Virginia Lawyers Weekly VA Lawyers Weekly
Appellant has waived his due process challenge to his conviction of driving as a habitual offender because he did not raise the issue in the trial court. Further, the “ends of justice” exception to the waiver rule does not apply because appellant has not shown that a manifest injustice has occurred.
His 18-month sentence is affirmed.
Due process
“Appellant asserts that he reasonably believed he was lawfully driving at the time of the offense based on his receipt of a driver’s license from the DMV following his declaration as a habitual offender. However, on appeal, we do not consider appellant’s argument because it was waived under Rule 5A:18. …
“Appellant’s sole argument at trial was that he had ‘thought that he was okay to drive’ because he did not ‘recall being convicted [for driving as a habitual offender] in 2013’ due to ‘some brain issues.’
“Appellant never asserted any specific constitutional due process argument based on his receipt of a driver’s license from the DMV. Accordingly, appellant failed to preserve his due process argument for appellate review.”
Ends of justice
“[A]ppellant asks us to consider his arguments for the first time on appeal ‘to attain the ends of justice’ under Rule 5A:18. … We conclude that appellant has failed to show that a manifest injustice has occurred; therefore, we decline to apply the ends-of-justice exception.
“Appellant argues that the trial court erred in convicting him because he acted in reasonable, good-faith reliance on the DMV’s issuance of a driver’s license to him. However, the document introduced at sentencing does not affirmatively establish that appellant was issued a valid driver’s license following his adjudication as a habitual offender.
“The document only states that it is a ‘receipt’ that ‘acknowledges’ that the ‘driver’s license / ID card of [appellant] has been surrended [sic] to the Virginia Department of Motor Vehicles’ There is no indication from this document whether the item surrendered by appellant was in fact a valid Virginia driver’s license.
“While appellant testified that he had surrendered a valid Virginia driver’s license that had been issued to him in 2018, appellant’s testimony itself does not affirmatively establish that the item he surrendered was a valid Virginia license.
“Further, he confirmed at trial that the license was a duplicate, and his DMV transcript reflected that no license had been issued to appellant since he was declared a habitual offender in 1998. … Accordingly, the ends-of-justice exception does not apply, and Rule 5A:18 bars consideration of appellant’s due process argument.
Sufficient evidence
“Appellant also contends that the evidence failed to prove that he knew that ‘his revocation was “in effect”’ at the time’ of the incident. … Assuming without deciding that appellant preserved this assignment of error, we reject appellant’s argument because his knowledge that his revocation was in effect at the time he was driving was not an element that the Commonwealth needed to establish to sustain a conviction under Code § 46.2-357. …
“However, a conviction under Code § 46.2-357 does not require proof of a defendant’s actual knowledge of his status as a habitual offender or the validity of his license at the time of the offense; rather, it requires proof only that the defendant drove after receiving notice of his declaration as a habitual offender. …
“[T]he Commonwealth established that appellant was adjudicated to be a habitual offender, received notice of that adjudication, and was driving a vehicle in the Commonwealth.
“In July 1998, the DMV declared appellant a habitual offender. During a traffic stop in September 1998, appellant signed a DSA10 form acknowledging his status as a habitual offender.
“Because the evidence in the record demonstrated that appellant received notice of his habitual offender adjudication, and because his ‘subjective knowledge or belief regarding his status [as a habitual offender] [was] irrelevant’ for purposes of Code § 46.2-357, we conclude that the evidence was sufficient to sustain appellant’s conviction under that code section.”
Sentencing
“[A]ppellant argues that the trial court abused its sentencing discretion by failing to properly weigh ‘mitigating factors.’
“Appellant asserts that the court ‘gave too much weight’ to his previous convictions for driving on a revoked license and inadequate consideration to his indigency, mental health conditions, mistaken belief that his license was valid, and successful restoration of his driving privileges after years of eligibility. We disagree. …
“[I]t was within the trial court’s purview to weigh the mitigating evidence appellant presented. … [T]he record demonstrates that the trial court reviewed and considered the mitigating evidence appellant cites on appeal, including appellant’s significant history of mental illness and cognitive impairment.
“Balanced against that evidence, however, was appellant’s extensive criminal record. After considering all the circumstances, the trial court imposed the sentence that it deemed appropriate. That sentence ‘does not exceed [the statutory] maximum,’ and thus we conclude that sentence imposed [18 months] did not constitute an abuse of discretion by the trial court.”
Affirmed.
Plummer v. Commonwealth, Record No. 0039-22-1, Oct. 18, 2022. CAV (Malveaux). From the Circuit Court of the City of Chesapeake (Brown). Meghan Shapiro for appellant. Justin B. Hill, Jason S. Miyares for appellee. VLW 022-7-472, 11 pp.
