall had obtained continuances for Samuels and

that Duvall had represented Samuels at trial. The trial judge

found Samuels guilty of driving while his license was suspended

and driving under the influence of alcohol as "a third offense,"

in violation of Code § 18.2-270.
II.

Code § 18.2-270 provides enhanced penalties for offenders

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who are convicted of a "third offense or subsequent offense

committed within ten years of an offense under [Code]

§ 18.2-266." However, a prior, uncounseled conviction resulting

in a jail sentence is "unconstitutional and cannot be used . . .

to . . . enhance punishment for a subsequent [driving under the

influence] conviction." Griswold v. Commonwealth, 252 Va. 113,

116, 472 S.E.2d 789, 791 (1996).

The disposition of the case is controlled by our decisions

in Nicely v. Commonwealth, 25 Va. App. 579, 490 S.E.2d 281
(1997), and James v. Commonwealth, 18 Va. App. 746, 446 S.E.2d

900 (1994). See also Harris v. Commonwealth, ___ Va. App. ___,

___ S.E.2d ___ (1998). "[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 283 (citing Nichols v. United States, 511 U.S. 738,

746 (1994)). However, when, as here, a prior conviction is

collaterally attacked in a subsequent proceeding, "the

Commonwealth is entitled to a presumption of regularity which

attends the prior conviction because 'every act of a court of

competent jurisdiction shall be presumed to have been rightly

done, till the contrary appears.'" Id. at 584, 490 S.E.2d at 283

(quoting Parke v. Raley, 506 U.S. 20, 30 (1992)). "'[E]ven when

a collateral attack on a final conviction rests on constitutional

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grounds, the presumption of regularity that attaches to final

judgments makes it appropriate [for the fact finder to presume

that the conviction was obtained in compliance with the

defendant's right to counsel under the Sixth Amendment and] to

assign a proof burden to the defendant.'" James, 18 Va. App. at

751, 446 S.E.2d at 903 (quoting Parke, 506 U.S. at 30). Thus,

unless the defendant presents evidence rebutting the presumption

of regularity, by which it may be presumed that the conviction

was obtained in compliance with the defendant's right to counsel,

the Commonwealth has satisfied its burden of proving that the

prior conviction was valid and, therefore, was admissible to

establish a third offense in order to enhance punishment.
Harris, ___ Va. App. at ___, ___ S.E.2d at ___. Accordingly,

because the defendant offered no evidence rebutting the

presumption, the trial judge did not err by finding that the 1987

conviction was counseled and admitting it into evidence.

Although the defendant offered no evidence that he was not

represented by counsel at the 1987 DUI proceeding, the trial

court, nevertheless, found the evidence sufficient to

affirmatively prove that the defendant was represented by

counsel. Even though the trial judge could have relied solely on

the presumption of regularity, we find that the additional

evidence further supports the trial court's finding that the 1987

DUI conviction, which included actual incarceration, was

counseled and valid.

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 First, the section of the Arlington DUI warrant on which

appeared the notation "Joe Duvall" was designated "Judgment of

the Court," and this was the section where the disposition of the

case was noted. Also, the continuance request form contained the

notation "Atty Joe Duvall" and an address and telephone number.

The trial judge found that:
Joe Duvall was the counsel who got the
continuance. . . . All the adjudication of
guilt as well as the sentence is on the
warrant. Joe Duvall's name appears on the
warrant and Joe Duvall was the one that got
the continuance on behalf of the defendant.

Here, the continuance form indicates that Joe Duvall was an

attorney and apparently shows his address and telephone number.

The notations on the warrant show that the case was continued

several times. The record supports the inference, which the

trial judge drew as fact finder, that Duvall made an appearance

in the case on behalf of the defendant and obtained a

continuance. The fact that the name "Joe Duvall" was written

beside the judgment order section of the warrant, where the

judge's name and disposition of the case both appeared, further

supports the finding that Duvall appeared at trial as counsel for

Samuels. The warrant contains no notation or indication that

Duvall had ever been relieved by the court of his representation

of Samuels or had been granted leave to withdraw.

An appellate court will not disturb a trial judge's factual

finding unless it is plainly wrong or without evidence to support

it. See Smith v. Commonwealth, 17 Va. App. 68, 71, 435 S.E.2d

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414, 416 (1993).

The trial judge's factual finding that Samuels was

represented by counsel was not plainly wrong or without evidence

to support it. For these reasons, the trial court did not err in

finding that Samuels was represented by counsel or by admitting

Samuels' prior conviction into evidence.

Accordingly, we affirm the conviction.

Affirmed.

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Benton, J., dissenting.

