COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
JULIE KAY NICELY
OPINION BY
v. Record No. 0576-96-3 JUDGE RICHARD S. BRAY
SEPTEMBER 16, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY
Duncan M. Byrd, Jr., Judge
Ronald W. Vaught (Parks & Vaught, P.C., on
brief), for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Julie Kay Nicely (defendant) was convicted in a bench trial
of driving under the influence of alcohol, a second like offense
committed within five years, and imposed the attendant enhanced
punishment. On appeal, defendant complains that the trial court
erroneously relied solely upon a Department of Motor Vehicles
(DMV) transcript to establish the requisite prior offense,
finding such conviction constitutional without affirmative proof
that defendant had been represented by or waived counsel or had
been punished without incarceration. Concluding that the earlier
offense was properly proven, we affirm the trial court.
It is uncontroverted that defendant operated a motor vehicle
in Alleghany County on August 26, 1995, while under the influence
of alcohol (DUI), in violation of Code § 18.2-266. See Code
§ 18.2-269(A). Seeking the enhanced punishment for a "second
offense committed within less than five years after a first
offense under Code § 18.2-266," Code § 18.2-270, 2 the
Commonwealth introduced into evidence a DMV "transcript" which
reported a timely prior conviction of defendant for DUI in the
General District Court of Roanoke County, Virginia. The parties
agree, however, that the transcript did not indicate "(a) whether
Defendant was represented by counsel or (b) whether she was
sentenced to jail, with time to serve . . . ," and the record
provides no further particulars of the earlier proceeding.
THE PRIOR CONVICTION
Code § 18.2-270 prescribes several penalties for DUI in
violation of Code § 18.2-266, enhanced for second and subsequent
offenses. However, to convict and punish an accused for
successive violations, "the prior offense[s] must be charged and
proven." Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d
740, 741 (1974) (quoting Commonwealth v. Ellett, 174 Va. 403,
413, 4 S.E.2d 762, 766 (1939)). In aid of such proof, Code
§ 46.2-384 provides that:
Every law-enforcement officer who has
arrested any person for (i) [DUI] . . . shall
request from the [DMV] an abstract or
2
Code § 18.2-270 provides, in relevant part, that:
Any person convicted of a second offense
committed within less than five years after a
first offense under § 18.2-266 shall be
punishable by a fine of not less than $200
nor more than $2,500 and by confinement in
jail for not less than one month nor more
than one year. Forty-eight hours of such
confinement shall be a mandatory, minimum
sentence not subject to suspension by the
court.
2
transcript of the person's driver's
conviction record on file at the
[DMV]. . . . In any such prosecution wherein
a necessary element of the offense charged is
that the defendant was previously convicted
of the same or similar offense, . . . (2)
that portion of the transcript relating to
the relevant prior conviction[] shall be
prima facie evidence of the facts stated
therein with respect to the prior offense.
Id. (emphasis added). Prima facie evidence is "'sufficient to
raise a presumption of fact or establish the fact in question
unless rebutted.'" Moffitt v. Commonwealth, 16 Va. App. 983,
987, 434 S.E.2d 684, 687 (1993) (quoting Babbitt v. Miller, 192
Va. 372, 379-80, 64 S.E.2d 718, 722 (1951)).
Here, defendant was arrested and prosecuted for DUI,
"subsequent offense," a violation of Code § 18.2-266, which, if
proven, would mandate an enhanced penalty. Thus, "a necessary
element of the offense charged" was a previous conviction for the
"same or similar offense," a circumstance clearly contemplated by
Code § 46.2-384, permitting the introduction of "that portion of
[defendant's DMV] transcript relating to the relevant prior
conviction" as "prima facie evidence of the facts stated
therein." Code § 46.2-384. Accordingly, the disputed transcript
sufficiently proved defendant's earlier DUI conviction until
"'that . . . evidence . . . be repelled.'" Moffitt, 16 Va. App.
at 987, 434 S.E.2d at 687 (quoting Babbitt, 192 Va. at 380, 64
S.E.2d at 722); see Nesselrodt v. Commonwealth, 19 Va. App. 448,
451-52, 452 S.E.2d 676, 678 (1994) (en banc).
3
THE ENHANCED PUNISHMENT
Nevertheless, defendant contends that the Commonwealth's
evidence must also affirmatively establish that the earlier
conviction was free from constitutional infirmity by proof that
she (1) served no jail time, or (2) either waived her Sixth
Amendment right to counsel or was represented by counsel.
Because the transcript relied upon by the Commonwealth was silent
on these incidents of the previous proceedings, defendant
challenges the sufficiency of the evidence to support imposition
of an enhanced punishment.
It 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. See Nichols v. United States, 511 U.S. 738, 746-49
(1994); see also Griswold v. Commonwealth, 252 Va. 113, 116-17,
472 S.E.2d 789, 790-91 (1996). 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. See Nichols, 511 U.S. at 746 (citing Scott v.
Illinois, 440 U.S. 367, 372-74 (1979)); see also Griswold, 252
Va. at 116-17, 472 S.E.2d at 790-91. Although we have not
heretofore allocated the burden of proof in assessing compliance
4
with defendant's Sixth Amendment right to counsel in the absence
of evidence of both counsel and incarceration, we have approved
shifting the burden to a defendant challenging the
constitutionality of a prior guilty plea under such
circumstances. See James v. Commonwealth, 18 Va. App. 746,
750-52, 446 S.E.2d 900, 902-04 (1994); see also Parke v. Raley,
506 U.S. 20, 29 (1992) (guilty plea constitutes waiver of Sixth
Amendment rights to jury trial and confrontation and Fifth
Amendment privilege against self-incrimination).
