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OWENS v. COMMONWEALTH


OWENS v. COMMONWEALTH

(unpublished)


MAY 4, 1999

Record No. 1060-98-2

PAULUS THENDOLL OWENS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY

George F. Tidey, Judge

Present: Judges Elder, Bray and Senior Judge
Baker

Argued at Richmond, Virginia

MEMORANDUM OPINION[1] BY JUDGE
RICHARD S. BRAY

William T. Linka (Boatwright & Linka, on
brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for
appellee.


Paulus Thendoll Owens (defendant) was convicted
by the trial court for operating a motor vehicle after being
adjudged an habitual offender, a violation of Code Sect.
46.2-357(B). On appeal, defendant challenges the sufficiency of
the evidence to prove actual notice of the adjudication. We
disagree and affirm his conviction.

The parties are fully conversant with the
record, and this memorandum opinion recites only those facts
necessary to a disposition of the appeal.

"On appeal, ‘we review the evidence
in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom.’"
Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826,
831 (1997) (citation omitted). The credibility of the witnesses,
the weight accorded testimony, and the inferences to be drawn
from proven facts are matters to be determined by the fact
finder. See Long v. Commonwealth, 8 Va. App. 194,
199, 379 S.E.2d 473, 476 (1989). The judgment of the trial court
will not be set aside unless plainly wrong or without support in
the evidence. See Code Sect. 8.01-680.

On October 1, 1997, State Trooper J.L. Bradford
observed defendant speeding and "pulled [him] over."
When Bradford inquired "about his license," defendant
initially acknowledged "that he doesn’t [sic] have his
license," but denied that his privileges were
"suspended." Defendant then "changed his
mind" and confessed that he "was suspended,"
adding that he "didn’t know he was a habitual
offender." Following further investigation by Bradford,
defendant was arrested for driving while intoxicated and after
having been declared an habitual offender, the instant offense.

At trial, the Commonwealth introduced a
certified DMV "Transcript of [defendant’s] Driver
History," which reflected an habitual offender adjudication
by the Richmond General District Court on September 3, 1996,
together with the attendant show cause and final orders. The
adjudication order recited that defendant had failed to appear at
the hearing, despite personal service of the show cause order on
May 2, 1996. The documentary evidence further established that an
"appeal [was] noted" of the order, but "not
perfected," and a "copy [of the order had been] mailed
to [defendant]" on October 3, 1996. Nevertheless, relying
upon Reed v. Commonwealth, 15 Va. App. 467, 424 S.E.2d 718
(1992), defendant contends that such evidence failed to establish
actual notice of the adjudication, a proof indispensable to the
instant conviction.

Code Sect. 46.2-357(B) punishes "any
person found to be an habitual offender . . ., who is
thereafter convicted of driving a motor vehicle . . .
while the revocation determination is in effect." However,
"Code Sect. 46.2-355 . . . requires that the
person receive actual notice of having been declared an habitual
offender and directed not to drive before he can be convicted and
imprisoned for driving after having been declared an habitual
offender." Reed, 15 Va. App. at 471, 424 S.E.2d at
720-21. Thus, the Commonwealth must prove actual notice of an
habitual offender adjudication to support a conviction for
violation of Code Sect. 46.2-357. See id. at
471-72, 424 S.E.2d at 720-21.

Here, the record clearly reflects that an
appeal was noted from the adjudication order. "An appeal
[from a general district court judgment] may be noted by a party
or by the attorney for such party." Rule 7A:13; see also
Code Sect. 16.1-106. "In the absence of clear evidence
to the contrary, courts may presume that public officers have
properly discharged their official duties." Robertson v.
Commonwealth
, 12 Va. App. 854, 856-57, 406 S.E.2d 417, 418
(1991) (citations omitted). "The attorney-client
relationship presumes that attorney and client, as servant and
master, will communicate about all the important stages of the
client’s . . . trial." Hunter v.
Commonwealth
, 15 Va. App. 717, 722, 427 S.E.2d 197, 201
(1993); see also Code Sect. 8.01-314. Guided
by these principles, the record establishes that an appeal of the
order was properly noted by defendant or his attorney in
compliance with the Rules of Court, a circumstance sufficient to
prove that defendant was actually cognizant of its import,
directly or through counsel.

Accordingly, we affirm the conviction.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

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