McClure v. Com., 802035

Decision Date16 October 1981
Docket NumberNo. 802035,802035
Citation222 Va. 690,283 S.E.2d 224
PartiesRobert William McCLURE v. COMMONWEALTH of Virginia. Record
CourtVirginia Supreme Court

James W. Haskins, Martinsville (Young, Kiser, Haskins, Mann, Gregory & Young, Martinsville, on brief), for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., Richard B. Smith, Asst. Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

STEPHENSON, Justice.

The issue in this appeal is whether a person can be imprisoned for violating the Virginia Habitual Offender Act when his classification as an habitual offender was based, in part, on uncounseled misdemeanor convictions. This issue was decided in Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447, cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 227 (1975). However, we have been asked to reexamine Whorley in light of the decision of the United States Supreme Court in Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980).

Robert William McClure was convicted in North Carolina of driving a motor vehicle while under the influence of intoxicants in November, 1977. He was not represented by counsel and did not waive his right to counsel. In October, 1978, in the City of Martinsville, McClure was convicted of driving a motor vehicle after his operator's license had been revoked. Again, he did not have an attorney and did not waive his right to one. McClure was convicted of the same charge in April, 1979, in Henry County. He was represented by counsel on that offense.

As a result of these three convictions, a civil proceeding was instituted in the Circuit Court of Henry County, pursuant to Code § 46.1-387.4, to have McClure adjudged an habitual offender as defined by Code § 46.1-387.2. After hearing the evidence, including McClure's admission that he had been convicted of the three traffic offenses, the court found that he was an habitual offender. McClure's driver's license was revoked for ten years, and the court advised him that if he were thereafter convicted of operating a motor vehicle in the Commonwealth he would be guilty of a felony and could be sentenced to not less than one year, nor more than five years, in the penitentiary.

On September 29, 1980, McClure was found guilty of feloniously operating a motor vehicle after having been declared an habitual offender, and he was sentenced to serve one year in the penitentiary. It is from this conviction that McClure appeals.

McClure contends that his felony conviction violates his right to counsel as guaranteed by the Sixth Amendment to the Federal Constitution because his classification as an habitual offender was predicated upon his uncounseled misdemeanor convictions. To support this contention, he relies on Baldasar, which, he asserts, had the effect of overruling Whorley.

In Baldasar, the defendant challenged his conviction under an Illinois enhanced punishment statute. Under that statute petit larceny is a misdemeanor punishable by not more than a year of imprisonment. However, a second conviction for the same offense may be punished as a felony with a prison term of one to three years.

Baldasar was convicted of petit larceny in May, 1975. He was not represented by counsel and did not waive his right to counsel. Subsequently, he was again charged with petit larceny. The State introduced evidence of his prior conviction, and Baldasar was convicted of a felony and sentenced to prison for one to three years.

The Supreme Court, in a per curiam opinion, reversed Baldasar's conviction. Its reasoning was set out in three concurring opinions, none of which was supported by a majority of the Court. Justice Stewart concluded that Baldasar's conviction could not stand because he "was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense." Baldasar, 446 U.S. at 224, 100 S.Ct. at 1587. (Stewart, J. concurring). Justice Marshall stated that "a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeat-offender statute." Id. at 228, 100 S.Ct. at 1589. (Marshall, J. concurring).

We feel that nothing in Baldasar mandates a reversal of the position we took in Whorley. In Whorley, we recognized that the "direct or...

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7 cases
  • Sargent v. Com.
    • United States
    • Virginia Court of Appeals
    • 6 Octubre 1987
    ...court overruled both the motion to suppress and the motion to set aside the verdict, relying upon the authority of McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224 (1981). Sargent was convicted as charged and sentenced. The predominant issue in this case is whether the two misdemeanor c......
  • Morse v. Com., 0043-87-3
    • United States
    • Virginia Court of Appeals
    • 21 Junio 1988
    ...habitual offender because no jurisdiction had attached during the defendant's prior habitual offender hearing. In McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224 (1981), the court considered a collateral attack on an habitual offender's underlying convictions. The defendant claimed tha......
  • Litton v. Williams
    • United States
    • U.S. District Court — Western District of Virginia
    • 13 Julio 1982
    ...Whorley v. Brillhart, 373 F.Supp. 83 (E.D.Va.1974); Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447 (1975); McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224, 222 V.R.R. 629 (1981). 4 This court is aware of the fact that the decision in Mays v. Harris, 369 F.Supp. 1348 (W.D. Va.1973......
  • Com. v. Holtz, 0825-89-4
    • United States
    • Virginia Court of Appeals
    • 20 Agosto 1991
    ...(Del.Super.Ct.1981). Holtz's challenge does not go to the jurisdiction of the court which entered the conviction. McClure v. Commonwealth, 222 Va. 690, 283 S.E.2d 224 (1981); Whorley v. Commonwealth, 215 Va. 740, 214 S.E.2d 447, cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975......
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