Robin Lynn Cain v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
ROBIN LYNN CAIN
MEMORANDUM OPINION * BY
v. Record No. 2737-97-4 JUDGE RICHARD S. BRAY
SEPTEMBER 29, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
Perry W. Sarver, Judge Designate
David H. N. Bean for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Robin Lynn Cain (defendant) was convicted by a jury for
felonious petit larceny pursuant to Code § 18.2-104. On appeal,
defendant complains that the evidence failed to establish that
all prior convictions necessary to the subject offense resulted
from prosecutions during which she was assisted by counsel.
Finding no error, we affirm the verdict.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary for
disposition of the appeal.
During trial, the Commonwealth offered several exhibits to
prove the requisite prior larceny convictions. Over defendant's
objection, the court admitted into evidence a certified and
authenticated copy of a "Warrant of Arrest," together with the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
related order of the Fairfax County General District Court, which
established a previous conviction of defendant for petit larceny
in that jurisdiction. The preprinted form reflected a check mark
at the words "Defendant's Attorney (Name)," without naming
counsel, and illegible notations below "Attorney for the
Accused." The order also assessed "Costs" of $100 for a "Court
Appointed Attorney." Nevertheless, defendant contends that the
exhibit failed to establish that she was represented by counsel
in such prosecution, although she presented no evidence on the
issue during the guilt phase of trial.
It is well established that,
"[a] previous misdemeanor conviction attended
by incarceration is constitutionally
offensive and may support neither guilt nor
enhanced punishment for a later offense,
unless the accused either waived or was
represented by counsel in the earlier
proceeding." 1 However, when . . . a prior
conviction is collaterally attacked in a
subsequent proceeding, "the Commonwealth is
entitled to a presumption of regularity which
attends the prior conviction because 'every
act of a court of competent jurisdiction
shall be presumed to have been rightly done,
till the contrary appears[,]'" "'[e]ven when
a collateral attack on a final conviction
rests on constitutional grounds . . . .'"
Thus, unless the defendant presents evidence
rebutting the presumption of regularity, by
which it may be presumed that the conviction
was obtained in compliance with the
defendant's right to counsel, the
Commonwealth has satisfied its burden of
proving that the prior conviction was valid
and, therefore, was admissible to establish a
third offense in order to enhance
1
The briefs presuppose that incarceration attended the prior
misdemeanor conviction, although the record is unclear.
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punishment. 2
Samuels v. Commonwealth, 27 Va. App. 119, 123-24, 497 S.E.2d 873,
875 (1998) (citations omitted); see Harris v. Commonwealth, 26
Va. App. 794, 803-04, 497 S.E.2d 165, 169-70 (1998); Nicely v.
Commonwealth, 25 Va. App. 579, 583-84, 490 S.E.2d 281, 283
(1997).
Here, the prior conviction in dispute was clearly clothed
with the presumption of regularity, unrebutted by defendant
during trial. Moreover, like Samuels, the instant record
supports the trial court's implicit finding that defendant was
actually represented by counsel in the earlier proceeding. Under
such circumstances, the trial court properly received the exhibit
into evidence.
Accordingly, we affirm the conviction.
Affirmed.
2
Defendant's testimony at the sentencing phase of trial was
immaterial to the jury's previous finding of guilt. Tyler v.
Commonwealth, 21 Va. App. 702, 709, 467 S.E.2d 294, 297 (1996).
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