James v. Com.

Decision Date02 August 1994
Docket NumberNo. 2173-92-4,2173-92-4
Citation446 S.E.2d 900,18 Va.App. 746
PartiesEdward Tyler JAMES v. COMMONWEALTH of Virginia. Record
CourtVirginia Court of Appeals

H. Elizabeth Shaffer, Asst. Atty. Gen. (Stephen D. Rosenthal, Atty. Gen., on brief), for appellee.

Before COLEMAN, FITZPATRICK, JJ., and DUFF, Senior Judge.

FITZPATRICK, Judge.

Edward Tyler James (appellant) appeals his bench trial conviction for driving under the influence of alcohol (DUI), second offense within five years, in violation of Code § 18.2-266. On appeal, he argues that the trial court erred by: (1) admitting into evidence appellant's prior DUI conviction which failed to show affirmatively that his plea of guilty was made knowingly and voluntarily; (2) admitting into evidence the results of a breathalyzer test; (3) limiting his cross-examination of the arresting officer's subjective intent; and (4) finding that the evidence was sufficient to convict. Finding no error, we affirm the conviction.

BACKGROUND

On December 21, 1991, at approximately 4:45 p.m., Trooper Dunlap of the Virginia State Police stopped appellant, who was driving a pickup truck on Route 287 in Loudoun County, after pacing appellant's vehicle at sixty-eight miles per hour in a fifty-five miles per hour zone. He also observed it tailgate another car and weave across the center line of the road several times.

Appellant had "very slurred" speech and a strong odor of alcohol about his person. Trooper Dunlap asked appellant to perform several field sobriety tests, which he failed. Appellant was arrested for driving under the influence of alcohol and advised of the implied consent law at the Loudoun County Jail. He requested and was given a breath test. The results of the breath alcohol test showed a blood alcohol concentration of .17 percent.

At trial, appellant objected to the admission into evidence of his 1989 DUI conviction because the record failed to show affirmatively that his guilty plea was given intelligently and voluntarily. The certified copy of appellant's 1989 conviction shows that he was represented by counsel at trial and that he pled guilty to the amended (lesser included) offense of DUI--first offense.

Appellant also objected to the admission of the certificate of breath analysis because Trooper Dunlap allegedly failed to comply with certain procedures prescribed in the "Breath Alcohol Operator Training Manual." In addition, appellant attempted to introduce evidence of Trooper Dunlap's subjective intent and state of mind on the issues of probable cause for the initial stop and arrest, and the timing of taking appellant into custody. The trial court sustained the Commonwealth's relevancy objection to this line of questioning.

ADMISSIBILITY OF PRIOR DUI CONVICTION

Appellant argues that the trial court erred in admitting evidence of his prior conviction for DUI because the Commonwealth failed to prove that he knowingly and intelligently waived his constitutional rights regarding his prior plea of guilty. See Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969). We disagree.

Code § 18.2-270 establishes the penalties for violations of Code § 18.2-266 and provides for the enhanced punishment of second-time DUI offenders. The Supreme Court of the United States has recently reaffirmed the use of prior convictions for sentencing enhancement purposes, holding as follows:

[An] uncounseled conviction valid under [Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) ] may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common place in state criminal laws, do not change the penalty imposed for the earlier conviction.

Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (overruling Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980)). Further, Nichols held that due process does not require "a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime." Id. 511 U.S. at ----, 114 S.Ct. at 1928.

Appellant challenges the admissibility of his 1989 conviction solely because the warrant form failed to indicate that his plea of guilty was knowing and voluntary. Boykin requires that before a trial court may accept a criminal defendant's guilty plea there must be an affirmative showing that the plea was intelligently and voluntarily made. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711. On direct appeal, no waiver of constitutional rights will be presumed and a silent record cannot be considered a waiver. See generally McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

The due process requirements of Boykin have been restated in Rule 3A:8(b) of the Rules of the Supreme Court of Virginia, and on direct appeal the failure to comply fully therewith constitutes reversible error. 1 In Graham v. Commonwealth, 11 Va.App. 133, 397 S.E.2d 270 (1990), we held that "the record requires an affirmative showing that the waiver embodied in the plea of guilty is intelligently, voluntarily, and knowingly made. In the absence of such a showing, the trial court may, and is in fact required, to reject the plea." Id. at 139, 397 S.E.2d at 273-74. See also Gardner v. Warden, 222 Va. 491, 494, 281 S.E.2d 876, 878 (1981).

Generally, a judgment in a criminal case where the defendant was represented by counsel may not be attacked collaterally in another criminal proceeding. Morse v. Commonwealth, 6 Va.App. 466, 468, 369 S.E.2d 863, 864 (1988) (citing Eagle, Star and British Dominions Ins. Co. v. Heller, 149 Va. 82, 100, 140 S.E. 314, 319 (1927)).

It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.... It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.... Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause.

Mabry v. Johnson, 467 U.S. 504, 508-09, 104 S.Ct. 2543, 2546-47, 81 L.Ed.2d 437 (1984) (footnote and citations omitted) (emphasis added).

The ban on collateral attacks of underlying offenses is based on the principle that "every act of a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary appears." Parke v. Raley, 506 U.S. ----, ----, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992) (citing Voorhees v. Jackson, 35 U.S. (10 Pet.) 449, 472, 9 L.Ed. 490 (1836)). We are guided in the disposition of this case by the United States Supreme Court's analysis in Parke, wherein the Court held:

On collateral review, we think it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for the purposes of sentence enhancement was validly obtained.... Our precedents make clear ... 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.

Parke, 506 U.S. at ----, 113 S.Ct. at 524 (emphasis added). There is no allegation of governmental misconduct in this case, and appellant concedes that he was represented by counsel in the 1989 criminal proceeding. 2 Appellant's only evidence for his collateral attack was the lack of an affirmative record establishing that the general district court had engaged in a Boykin colloquy prior to accepting appellant's guilty plea.

The Commonwealth had the burden of going forward with evidence and always retains the burden of persuasion to prove that the predicate convictions relied upon were valid under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). See McGhee v. Commonwealth, 219 Va. 560, 561-62, 248 S.E.2d 808, 810 (1978); Commonwealth v. Ellett, 174 Va. 403, 413, 4 S.E.2d 762, 766 (1939). During trial, appellant admitted he had been represented by 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. See Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319 (1967); Nichols, 511 U.S. at ----, 114 S.Ct. at 1927; Scott, 440 U.S. at 373, 99 S.Ct. at 1161. "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." State v. Moeller, 511 N.W.2d 803, 809 (S.D.1994). A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient. Accordingly, we agree with the trial court that appellant failed to rebut the presumption of regularity that attached to his counseled final 1989 conviction.

counsel at his 1989 guilty plea to DUI and that he had discussed at least "some of" the case with his counsel. 3

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