In James, we rejected the argument that the Commonwealth's
proof of a prior DUI for enhancement purposes in another
prosecution must affirmatively establish that James had
"knowingly and intelligently waived his constitutional rights" in
tendering his guilty plea to the previous offense. Id. at 749,
446 S.E.2d at 902 (citing Boykin v. Alabama, 395 U.S. 238, 242
(1969)). We acknowledged that, on direct appeal of a conviction,
"no waiver of constitutional rights will be presumed and a silent
record cannot be considered a waiver," but distinguished our
standard of review of a conviction under collateral attack in a
subsequent trial. Id. at 750-51, 446 S.E.2d at 902-03. In the
latter 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 751,
446 S.E.2d at 903 (quoting Parke, 506 U.S. at 29).
5
Thus,
the Commonwealth satisfies its burden
. . . 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.
Id. at 752, 446 S.E.2d at 904 (emphasis added). "A silent record
or the mere naked assertion by an accused" that his
constitutional rights were violated is "insufficient" to rebut
the presumption of validity. Id. Here, the transcript
established defendant's previous misdemeanor conviction, without
suggestion of imprisonment, a circumstance which did not
implicate the Sixth Amendment right to counsel in a collateral
review of the conviction, see Nichols, 511 U.S. at 746, and
entitled the Commonwealth to the presumption of regularity
without offending due process. See Parke, 506 U.S. at 27-34;
James, 18 Va. App. at 750-52, 446 S.E.2d at 902-04.
Defendant's reliance on Griswold v. Commonwealth, 252 Va.
113, 472 S.E.2d 789 (1996), is misplaced. 3 In Griswold, the
record affirmatively disclosed that Griswold had been imprisoned
for a prior misdemeanor conviction, rendered without the benefit
3
Defendant also cites Sargent v. Commonwealth, 5 Va. App.
143, 360 S.E.2d 895 (1987), a decision of this Court which relied
upon Baldasar v. Illinois, 446 U.S. 222 (1980), overruled by
Nichols v. United States, 511 U.S. 738 (1994).
6
of counsel. See id. at 114-15, 472 S.E.2d at 790. The
conviction, therefore, was not favored with a presumption of
regularity. In contrast, the transcript of defendant's disputed
misdemeanor conviction reflects neither the imposition of jail
time nor the absence of counsel.
Similarly, our view is not inconsistent with Burgett v.
Texas, 389 U.S. 109 (1967), and its progeny. The evidence of the
previous conviction in Burgett included two "records," one
reciting that the accused appeared "'without Counsel,'" and the
other making no reference to counsel. Id. at 112. The Court,
therefore, reasoned that the "records of . . . conviction on
their face raise a presumption that petitioner was denied his
right to counsel." Id. at 114 (emphasis added). The record in
this instance reflects nothing with respect to counsel,
conflicting or otherwise.
In Parke v. Raley, 506 U.S. 20 (1992), which, like James,
addressed a challenge to the evidence of voluntariness incidental
to a prior guilty plea, the accused urged a broad reading of
Burgett to support "the proposition that every previous
conviction used to enhance punishment is 'presumptively void' if
waiver of [any] claimed constitutional right does not appear from
the face of the record." Id. at 31. However, the Court refused
to "read the decision [in Burgett] so broadly," emphasizing that
[a]t the time the prior conviction at issue
in Burgett was entered, state criminal
defendants' federal constitutional right to
counsel had not yet been recognized, and so
it was reasonable to presume [from a silent
7
record] that the defendant had not waived a
right he did not possess. . . . [T]he same
cannot be said about a record that, by virtue
of its unavailability on collateral review,
fails to show compliance with . . .
well-established [constitutional]
requirements.
Id. Thus, the Court's distinction between Parke and Burgett
arose from jurisprudential evolution rather than the disparate
treatment of coequal constitutional safeguards.
Parke clearly instructs that, "even when a collateral attack
on a final conviction rests on constitutional grounds, the
presumption of regularity that attaches to final judgments makes
it appropriate to assign a proof burden to the defendant." Id.
Surveying the practices followed in both guilty plea and
right-to-counsel cases, the Court expressly recognized that
"state courts . . . have allocated proof burdens differently,"
noting with approval that some
place the full burden on the prosecution.
Others assign the entire burden to the
defendant once the government has established
the fact of conviction. Several, like
Kentucky [the state practice at issue in
Parke], take a middle position that requires
the defendant to produce evidence of
invalidity once the fact of conviction is
proved but that shifts the burden back to the
prosecution once the defendant satisfies his
burden of production.
Id. at 32-33 (citations omitted). The Court concluded that
"[t]his range of contemporary state practice certainly does not
suggest that allocating some burden to the defendant is
8
fundamentally unfair." Id. at 33. 4
Accordingly, 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 in a recidivist proceeding and
may provide sufficient evidence to support the imposition of an
enhanced punishment.
Affirmed.
4
In Parke, see 506 U.S. at 33, the Court implicitly approved
a state practice conferring "a presumption of regularity [on a
prior felony conviction], including the presumption that the
defendant was represented by counsel." Utah v. Triptow, 770 P.2d
146, 149 (Utah 1989) (emphasis added); accord Montana v. Okland,
___ P.2d ___, ___ (Mont. May 29, 1997) (in collateral review of
prior conviction for constitutionality, Burgett and Parke permit
state to allocate burden of proof on issue of right to counsel);
see also Idaho v. Beloit, 844 P.2d 18, 19 (Idaho 1992) (applying
same principles to waiver of rights on counseled prior guilty
plea).
9