COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank Argued at Alexandria, Virginia
RICHARD BAYLOR MORIARTY MEMORANDUM OPINION * BY v. Record No. 1444-99-4 JUDGE ROBERT P. FRANK MAY 16, 2000 COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Joanne F. Alper, Judge
Steven L. Duckett, Jr. (MacDowell & Associates, P.C., on brief), for appellant.
Jeffrey A. Spencer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Richard Baylor Moriarty (appellant) appeals the circuit
court’s denial of his appeal from the determination by the
Commissioner of the Department of Motor Vehicles that he was an
habitual offender under Code § 46.2-351. Appellant contends that
the circuit court erred in admitting the record of a prior
conviction, which appellant alleges violated Code § 19.2-307. 1 We
disagree and affirm the circuit court's ruling.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 Section 19.2-307 sets forth the required contents of a criminal judgment order as follows: "The judgment order shall set forth the plea, the verdict or findings and the adjudication and sentence, whether or not the case was tried by jury, and if not, whether the consent of the accused was concurred in by the I. BACKGROUND
The Commissioner's determination that appellant was an
habitual offender was based upon three convictions for driving
while under the influence. Appellant challenges only one of the
predicate offenses, a conviction from the Arlington County General
District Court dated March 31, 1998. For the March 31, 1998
conviction, the general district court judge checked the box on
the printed warrant form showing that appellant pled guilty;
sentenced appellant to twelve months in jail, 10 months of which
was suspended; and fined appellant $1,500, $1,000 of which was
suspended. The general district court judge also suspended
appellant's license indefinitely. However, on the form, there was
no finding of guilt.
In the instant case, a transcript from the Department of
Motor Vehicles that showed that appellant was convicted of driving
while under the influence, third offense, on March 31, 1998 in
Arlington County General District Court was introduced and
received as Commonwealth's Exhibit Number One without objection.
court and the attorney for the Commonwealth. If the accused is found not guilty, or for any other reason is entitled to be discharged, judgment shall be entered accordingly. If an accused is tried at one time for two or more offenses, the court may enter one judgment order respecting all such offenses. The final judgment order shall be entered on a form promulgated by the Supreme Court." Code § 19.2-307.
- 2 - II. ANALYSIS
Appellant argues that because there was no specific finding
of guilt, the March 31, 1998 conviction cannot be a predicate
offense for an habitual offender determination. We disagree.
Appellant relies upon Bellinger v. Commonwealth, 23 Va. App.
471, 477 S.E.2d 779 (1996), and McBride v. Commonwealth, 24 Va.
App. 30, 480 S.E.2d 126 (1997). We find that Bellinger and
McBride are inapposite.
In Bellinger, the defendant was tried for voluntary
manslaughter. See Bellinger, 23 Va. App. at 473, 477 S.E.2d at
779. The Commonwealth introduced three disposition records for
bad check offenses in the sentencing phase of the trial. See id.
On each of the warrant forms for the bad check offenses, "NO. JAIL
19.2-160," was stamped at the place designated for "'final
disposition.'" Id. at 474, 477 S.E.2d at 780. The record
contained "no other notation of disposition and no formal order of
conviction." Id. We found that the documents submitted as orders
of conviction for the bad check offenses "failed, in every
respect, to satisfy" the requirement of Code § 19.2-307. Id. at
474-75, 477 S.E.2d at 780.
In McBride, the defendant appealed his conviction of second
offense of driving while under the influence in violation of Code
§ 18.2-266. See McBride, 24 Va. App. at 32, 480 S.E.2d at 127.
The issue on appeal was whether the Commonwealth proved the first
offense. See id. at 33, 480 S.E.2d at 127. The Commonwealth
- 3 - attempted to prove the prior offense by offering a certified copy
of a record from Roanoke City General District Court. See id. at
32, 480 S.E.2d at 127. The record was a warrant of arrest
charging the defendant with driving under the influence. See id.
The second page of the warrant contained a printed form that was
signed by the trial judge and indicated appellant had pled not
guilty. See id. It also indicated that appellant was sentenced
to thirty days in jail, fined $300, and received a suspension of
his operator's license for six months. See id. However, the form
did not indicate that the appellant was found guilty of the
charge. See id. at 32-33, 480 S.E.2d at 127. We held the
evidence was insufficient to establish a prior conviction because
the warrant did not indicate that appellant was convicted under
Code § 18.2-266, and the Commonwealth offered no other competent
evidence. See id. at 34, 480 S.E.2d at 128.
However, this case differs from Bellinger and McBride in that
the transcript of appellant's driving record from the Department
of Motor Vehicles creates a prima facie case of the conviction.
The Commonwealth in Bellinger and McBride had no such prima facie
presumption.
Code § 46.2-351, in effect at the time of appellant's
habitual offender hearing, stated:
The transcript or abstract of convictions which bring the person within the definition of an habitual offender may be admitted as evidence as provided in § 46.2-215 and shall be prima facie evidence that the person named
- 4 - therein was duly convicted, or held not innocent in the case of a juvenile, by the court wherein the conviction or holding was made, of each offense shown by the transcript or abstract. If the person denies any of the facts as stated therein, he shall have the burden of proving that the fact is untrue.
