FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH H. Thomas Padrick, Jr., Judge
Mykell L. Messman (Messman Law, PLC, on brief), for appellant.
Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Decker, Russell and Senior Judge Felton Argued at Norfolk, Virginia.
WESLEY G. RUSSELL, JR. JUDGE.
On April 22, 2013, appellant was convicted in a bench trial of driving under the influence, third offense within five years, in violation of Code § 18.2-266 and sentenced in accord with Code § 18.2-270. On appeal, appellant contends that the evidence was insufficient to support a finding of driving while under the influence (DUI). He further argues that the trial court erred in allowing a previous DUI conviction that was based on a reduced charge to be used for enhancement purposes under Code § 18.2-270. For the following reasons, we affirm his conviction for DUI, but vacate the sentence imposed under Code § 18.2-270(C)(1) for DUI, third offense, and remand the case to the trial court for appellant to be sentenced for DUI, second offense.
On March 26, 2012, appellant and his wife were having marital problems, including her concerns regarding his drinking. Appellant had taken up residence in a condominium within fifteen minutes of the marital home. Although the parties were separating, appellant spent that weekend in the marital residence. On March 26, 2012, appellant left the marital home between 6:15 and 6:30 p.m. to return to his condominium. After stopping at a market on the way, he swerved and drove his vehicle, a BMW, into a mailbox. He then proceeded to his residence. Police located him and his car in the parking garage associated with his condominium.
At trial, appellant and the Commonwealth stipulated to some of the evidence. The parties agreed that witnesses would have testified to a crash occurring around 7:10 p.m. on March 26, 2012. The owner of the mailbox, George Osipov, would have testified that he saw the BMW enter his front yard and hit the mailbox. Osipov was the first to arrive at the crash site and smelled alcohol. Monique Neff also would have testified that she saw appellant's BMW swerve and hit the mailbox. She further saw appellant wearing a blue baseball cap and noticed an open container of beer in the car. Kirk Radicon, who saw appellant after he entered the parking garage, observed that appellant smelled of alcohol, swayed and stumbled, and had bloodshot eyes. Radicon also would have testified that appellant admitted to him that he had hit something.
The Commonwealth called as a witness Detective Christopher Lazar of the Virginia Beach Police Department. Detective Lazar testified that he arrived at the parking garage around 7:45 p.m. and found a security guard and appellant with his car. Appellant was drinking a beer and smoking a cigarette. Detective Lazar also noticed another beer sitting outside the car and one inside the vehicle. The car engine was warm, and the headlights were on. Detective Lazar noted that there was damage to the front bumper of the vehicle.
Detective Lazar questioned appellant, who reported that he had been out to dinner with his family. Detective Lazar testified that appellant told him that he had consumed two or three beers with dinner and then later switched to a glass of wine. He specifically asked whether appellant had anything to drink after the crash; appellant responded that he drank one and a quarter beers, which were in the car. He asked whether he had taken any medications; appellant responded that, although he had a prescription for Xanax, he had not taken any "that day."
During their conversation, Detective Lazar observed that appellant's speech was slurred, almost to the point of incoherence, and that it took a long time to understand what appellant was saying. Appellant had difficulty standing and walking. Detective Lazar also noticed that appellant's face was flushed; his eyes were bloodshot, watery, and glassy; and a strong smell of alcohol emanated from his person. In addition, appellant's pants were wet in the genital area. He asked appellant to perform some field sobriety tests. Detective Lazar performed the horizontal gaze nystagmus test and observed responses indicative of an elevated blood alcohol concentration. In response to instructions for the walk-and-turn test and one-leg lift test, appellant stated he could not perform these tasks "even if he was sober." Detective Lazar then read appellant his rights for the preliminary breath test around 8:25 p.m. and offered the test. Appellant refused the breath test and was placed under arrest around 8:30 p.m.
Appellant's wife testified on his behalf. She said that he left the marital home between 6:00 and 6:30 p.m. She acknowledged that appellant was having drinking issues. She stated that although there had been wine with dinner earlier in the weekend, appellant had consumed no alcohol that day and that there had been none in the house. She did not notice any impairment in his speech, motor skills, or appearance when he left. She did not see him again that evening. She acknowledged that she did not want appellant to go to jail.
Appellant testified in his own defense. He stated that he left the marital residence around 6:15 p.m. He testified that he had not consumed any alcohol up to that point. He stated that he was heading to his temporary residence, about fifteen minutes away, and stopped at a market on the way, where he purchased a 12-pack of beer and some cigarettes. He admitted that he hit the mailbox with his BMW on his trip from the market to his condominium. He confirmed the stipulated witness testimony that he had an open beer container in the car. When asked whether he had consumed any of the beer, appellant responded, "I may have had a couple of sips, but as I had said, I had spilled some of it on my lap. So I put it . . . in the cup holder." He noted that he had an open bottle of wine in the car. He attributed his swerving and hitting the area around the mailbox to his reaching to secure items that were falling over from the passenger seat. Appellant testified that, because it did not appear as though anyone was around to notify of the incident, he returned to his car after he retrieved a fender that had fallen off of his car. He denied there being any witnesses and expressly said that Osipov did not approach him at that time.