"The rule is well established that 'in every criminal case

the evidence of the Commonwealth must show, beyond a reasonable

doubt, every material fact necessary to establish the offense for

which a defendant is being tried.'" Sargent v. Commonwealth,

5 Va. App. 143, 148, 360 S.E.2d 895, 898 (1987) (citation

omitted). The trial judge's finding that Larry E. Samuels was

represented by counsel in 1987 when Samuels was convicted and

sentenced to jail for driving under the influence of alcohol was

"based only upon speculation and conjecture and cannot be

permitted to stand." Dunn v. Commonwealth, 222 Va. 704, 706, 284

S.E.2d 792, 793 (1981). I would hold that the trial judge erred

in using the 1987 conviction to enhance the punishment for

Samuels' current conviction. See Griswold v. Commonwealth, 252

Va. 113, 116, 472 S.E.2d 789, 791 (1996).

The trial judge's finding that "Joe Duvall was the counsel

who got the continuance" in 1986 is not supported by the

evidence. The Arlington County General District Court form on

which the continuance was requested indicates that on November

12, 1986, Samuels' case was continued to "Dec. 10, 1986" and that

the continuance was "for the Defendant." Although Samuels was

the defendant, the evidence clearly proved that the continuance

request was made "By: E. Wiggins, Assistant Commonwealth

Attorney" and that the form was signed only by "E. Wiggins."

Under Wiggins' signature, the form contains the pre-printed

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notation "Agreed: _____________, Defendant or Attorney." That

line is unsigned. Printed on the form, by the notation

"Other/Remarks," are "Atty Joe Duvall," an address, and a

telephone number. No evidence proves who printed the name and

the identifying information.

In short, that document does not establish that either

Samuels or "Atty Joe Duvall" was present in the Arlington County

General District Court on November 12, 1986, when the continuance

was granted. It indisputably proved, however, that "E. Wiggins,"

the assistant Commonwealth's attorney, requested the continuance

for Samuels. From the failure of the evidence to prove Duvall's

presence, the hypothesis is as likely as not that the assistant

Commonwealth's attorney requested the continuance as a courtesy,

believing that Duvall would represent Samuels.
No evidence proved that Duvall ever made a court appearance.

Although the notations on the warrant establish that the case

was continued to December 10, 1986, and later to January 27,

1987, and March 11, 1987, respectively, no evidence tends to

prove whether on those continued dates Duvall was present in

court and actually represented Samuels. The front of the warrant

contains the pre-printed words "attorney for the accused" and a

space for a name. No writing or name appears in that space. No

evidence tends to prove who wrote the name "Joe Duvall" on the

back of the warrant or when that name was written. Obviously,

the name could have been written on August 20, 1986, when the

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initial hearing was scheduled, or on October 8, 1986, November

12, 1986, December 10, 1986, or January 27, 1987, all of which

appear from the warrant to be continuance dates. Indeed, nothing

in the record refutes the probable inference that on November 12,

1986, when the assistant Commonwealth's attorney requested the

continuance "for the Defendant," the trial judge or the clerk

then wrote the name believing that Joe Duvall would be

representing Samuels at the rescheduled hearing in December 1986.
Samuels was convicted on March 11, 1987, on his plea of

guilty. Samuels needed no attorney to plead guilty. See

Griswold v. Commonwealth, 19 Va. App. 477, 483-84, 453 S.E.2d

287, 291 (1995). Moreover, the warrant suggests that Samuels was

indeed uncounseled on that day. The back of the warrant contains

the following pre-printed words:

ATTORNEY(S) PRESENT: COMMONWEALTH
DEFENSE

____________________________________
DATE

____________________________________
JUDGE

However, only the date "3-11-87" is written in the appropriate

place. The form does not contain either an indication that

attorneys were present or the judge's signature. Thus, the

evidence in this case is not just silent regarding representation

of counsel. The evidence contains a judgment order form on which

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the general district court judge should have noted the presence

of counsel, if counsel was present, but did not do so. The

reasonable inference to be drawn from the omission is that

counsel was not present.

In James v. Commonwealth, 18 Va. App. 746, 752, 446 S.E.2d

900, 903 (1994), this Court specifically held that the

Commonwealth has the burden of persuasion to prove that the prior

conviction was counseled. This Court held that the

Commonwealth's burden is only satisfied upon the following proof:
We hold that the Commonwealth satisfies its
burden of going forward when it produces a
properly certified conviction from a court of
competent jurisdiction which appears on its
face to be a valid final judgment, provided
that in all felony cases and those
misdemeanor proceedings where imprisonment
resulted, there is evidence establishing that
the defendant was represented by or properly
waived counsel in the earlier criminal
proceeding. "Upon such a showing by the
[Commonwealth] the doctrine of 'presumption
of regularity' is then applied, and unless
the defendant presents credible evidence that
there is some constitutional infirmity in the
judgment it must stand."

Id. at 752, 446 S.E.2d at 904 (citation omitted) (emphasis

added).

I disagree with the panel's ruling in Harris v.

Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (1998), that the

holding in James was dictum. In James, the Commonwealth offered

a prior conviction order for the purpose of seeking an enhanced

punishment. The conviction order proved the fact of conviction

and also showed on its face that the defendant had counsel when

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convicted and incarcerated. 18 Va. App. at 749, 446 S.E.2d at

902. The Court held that this proof satisfied the Commonwealth's

burden.

