Opinion
Record No. 1397-92-4
March 15, 1994
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY BENJAMIN N. A. KENDRICK, JUDGE.
Larry Packett for appellant.
Richard B. Smith, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Nelson A. Canas (appellant) appeals his May 26, 1992 conviction for driving while under the influence of intoxicants (DUI), third offense. Code §§ 18.2-266, 18.2-270. On appeal, he argues that he cannot be subjected to the enhanced penalty provision of Code § 18.2-270 absent a clear showing that he was represented by counsel in the predicate DUI cases. Because we find that the Commonwealth's uncontroverted evidence established representation at the earlier proceeding, we affirm the conviction.
The facts of this case are not in dispute. Appellant was convicted for driving while intoxicated, third offense, and sentenced to twelve months in jail and fined $2,500. The Commonwealth submitted court documents which included certified conviction orders, a request for appointment of counsel and an order appointing counsel. These documents proved that appellant had two prior DUI convictions, one on April 19, 1988 and one on November 21, 1989, and that counsel had been appointed to represent appellant in the 1988 proceeding. Appellant objected to the Commonwealth's reliance on these documents to prove that he was represented by counsel at the April 19, 1988 proceeding. Appellant argued that the documents from the Arlington County General District Court did not reflect that appellant's court-appointed lawyer was actually present when appellant pled guilty to his first DUI offense, because there was no notation of such presence on the judgment form. The trial court overruled the objection, and the documents were admitted.
PREDICATE OFFENSES FOR ENHANCED PUNISHMENT
Code § 18.2-270 sets forth the penalties for violations of Code § 18.2-266 and provides for the enhanced punishment of second and third time offenders. In Virginia, it is well settled that the Commonwealth cannot use "two prior (albeit valid) uncounseled misdemeanor convictions . . . for enhancement purposes under Code § 18.2-270." Sargent v. Commonwealth, 5 Va. App. 143, 153, 360 S.E.2d 895, 901 (1987); see also Baldasar v. Illinois, 446 U.S. 222 (1980); Webb v. Commonwealth, ___ Va. App. ___, ___, 436 S.E.2d 284, 285 (1993). In this case, the Commonwealth's evidence proved that appellant had court-appointed counsel prior to pleading guilty.
At trial, defense counsel argued:
[T]here is no notation on the warrant that counsel appeared with him at that hearing. On 4/19/88 is when he pled guilty. So I would object on that ground with respect to the offense dated April 17, '88. There is insufficient proof that he engaged in a counsel [sic] plea at that time. And I think it is the Commonwealth's burden.
We agree with appellant that the Commonwealth had the burden of going forward with evidence and always retains the burden of persuasion to prove that the predicate offenses relied upon were counseled. See McGhee v. Commonwealth, 219 Va. 560, 562, 248 S.E.2d 808, 810 (1978); Sargent, 5 Va. App. at 148, 360 S.E.2d at 898. Appellant challenges only the 1988 conviction because the warrant form failed to indicate whether counsel was present when appellant pled guilty. The mere fact that the pre-printed spaces on the warrant to indicate the presence of defense counsel and prosecutor were not marked is not determinative of the issue, where the Commonwealth produces other competent evidence of representation. See United States v. Wilkinson, 926 F.2d 22 (1st Cir.), cert. denied, 111 S. Ct. 2813 (1991) (court relied in part on presentence report which indicated that defendant was represented by counsel).
In this case, the evidence proved that appellant was arrested for DUI on April 17, 1988. On April 18, 1988, appellant requested appointment of counsel, and the court immediately granted that request by appointing Ms. Soland to represent appellant at all stages of the proceeding until relieved or replaced by another lawyer. The following day, appellant pled guilty and was sentenced. There is no evidence in the record suggesting that defense counsel was not present, and appellant has not claimed that the plea was uncounseled.
"On appeal, the judgment of the trial court is presumed correct. The burden is on the party who alleges reversible error to show by the record that reversal is the remedy to which he is entitled." Johnson v. Commonwealth, 12 Va. App. 391, 396, 404 S.E.2d 384, 387 (1991) (citations omitted). Viewing the evidence in the light most favorable to the Commonwealth, we cannot say that the trial court was plainly wrong in concluding that the Commonwealth's evidence proved that appellant's 1988 conviction for DUI resulted from a counseled plea. To do so would require us to speculate, without any factual basis in the record, that appellant's court-appointed counsel abandoned her client. To the contrary, we presume that "counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Stamper v. Townley, 4 Va. App. 101, 106, 354 S.E.2d 802, 804 (1987).
For the reasons set forth above, the judgment of the trial court is affirmed.
Affirmed.