He said he consumed a Xanax after he had returned to his residence. He stated he drank the remainder of the wine that had been in the car, about ¾ of a bottle. According to appellant's testimony, when he was approached by Detective Lazar, he was in the parking garage to smoke and to retrieve some items from his car. He asserted that his statements to Detective Lazar about his beer consumption had been in reference to drinks he had had at the condominium, prior to Detective Lazar's arrival, but after he had stopped driving. Appellant testified that he had "chugged" four bottles of beer and had left an additional two bottles half empty.
As a result of the events of March 26, 2012, appellant was charged with felony DUI, third offense. To establish the predicate convictions, the Commonwealth relied on two prior DUI convictions. One was a September 2012 conviction for DUI, first offense, in violation of Code § 18.2-266 for driving that occurred on March 16, 2012. This conviction was the result of a plea in circuit court after the appeal of a May 7, 2012 judgment of the General District Court of the City of Virginia Beach finding appellant guilty of DUI, first offense, after the general district court struck the initial charge of DUI, second offense. Other than to note that he was convicted of DUI, first offense, for the March 16, 2012 incident, appellant does not take issue with this predicate offense on appeal.
The other was a June 9, 2010 conviction from the General District Court of the City of Virginia Beach for DUI, first offense, in violation of Code § 18.2-266 for an offense that occurred on April 21, 2010. The conviction order, signed by the judge, indicates that appellant was present at trial, was represented by counsel, and pled guilty to the charge. A blank on the conviction order where the judge could have checked that the plea was "voluntarily and intelligently entered after the defendant was apprised of his right against compulsory self-incrimination and his right to confront witnesses against him . . ." was not checked by the judge. Appellant did not appeal this conviction nor raise any challenge to the validity of his guilty plea at the time.
At trial, appellant argued that the 2010 conviction could not be used by the Commonwealth as a predicate offense. Specifically, he argued that, in reducing the March 16, 2012 charge from DUI in violation of Code § 18.2-266, second offense, to DUI, first offense, the general district court in 2012 ruled that the 2010 conviction could not serve as a basis for sentence enhancement. Although the May 7, 2012 conviction order provides no reason as to why the charge was reduced in the general district court, appellant argued in the trial court that the basis for the reduction in the charge was the general district court's determination that the 2010 "guilty plea . . . was in violation of his constitutional rights because the court in 2010 had not advised [appellant] that before accepting his guilty plea he was waiving his rights against compulsory self-incrimination; right to confront and examine his accusers and witnesses; and waiving his right to defend himself." The Commonwealth argued that the order did not reveal that was the reason for the reduction in the offense and objected to the trial court considering "anything that's not within the court's record as it has before it in regard to those orders." The Commonwealth also argued that the 2010 general district court proceeding relied upon by appellant was a nullity because appellant had appealed the general district court's judgment to the circuit court, where he eventually pled guilty to DUI in violation of Code § 18.2-266, first offense.
Despite having made these initial objections, the Commonwealth ultimately agreed that appellant accurately had represented the basis for the general district court's decision to reduce the March 16, 2012 charge to DUI, first offense. Specifically, after the trial court invited appellant to offer testimony as a proffer of the basis of the general district court's rationale, the Commonwealth stated:
I'll stipulate. I – it's my understanding that that was the reason for why Judge Hutchens reduced the charges to a DUI first. I don't think there's any evidence before the court. I will make it evidence now as part of that stipulation that Judge Hutchens reduced that because she did not find that first prior to be [valid for purposes of sentence enhancement under Code § 18.2-270].
Having considered all of the evidence and the arguments, the trial court admitted the 2010 conviction order into evidence and considered it a valid conviction for the purposes of Code § 18.2-270. Having done so, the trial court found appellant "guilty of . . . driving under the influence third or subsequent offense . . . ." In reaching this conclusion, the trial court made a specific finding that appellant was "not credible at all."
Appellant raises three challenges to his conviction on appeal. He argues that the evidence regarding the March 26, 2012 incident was insufficient to allow the trial court to find him guilty of DUI in violation of Code § 18.2-266. He further argues that he could not have been guilty of DUI, third or subsequent offense, because, even assuming he had been twice convicted of DUI in violation of Code § 18.2-266, he previously had never been convicted of DUI, second offense. He also argues that the Commonwealth could not rely on the June 2010 conviction as a predicate offense under Code § 18.2-270 because that issue had been resolved in his favor in the general ...