In every case, the introduction of a properly certified

judgment order proves the fact of the conviction. Not all

uncounseled convictions are invalidated for purposes of enhancing

punishment for a subsequent conviction. See Nichols v. United

States, 511 U.S. 738, 749 (1994) (holding that an uncounseled

misdemeanor conviction where no incarceration was imposed may be

used to enhance punishment for a later conviction). Thus, when a

conviction order proves only the fact of a conviction, it may be

presumed valid for purposes of enhancement. See Nicely v.

Commonwealth, 25 Va. App. 579, 585, 490 S.E.2d 281, 283 (1997).

However, where a conviction order on its face proves

incarceration, it may not be used to enhance punishment when the

defendant was uncounseled. See Griswold, 252 Va. at 116, 472

S.E.2d at 791 (citing Burgett v. Texas, 389 U.S. 109, 114-15

(1967)).

When the Commonwealth seeks to enhance a sentence using a

prior conviction that resulted in incarceration, "[p]resuming

waiver of counsel from a silent record is impermissible."
Burgett, 389 U.S. at 114. Because the evidence in James proved

that the defendant's conviction was counseled and the

Commonwealth produced a "properly certified conviction" which

"appeared on its face to be a valid final judgment," the Court

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held that the Commonwealth satisfied its burden of proving the

prior conviction was valid and could be used for sentence

enhancement. The Commonwealth's evidence in James satisfied its

burden because it proved both the fact of conviction and that the

defendant's conviction was counseled. See 18 Va. App. at 749,

446 S.E.2d at 902.

The ruling in Nicely relies upon the holding in James and is

consistent with that holding. There, the Commonwealth

"introduced into evidence a [Department of Motor Vehicles]

'transcript'" to prove a prior conviction. Nicely, 25 Va. App.

at 582, 490 S.E.2d at 282. The transcript did not prove whether

the defendant was incarcerated as a result of the conviction.

See id. at 581, 490 S.E.2d at 282. However, the transcript is

statutorily deemed to be "prima facie evidence that the person

named therein was duly convicted." Code § 46.2-352 (emphasis

added). In that context, this Court held that "the record of a

prior misdemeanor conviction silent with respect to related
incarceration or representation of the accused by counsel, is

entitled to a presumption of regularity on collateral attack."

Nicely, 25 Va. App. at 587, 490 S.E.2d at 284 (emphasis added).

Because of the presumption of regularity attached to the record

of conviction and the absence of any indication of incarceration,

the Commonwealth's failure to offer additional evidence that the

conviction was counseled was irrelevant. Unlike the judgment

order at issue in Samuels' appeal, which proved an incarceration,

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the Division of Motor Vehicles' transcript in Nicely contained no

indication of incarceration and no prescribed place for the

agency to denote the presence of counsel. See Nesselrodt v.

Commonwealth, 19 Va. App. 448, 451, 452 S.E.2d 676, 678 (1994).

Even if we ignore the actual holding in James and apply "the

principle that 'every act of a court of competent jurisdiction

shall be presumed to have been rightly done, till the contrary

appears,'" James, 18 Va. App. at 751, 446 S.E.2d at 903,

(citation omitted), the evidence in this record proved that the

general district court judgment order was not "rightly" done on

precisely the issue the majority opinion presumes correct. In

this case, the Commonwealth sought to prove the prior conviction

by offering as evidence copies of the judgment order of the

general district court where Samuels was convicted. No

presumption of regularity can be given to that judgment order

with respect to the portions of the order that are facially

irregular. The place on the order specifically printed to

require the judge to denote the presence of counsel was not

completed. Unlike the transcript in Nicely, which was in regular
and proper form and proved no incarceration, the judgment order

in this case proved incarceration and clearly failed to denote

the presence of Samuels' counsel, as required to be done on the

face of the order. The document on its face was irregular and

refuted any presumption that could be otherwise accorded to it.

Because the continuance form was submitted by the assistant

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Commonwealth's attorney and because of the lack of information on

the warrant at the places provided to note the presence of

attorneys, I would hold that the Commonwealth failed to prove

that Samuels was counseled when convicted on March 11, 1987.

Nothing on the face of the documents supports the trial judge's

contrary finding. The trial judge's finding is solely based upon

the faulty assumption that "Joe Duvall was the counsel who got

the continuance" in 1986. In upholding that finding, the

majority speculates that the handwritten notation, "Joe Duvall,"

was made because Duvall must have been in the courtroom when

Samuels was convicted in 1987. That speculation is based on a

suspicion that the notation would not otherwise have been made.

"Suspicion, no matter how strong, is not enough. Convictions

cannot rest upon speculation and conjecture." Littlejohn v.

Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d 853, 860 (1997).

Because the record refutes the trial judge's finding and

fails to prove that Samuels was represented by counsel when he

was convicted on March 11, 1987, I dissent.

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