Reed v. Com.

• Decision Date: 15 December 1992
• Docket Number: No. 0516-91-2,0516-91-2
• Citation: 15 Va.App. 467,424 S.E.2d 718
• Court: Virginia Court of Appeals
• Parties: Ernest Linwood REED v. COMMONWEALTH of Virginia. Record

Page 718

424 S.E.2d 718

15 Va.App. 467

Ernest Linwood REED v. COMMONWEALTH of Virginia.

Record No. 0516-91-2.

Court of Appeals of Virginia.

Dec. 15, 1992.

R. Michael McKenney, Warsaw (James B. Gochenour, Montross, on brief), for appellant.

H. Elizabeth Shaffer, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

COLEMAN, Judge.

Ernest L. Reed was convicted, in a bench trial, of driving after having been adjudicated an habitual offender. We reverse Reed's conviction because the record fails to show Reed knew at the time he was driving that he had been declared an habitual offender and ordered not to operate a motor vehicle pursuant to Code § 46.2-355. An essential element of the offense of driving after having been declared an habitual offender is that the operator knew at the time he operated a motor vehicle in Virginia that he was doing so after he had been declared an habitual offender and ordered not to drive. Accordingly, because the Commonwealth's evidence failed to prove an essential element of the offense, we reverse Reed's conviction and we remand the case to the trial court.

On December 6, 1990, Andrew Packet, the Chief of Police for the town of Warsaw, observed a blue wrecker twice swerve across the center line of Route 360. The wrecker was being operated by Ernest L. Reed. Officer Packet, who had been alerted that the wrecker possibly was being operated by an intoxicated driver, stopped the vehicle to see Reed's operator's license. Reed responded that he did not have his license with him. When Officer Packet radioed to check Reed's driving status, he learned that Reed had been declared an habitual offender. Packet arrested Reed and charged him with driving after having been declared an habitual offender.

At Reed's bench trial, the Commonwealth's evidence consisted of Officer Packet's testimony about the events leading to Reed's arrest and an order from the Circuit Court of Richmond County dated April 23, 1990, declaring Reed to be an habitual offender. That order stated that a Show Cause Order had been issued against Reed, that the order had been "duly executed" on him, that Reed had, "after due and proper notice failed to answer or otherwise plead to the said Information and Show Cause Order," that the "Information, transcript and [DMV] abstract" had been "a part of the Show Cause Order executed on" Reed, that Reed was to be served in person with a certified copy of the order and that a copy was to be mailed to Reed at "Rt. 1, Box 367, Warsaw, Virginia 22572." A return of service on the order states that personal service was attempted on Reed at his "usual place of abode," but that Reed was not found there and "service was effected on William S. Reed." Defense counsel conceded during argument before the trial judge that service of the civil habitual offender order was made on Reed's father, "James or William," that the "show cause [order] was actually served on [Reed]," and that "[Reed] was given notice [by the show cause order] that he was going to be declared an habitual offender." Based on this evidence, the trial judge found that Reed had notice that he had been declared an habitual offender. The trial judge found Reed guilty of driving after having been adjudicated an habitual offender in violation of Code § 46.2-357. The judge sentenced Reed to one year imprisonment.

First, we address Reed's threshold argument that the trial judge erred by relying upon evidence that was not introduced, namely the show cause order and return of service of process upon Reed from the civil habitual offender adjudication, in order to find that Reed had actual notice of the civil habitual offender proceeding against him. Reed argues that the trial judge could not have found that Reed had notice that he had been declared an habitual offender unless the judge had judicially noticed the show cause order, its contents, and the return of service and then held that, based upon the actual notice of the civil proceeding, Reed had constructive notice that he had been declared an habitual offender. Reed argues that, because neither the show cause order nor return of service was introduced as evidence in the habitual offender prosecution, the trial judge could not properly have considered them as evidence, and the Commonwealth has otherwise failed to prove that, in the civil proceeding, Reed had constructive notice, assuming actual notice is not required, that he had been declared an habitual offender.

We reject Reed's assertion that the trial judge must have taken judicial notice of the civil adjudication proceeding in order to have found that Reed had constructive knowledge that he had been declared an habitual offender. The Richmond County Circuit Court order declaring Reed to be an habitual offender was admitted in evidence by agreement of counsel. Upon the record before us, it is reasonable to conclude that the trial judge relied upon the habitual offender order and its contents, not the show cause order and return of service, to find that Reed had notice of the habitual offender adjudication. The habitual offender adjudication order recited the findings and legal holdings of the trial judge in the civil adjudication, including the finding that the show cause order which gave Reed notice of the show cause proceeding had been "duly executed" on Reed. The factual findings and conclusions of law contained in the civil adjudication order were sufficient to prove that Reed had been served with the show cause order and that he had notice that a civil proceeding was to be conducted for the purpose of declaring him to be an habitual offender. Therefore, we reject Reed's contention that the trial judge did not have evidence to support the finding that Reed had actual notice of the show cause proceeding and, thus, had constructive knowledge that he may have been declared to be an habitual offender in that proceeding.

We turn to the dispositive question of whether the fact that Reed had constructive notice, either by having been served with the show cause order for the civil habitual offender proceeding or the substituted service of the habitual offender adjudication order upon Reed's father, was sufficient for purposes of Code § 46.2-357 to convict Reed for driving after having been declared an habitual offender. The question is whether actual personal notice that one has been declared an habitual offender and ordered not to drive is required in order to obtain a criminal conviction under Code § 46.2-357.

Code § 46.2-357 provides that "[i]t shall be unlawful for any person to drive any motor vehicle ... on the highways of the Commonwealth while the order of the court prohibiting such operation remains in effect." (emphasis added). Code § 46.2-355 provides that in order to declare a person to be an habitual offender, the court shall

by appropriate order direct the person not to operate a motor vehicle on the highways in the Commonwealth and to surrender to the court all licenses or permits to drive a motor vehicle on the highways in the Commonwealth for disposal in the manner provided in § 46.2-398.... Unless it appears from the record of the case that the person was present at the hearing in which the court found him to be an habitual offender, the clerk shall cause to be mailed to the person at his last known address appearing in the records of the case a copy of the habitual offender order.

(emphasis added).

The courts of some states have held that under their statutes making it an offense for an habitual offender to drive, the crime is one of strict liability, not requiring proof of scienter or mens rea as an element. See, e.g., State v. Jones, 231 Kan. 366, 644 P.2d 464 (1982); State v. Grotzky, ...