Donald G. Judy, Assistant Public Defender, for appellant.
Katherine Quinlan Adelfio, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General; David M. Uberman, Assistant Attorney General, on brief), for appellee.
Present: PETTY, McCULLOUGH and CHAFIN, JJ.
[62 Va.App. 647] Pursuant to Code § 19.2-254, Tracy Wayne Claytor entered a conditional plea of guilty to an indictment charging him with operating a motor vehicle after having been declared an habitual offender, in violation of Code § 46.2-357. Under his conditional plea of guilty, Claytor preserved the right to appeal the trial court's pre-trial ruling prohibiting him from introducing evidence that he reasonably believed that he was no longer an habitual offender on the date of the offense. Claytor argues that the trial court erred because he was entitled to assert the affirmative defense of good faith reliance, [62 Va.App. 648] as recognized in Miller v. Commonwealth, 25 Va.App. 727, 492 S.E.2d 482 (1997), and because the evidence excluded was relevant to that defense. Specifically, Claytor argues that the wording of the September 21, 2011 order, which restored his privilege to operate a motor vehicle on a restricted basis, caused him to reasonably believe that he was no longer an habitual offender. This reasonable belief, he further argues, constituted a defense to the indictment of driving after having been declared an habitual offender. For the following reasons, we disagree. Therefore, we affirm Claytor's conviction of operating a motor vehicle while an habitual offender.
" 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) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).
The parties stipulated to the following facts. On May 13, 1991, Claytor was adjudicated as an habitual offender by order of the Waynesboro Circuit Court. Claytor was personally present when he was found to be an habitual offender and was ordered by the court not to operate a motor vehicle on the
highways of the Commonwealth. On September 16, 2004, Claytor was convicted of driving after having been declared an habitual offender. On July 14, 2011, Claytor petitioned the court for restoration of driving privilege, and the petition included Claytor's statement: " I have been adjudged/determined to be an habitual offender...."
On September 21, 2011, the Circuit Court of Augusta County issued the order, which included the following language:
[I]t is hereby ORDERED that, pursuant to Section 46.2-360 of the Code of Virginia, TRACY WAYNE CLAYTOR, is hereby restored his privilege to operate a motor vehicle in the Commonwealth of Virginia on a restricted basis and under the conditions that he successfully complete the Valley Alcohol Safety Action Program and that he shall not [62 Va.App. 649] operate a motor vehicle at any time after having consumed any alcohol or drugs, and that his restricted license require an ignition interlock system on any vehicle that he may drive, and the violation of these conditions would be a ground for vacating this Order and Petitioner reverting to habitual offender status.
On October 21, Investigator Joey Good and Lieutenant A.C. Powers of the Augusta County Sheriff's Office saw a motorcycle approaching, which Investigator Good recognized as being Claytor's motorcycle. Investigator Good stopped his vehicle in the roadway, without activating the lights, and the motorcycle stopped and pulled up to Investigator Good. Claytor, who was operating the motorcycle, removed his helmet and told Investigator Good that he did not have a license. There was no ignition interlock on the motorcycle. Claytor was charged with operating a ...