COURT OF APPEALS OF VIRGINIA
Present: Judges Fitzpatrick, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia
GREGORY ROBERT FOLSON
OPINION BY
v. Record No. 1564-95-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 26, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
William T. Newman, Jr., Judge
Charles L. King, for appellant.
Richard B. Smith, Assistant Attorney General
(James S. Gilmore III, Attorney General, on
brief), for appellee.
Following a jury trial in the Circuit Court of Arlington
County, appellant, Gregory Robert Folson, was convicted of grand
larceny from the person and sentenced to ten years imprisonment.
On appeal, appellant argues that the trial court's sentencing
order should be reversed and that the case should be remanded for
a new sentencing hearing because the trial court admitted
improper evidence of his prior convictions. We disagree and
affirm the sentence of the trial court.
I.
Attempting to present appellant's prior convictions at the
sentencing phase of his trial, the Commonwealth sought to admit
two packets of documents it received from the Circuit Court of
Prince George's County, Maryland, as "certified, attested or
exemplified copies of [appellant's] record of conviction." See
Code § 19.2-295.1. 1 The first packet included a copy of
appellant's indictment for unlawful distribution of PCP; the case
number appears to have been 8802*5. 2 The next document, entitled
"DOCKET ENTRIES," established that appellant was sentenced to
eighteen months imprisonment in case number 88-0275. The second
packet contained a document entitled "commitment record," which
established that appellant was found guilty and received a ten
year sentence on charges of robbery, assault with intent to avoid
lawful apprehension, and conspiracy to commit robbery. 3 Each
packet was bound by seal and string and was received under cover
of a document certifying that its contents were "true copies of
originals on file and of record . . . and that [the] originals
together, constitute the record of the proceedings . . . in [the]
case." The certificates were signed by the clerk of the court; a
1
Code § 19.2-295.1 provides, in part:
In cases of trial by jury, upon a
finding that the defendant is guilty of a
felony, a separate proceeding limited to the
ascertainment of punishment shall be held as
soon as practicable before the same jury. At
such proceeding, the Commonwealth shall
present the defendant's prior criminal
convictions by certified, attested or
exemplified copies of the record of
conviction . . . . Prior convictions shall
include convictions . . . under the laws of
any state . . . .
2
The fifth digit on the photocopy has a hole punched
through it and is impossible to read.
3
The "commitment record" is prepared by the clerk of
court when a defendant is convicted of an offense and sentenced
to imprisonment. It is presented by the clerk to the officer
into whose custody the defendant is placed. Md. Rule 4-351.
- 2 -
judge of the court certified the clerk's attestation; and the
clerk then certified the judge's authority. The second packet
contained another certification by the clerk that the "foregoing
is a true copy of the docket entries in the above entitled case."
Appellant objected to the admission of the documents on the
ground that they were not "records of conviction" within the
meaning of Code § 19.2-295.1. Appellant further argued that the
certification showed only that the documents were true
representations of the originals, not that they were evidence of
appellant's prior convictions. The court disagreed, finding that
the statute does not require the Commonwealth to produce a final
order, signed by a judge. Furthermore, the court found that the
documents contained sufficient information to determine that
appellant had been convicted for the identified offenses.
Accordingly, the trial court found that the documents constituted
"records of conviction" and admitted them as evidence of
appellant's prior criminal convictions.
II.
On appeal, we must determine what evidence is admissible as
a "record of conviction" within the meaning of Code § 19.2-295.1.
Appellant argues that only a final order, signed by a judge, is
admissible as a "record of conviction." The Commonwealth
contends that the statute should not be so narrowly construed.
This is an issue of first impression. 4
4
We have held that a "record of conviction" includes
evidence of prior sentences as well as the fact of conviction,
- 3 -
(..continued)
see Gilliam v. Commonwealth, 21 Va. App. 519, 465 S.E.2d 592
(1996), and that evidence of convictions after the date of the
charged offense but "prior" to the bifurcated sentencing hearing
is admissible. See Bunn v. Commonwealth, 21 Va. App. 593, 466
S.E.2d 744 (1996). These decisions address the admissibility of
evidence contained in a "record of conviction" and the
admissibility of which "records of conviction." They do not
address what evidence may be deemed to constitute a "record of
conviction."
- 4 -
Nothing in the plain language of Code § 19.2-295.1 requires
that a "record of conviction" be established only by the
admission of a final order of conviction. The language of Code
§ 19.2-295.1 describes a "record," not an "order." The plain
meaning of the word "record" is
[a] written account of some act, court
proceeding, transaction, or instrument, drawn
up, under authority of law, by a proper
officer, and designed to remain as a memorial
or permanent evidence of the matters to which
it relates.
Black's Law Dictionary 1144 (5th ed. 1979). Thus, we find that
"record of conviction" means a "record" evidencing the fact of
conviction. While a final order of conviction may be the most
expedient means of establishing a "record of conviction," we do
not find Code § 19.2-295.1 limited to such evidence.
For purposes of Code § 19.2-295.1, we find that the
documents in question here constitute "records of conviction"
because they are recorded evidence that the court convicted
appellant for the crimes charged. The documents were properly
admitted because the attached certifications by the clerk of the
court and a judge of that court sufficiently authenticate them.
The certifications by the clerk and the judge verify not only the
accuracy of the photocopies, as appellant contends, but also
reflect the state of Maryland's determination "that [the]
originals together, constitute the record of the proceedings" in
the case, reflecting the convictions obtained. (Emphasis added.)
The evidence contained in these properly admitted documents,
- 5 -
viewed in the aggregate, was sufficient to establish the prior
convictions.
III.
Appellant also contends that the best evidence rule bars the
admission of the documents in question and limits the proof of
conviction to the court's final order. However, the "best
evidence rule" has no applicability to this case. In Virginia,
the best evidence rule provides that "where the contents of a
writing are desired to be proved, the writing [the primary
evidence] itself must be produced or its absence sufficiently
accounted for before other evidence of its contents can be
admitted." Butts v. Commonwealth, 145 Va. 800, 816, 133 S.E.
764, 769 (1926) (quoting 1 Greenleaf on Evidence 682 (16th ed.));
see also Myrick v. Commonwealth, 13 Va. App. 333, 339, 412 S.E.2d
176, 179 (1991); Randolph v. Commonwealth, 145 Va. 883, 889, 134
S.E. 544, 546 (1926); Bradshaw v. Commonwealth, 16 Va. App. 374,
379, 429 S.E.2d 881, 884 (1993).
A judgment is the determination by a court of
the rights of the parties, as those rights
presently exist, upon matters submitted to it
in an action or proceeding. A written order
or decree endorsed by the judge is but
evidence of what the court has decided.
Rollins v. Bazile, 205 Va. 613, 617, 139 S.E.2d 114, 117 (1964)
(quoting Haskins v. Haskins, 185 Va. 1001, 1012, 41 S.E.2d 25, 31
(1947) (emphasis added). See also Weatherman v. Commonwealth, 91
Va. 796, 798-99, 22 S.E. 349 (1895); Spicer v. Spicer, 192 Va.
105, 109, 63 S.E.2d 773, 776 (1951).
- 6 -
Here, the Commonwealth was not required to prove the
contents of a written order reflecting the fact of appellant's
conviction. Rather, it was required to prove the fact of the
conviction itself. As stated above, Code § 19.2-295.1 provides
limitations on the means by which the Commonwealth may establish
such proof. In no way, however, does it implicate the best
evidence rule by requiring proof of the contents of a conviction
order.
For the reasons set forth here, we affirm the decision of
the trial court.
Affirmed.
- 7 -