Virginia Lawyers Weekly VA Lawyers Weekly
Although an order adjudicating defendant guilty of grand larceny as a juvenile did not have a check mark by a box indicating he had received his rights, the order nevertheless was adequate to show his prior conviction of a felony, and the Court of Appeals affirms his conviction for possession of a firearm as a convicted felon.
Our decision today is governed by our prior decisions in Samuels v. Commonwealth, 27 Va. App. 119 (1998), Harris v. Commonwealth, 26 Va. App. 94 (1998) and James v. Commonwealth, 18 Va. App. 746 (1994).
In addition to the presumption of regularity that attends a prior conviction that is collaterally attacked in a subsequent proceeding, Va. Code § 19.2-307, which dictates the contents of a judgment order in Virginia, was promulgated after Boykin and provides only that the “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 court and the attorney for the Commonwealth.” This code section does not mandate that the Boykin colloquy be a part of the order. Therefore, in light of the presumption of regularity, the absence of a mark on the order indicating that this colloquy had been given when there is no requirement that this information be on the order is not sufficient by itself to show that the prior plea had not been knowingly and voluntarily made.
We find no support in the law for defendant’s contention that the absence of a mark indicating that he had knowingly and voluntarily waived his rights is credible evidence of a constitutional infirmity in the judgment.
Conviction affirmed.
Isaac v. Commonwealth (Powell, J.) No. 1635-09-2, Nov. 2, 2010; Richmond Cir.Ct. (Cavedo) Catherine French, Sup. APD; Craig W. Stallard, AAG. VLW 010-7-409(UP), 5 pp.
