Bishop v. Com.
| Decision Date | 23 January 2007 |
| Docket Number | Record No. 1382-05-1. |
| Citation | 639 S.E.2d 683,49 Va. App. 251 |
| Court | Virginia Court of Appeals |
| Parties | Mark Dywayne BISHOP v. COMMONWEALTH of Virginia. |
Richard E. Hill, Jr., for appellant.
Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General; Richard B. Smith, Senior Assistant Attorney General, on brief), for appellee.
Present: KELSEY and McCLANAHAN, JJ., and WILLIS, Senior Judge.
The trial court convicted Mark Dywayne Bishop of driving after having been declared an habitual offender in violation of Code § 46.2-357(A) and obstruction of justice in violation of Code § 18.2-460(C). On appeal, Bishop claims (i) the habitual offender conviction should be reversed for insufficient evidence, and (ii) the obstruction of justice conviction should be vacated because the statute invites an unconstitutionally broad scope of prosecutorial discretion. Finding neither argument persuasive, we affirm.
Under settled principles, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).
In December 2004, two police officers arrived at Bishop's home with a warrant for his arrest. Bishop was not there. The officers parked at a nearby location where they would not likely be seen and waited for Bishop to arrive. Shortly thereafter, the officers observed Bishop drive a vehicle down the public road and park in his driveway. He was alone. The officers confronted him in the driveway and asked if he was Mark Bishop. He said he was not. Believing him to be Bishop, the officers told him he was under arrest. Bishop resisted arrest and fought the officers, leaving one of the officers with abrasions and fractured ribs.
At trial, the Commonwealth introduced into evidence Bishop's DMV transcript. Prior to his most recent arrest, his driving record shows:
• a 1994 conviction for operating an uninsured vehicle
• three 1996 court-ordered license suspensions
• two 1996 convictions for driving under a revoked or suspended license
• two 1996 court-ordered revocations of his license
• a 1996 improper driving conviction
• a 1997 court-ordered license suspension
• a 1997 conviction for driving under a revoked or suspended license
• a 1997 DMV administrative declaration of habitual offender status
• a 1997 DMV administrative license revocation
• a 1999 court-ordered license suspension
• three 2000 court-ordered license suspensions
• six 2001 court-ordered license suspensions
• two 2001 convictions for driving under a revoked or suspended license — one of the two offenses occurring on March 10, 2001
• several 2001 convictions for operating an uninspected vehicle, improper registration or license plates, and operating an uninsured vehicle — all offenses occurring on March 10, 2001
• a 2002 court-ordered license suspension
• two 2003 court-ordered license suspensions
• a 2003 conviction for driving under a revoked or suspended license, and
• a 2004 court-ordered license suspension.
Taking the stand in his own defense, Bishop did not challenge any aspect of the DMV transcript. He did not mention much less contest, his habitual offender declaration or his personal knowledge of that status at the time of the offense. Nor did he dispute the multitude of traffic offenses and license suspensions upon which DMV predicated its administrative declaration of Bishop as an habitual offender. Instead, Bishop testified that his girlfriend drove the vehicle while he sat in the passenger seat. After she pulled into a private driveway and walked away from the car, Bishop stated, he moved into the driver's seat. On cross-examination, Bishop admitted to two prior felonies.
At the close of the evidence, Bishop's counsel challenged the habitual offender charge on only one very specific ground:
First of all, as to the habitual offender. If you look at the driving record I believe it will tell you that the revocation which occurred April 28th, 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 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 . . . . 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 here for — a conviction of habitual offender.
On the obstruction of justice charge, Bishop's counsel argued that the similarities between Code § 18.2-460(C)'s felony provision and § 18.2-460(B)'s misdemeanor provision gave the prosecution unconstitutionally broad discretion. The trial court rejected Bishop's arguments and convicted him of the misdemeanor habitual offender charge and the felony obstruction of justice charge.
On appeal, Bishop does not disavow his concession at trial that he received the notice indicated by the entry on the DMV transcript. He admits on appeal that the transcript shows that "Appellant received notification from law enforcement on March 10, 2001." Appellant's Brief at 7. Bishop simply disagrees that the notice he received was that he "was or had been declared an habitual offender." Id. Just as he argued at trial, Bishop argues on appeal that the notice merely reflected that the habitual offender determination process had begun. He points to two entries on the transcript, "the interpretation of which is the critical issue here." Id.
We agree with Bishop's framing of the issue on appeal but disagree with his interpretation of the DMV transcript. The disputed entries, as they appear on the transcript, read:
Bishop's driving record is a creature of statute, required by Code § 46.2-208(H) to be maintained by DMV. "The statutory scheme for the enforcement of the habitual offender act" specifically relies upon DMV driving records as the principal database combining administrative and judicial records. Smoot v. Commonwealth, 18 Va. App. 562, 565, 445 S.E.2d 688, 690 (1994). DMV is "presumed to have kept accurate records" and to have done so consistent with its "statutory duties." Id. (quoting Commonwealth v. Dalton, 11 Va.App. 620, 623, 400 S.E.2d 801, 803 (1991)). Bishop's DMV transcript, therefore, must be interpreted in conformity with the statutes governing it.
Based upon his numerous traffic violations and license suspensions, DMV issued an administrative order determining Bishop to be an habitual offender in 1997. "Upon such determination, the Commissioner shall immediately cause the Department's records to indicate that the person has been determined to be an habitual offender . . . ." Code § 46.2-352(A) (repealed 1999) (emphasis added). Consistent with that requirement, Bishop's DMV transcript states: "DETERMINED ON: 1997/04/23 HABITUAL OFFENDER BY DMV."1 Five days later, the transcript confirms, DMV issued its revocation order in conformity with the "HO DETERMINATION PROCESS" — just as former Code § 46.2-352(A) required.
Bishop concedes he received the notice from "law enforcement" in 2001. The DMV transcript indicates law enforcement provided this notice on March 10, 2001 — the same day Bishop committed four driving offenses for which he was later convicted. The notice Bishop received could not have been, as he claims, notice of the possibility of a future habitual offender determination. He had already been determined to be an habitual offender years earlier. The trial court, therefore, had ample reason to reject the only hypothesis of innocence asserted by Bishop at trial: that the 2001 notice he received from "law enforcement" preceded any determination of his status as an habitual offender.2
Bishop complains that this reasoning conflicts with Reed v. Commonwealth, 15 Va. App. 467, 424 S.E.2d 718 (1992). We disagree. Reed involved a judicial, not an administrative, declaration of habitual offender status. The defendant in Reed received a show cause order commanding him to appear at a hearing to address whether he should be judicially declared an habitual offender. When the defendant failed to appear, the trial court declared him an habitual offender in his absence and served a copy of the declaration order on the defendant's father. Reed held that the pre-declaration notice received by the defendant warned only of the possibility of a future declaration, not of a then-existing declaration. Reed also found the post-declaration notice inadequate, as it was served only on the defendant's father but not on the defendant. Even if service on the defendant's father constituted "constructive notice," Reed reasoned, the habitual offender statute requires "actual notice" of the declaration. Id. at 473, 424 S.E.2d at 721.3
No aspect of Reed's rea...
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