We find that Dicker v. Commonwealth, 22 Va. App. 658, 472
S.E.2d 655 (1996), controls this case. As in the instant case,
the Commonwealth submitted the transcript from the Department of
Motor Vehicles showing the conviction in question. See Dicker, 22
Va. App. at 660, 472 S.E.2d at 656. "In rebuttal, Dicker
introduced a certified copy of a pre-printed arrest warrant, which
contained the April 19, 1994 conviction order." Id. at 660, 472
S.E.2d at 656-57. He argued that the order was void because the
district court failed to check the appropriate boxes indicating
his plea and whether he was found guilty, not guilty, or guilty of
a lesser included offense. See id. "The trial court ruled that
Dicker had failed to rebut the Commonwealth's prima facie proof of
the requisite convictions . . . ." Id. We upheld the habitual
offender determination and agreed with the trial court that the
appellant had not rebutted the statutory presumption. See id. at
662, 472 S.E.2d at 657. We cited Moffitt v. Commonwealth, 16 Va.
App.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Frank Argued at Alexandria, Virginia
RICHARD BAYLOR MORIARTY MEMORANDUM OPINION * BY v. Record No. 1444-99-4 JUDGE ROBERT P. FRANK MAY 16, 2000 COMMONWEALTH OF VIRGINIA, DEPARTMENT OF MOTOR VEHICLES
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY Joanne F. Alper, Judge
Steven L. Duckett, Jr. (MacDowell & Associates, P.C., on brief), for appellant.
Jeffrey A. Spencer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Richard Baylor Moriarty (appellant) appeals the circuit
court’s denial of his appeal from the determination by the
Commissioner of the Department of Motor Vehicles that he was an
habitual offender under Code § 46.2-351. Appellant contends that
the circuit court erred in admitting the record of a prior
conviction, which appellant alleges violated Code § 19.2-307. 1 We
disagree and affirm the circuit court's ruling.
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 Section 19.2-307 sets forth the required contents of a criminal judgment order as follows: "The judgment order shall set forth the plea, the verdict or findings and the adjudication and sentence, whether or not the case was tried by jury, and if not, whether the consent of the accused was concurred in by the I. BACKGROUND
The Commissioner's determination that appellant was an
habitual offender was based upon three convictions for driving
while under the influence. Appellant challenges only one of the
predicate offenses, a conviction from the Arlington County General
District Court dated March 31, 1998. For the March 31, 1998
conviction, the general district court judge checked the box on
the printed warrant form showing that appellant pled guilty;
sentenced appellant to twelve months in jail, 10 months of which
was suspended; and fined appellant $1,500, $1,000 of which was
suspended. The general district court judge also suspended
appellant's license indefinitely. However, on the form, there was
no finding of guilt.
In the instant case, a transcript from the Department of
Motor Vehicles that showed that appellant was convicted of driving
while under the influence, third offense, on March 31, 1998 in
Arlington County General District Court was introduced and
received as Commonwealth's Exhibit Number One without objection.
court and the attorney for the Commonwealth. If the accused is found not guilty, or for any other reason is entitled to be discharged, judgment shall be entered accordingly. If an accused is tried at one time for two or more offenses, the court may enter one judgment order respecting all such offenses. The final judgment order shall be entered on a form promulgated by the Supreme Court." Code § 19.2-307.
- 2 - II. ANALYSIS
Appellant argues that because there was no specific finding
of guilt, the March 31, 1998 conviction cannot be a predicate
offense for an habitual offender determination. We disagree.
Appellant relies upon Bellinger v. Commonwealth, 23 Va. App.
471, 477 S.E.2d 779 (1996), and McBride v. Commonwealth, 24 Va.
App. 30, 480 S.E.2d 126 (1997). We find that Bellinger and
McBride are inapposite.
In Bellinger, the defendant was tried for voluntary
manslaughter. See Bellinger, 23 Va. App. at 473, 477 S.E.2d at
779. The Commonwealth introduced three disposition records for
bad check offenses in the sentencing phase of the trial. See id.
On each of the warrant forms for the bad check offenses, "NO. JAIL
19.2-160," was stamped at the place designated for "'final
disposition.'" Id. at 474, 477 S.E.2d at 780. The record
contained "no other notation of disposition and no formal order of
conviction." Id. We found that the documents submitted as orders
of conviction for the bad check offenses "failed, in every
respect, to satisfy" the requirement of Code § 19.2-307. Id. at
474-75, 477 S.E.2d at 780.
In McBride, the defendant appealed his conviction of second
offense of driving while under the influence in violation of Code
§ 18.2-266. See McBride, 24 Va. App. at 32, 480 S.E.2d at 127.
The issue on appeal was whether the Commonwealth proved the first
offense. See id. at 33, 480 S.E.2d at 127. The Commonwealth
- 3 - attempted to prove the prior offense by offering a certified copy
of a record from Roanoke City General District Court. See id. at
32, 480 S.E.2d at 127. The record was a warrant of arrest
charging the defendant with driving under the influence. See id.
The second page of the warrant contained a printed form that was
signed by the trial judge and indicated appellant had pled not
guilty. See id. It also indicated that appellant was sentenced
to thirty days in jail, fined $300, and received a suspension of
his operator's license for six months. See id. However, the form
did not indicate that the appellant was found guilty of the
charge. See id. at 32-33, 480 S.E.2d at 127. We held the
evidence was insufficient to establish a prior conviction because
the warrant did not indicate that appellant was convicted under
Code § 18.2-266, and the Commonwealth offered no other competent
evidence. See id. at 34, 480 S.E.2d at 128.
However, this case differs from Bellinger and McBride in that
the transcript of appellant's driving record from the Department
of Motor Vehicles creates a prima facie case of the conviction.
The Commonwealth in Bellinger and McBride had no such prima facie
presumption.
Code § 46.2-351, in effect at the time of appellant's
habitual offender hearing, stated:
The transcript or abstract of convictions which bring the person within the definition of an habitual offender may be admitted as evidence as provided in § 46.2-215 and shall be prima facie evidence that the person named
- 4 - therein was duly convicted, or held not innocent in the case of a juvenile, by the court wherein the conviction or holding was made, of each offense shown by the transcript or abstract. If the person denies any of the facts as stated therein, he shall have the burden of proving that the fact is untrue.
We find that Dicker v. Commonwealth, 22 Va. App. 658, 472
S.E.2d 655 (1996), controls this case. As in the instant case,
the Commonwealth submitted the transcript from the Department of
Motor Vehicles showing the conviction in question. See Dicker, 22
Va. App. at 660, 472 S.E.2d at 656. "In rebuttal, Dicker
introduced a certified copy of a pre-printed arrest warrant, which
contained the April 19, 1994 conviction order." Id. at 660, 472
S.E.2d at 656-57. He argued that the order was void because the
district court failed to check the appropriate boxes indicating
his plea and whether he was found guilty, not guilty, or guilty of
a lesser included offense. See id. "The trial court ruled that
Dicker had failed to rebut the Commonwealth's prima facie proof of
the requisite convictions . . . ." Id. We upheld the habitual
offender determination and agreed with the trial court that the
appellant had not rebutted the statutory presumption. See id. at
662, 472 S.E.2d at 657. We cited Moffitt v. Commonwealth, 16 Va.
App. 983, 434 S.E.2d 684 (1993), in which we held:
Habitual offender proceedings are civil in nature, not criminal. Therefore, the Commonwealth has the burden of proving by a preponderance of the evidence that the respondent had obtained the three requisite driving convictions to be an habitual offender . . . . [T]he Commonwealth
- 5 - established a prima facie presumption that it was a valid conviction by introducing the certified DMV transcript . . . . The prima facie presumption that the convictions were valid necessarily encompasses that the elements of the charges were proven . . . . Once the Commonwealth has established a prima facie case, it is entitled to judgment, unless the respondent goes forward with evidence that refutes an element of the Commonwealth's case or rebuts the prima facie presumption.
Id. at 986, 434 S.E.2d at 687 (citations omitted).
Dicker held that, while the April 19, 1994 order failed in
several respects to corroborate the transcript from the Department
of Motor Vehicles, it did not contradict the transcript. See
Dicker, 22 Va. App. at 662, 472 S.E.2d at 657.
On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom. See Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). The judgment of a trial
court sitting without a jury will not be set aside unless plainly
wrong or without evidence to support it. See Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)
(citations omitted).
In this case, appellant did not rebut the prima facie case.
The Department of Motor Vehicles transcript was not inconsistent
with the actual warrant. Unlike McBride, appellant pled guilty to
the charge of driving while under the influence. "'[A] voluntary
and intelligent plea of guilty by an accused is, in reality, a
- 6 - self-supplied conviction authorizing imposition of the punishment
fixed by law.'" Dowell v. Commonwealth, 12 Va. App. 1145, 1148,
408 S.E.2d 263, 265 (1991) (citations omitted), aff'd on rehearing
en banc, 14 Va. App. 58, 414 S.E.2d 440 (1992). "'A plea of
guilty that is voluntarily and intelligently made by an accused is
a conviction and nothing is left but the imposition of the
prescribed punishment.'" Id. (quoting Miracle v. Peyton, 211 Va.
123, 126, 176 S.E.2d 339, 340 (1970)).
Since the warrant form noted appellant's plea of guilty, it
can be inferred that the appellant was convicted of the offense
even without such a finding by the district court. The district
court's sentence and indefinite suspension of the appellant's
operator's license is further consistent with conviction of
driving while under the influence, third or subsequent offense. 2
For these reasons, we affirm the ruling of the circuit court.
Affirmed.
2 Under Code § 18.2-271(c) and Code § 46.2-391(b), a conviction of driving while under the influence, third or subsequent offense, results in a suspension of the defendant's operator's license for an indefinite period of time. See Code §§ 18.2-271(c) and 46.2-391(b).
- 7 -