Greco v. Commonwealth

KYLE WAYNE GRECO v. COMMONWEALTH OF VIRGINIA

Record No. 2121-12-1

COURT OF APPEALS OF VIRGINIA

APRIL 1, 2014

UNPUBLISHED

Present: Judges Frank, Kelsey and Alston

Argued at Chesapeake, Virginia

MEMORANDUM OPINION^*

PER CURIAM

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH

William R. O'Brien, Judge

Jamison P. Rasberry, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

The trial court convicted Kyle Wayne Greco of driving under the influence of alcohol, his third offense within five years and thus a Class 6 felony under Code § 18.2-270(C)(1). Greco argues on appeal that the trial court erroneously relied upon his two prior DUI convictions as predicate offenses. We disagree and affirm.

I.

On two separate occasions in 2010, Greco pled guilty to charges of driving under the influence of alcohol. In both cases, the trial court accepted the guilty pleas and found him guilty. The preprinted conviction and sentencing form order on the back of each arrest warrant specifically noted Greco's guilty plea, the finding of "guilty as charged," the imposition of a jail sentence, and the presence of his attorney. App. at 106-09. Greco was again arrested for a DUI in 2011. The prosecutor charged him under Code § 18.2-270(C)(1), a DUI recidivism statuteimposing enhanced punishment for drunk drivers convicted of three offenses within five or ten years.

At the trial of his third offense, Greco's counsel objected when the prosecutor asked the court to rely on Greco's prior two DUI convictions as predicates for his third-offense DUI charge. On the back of both arrest warrants, where the general district court makes a record of the proceedings, there are various form entries preceded by boxes to be checked. Greco's counsel pointed out that one of the boxes was unchecked. It read:

[ ] Plea voluntarily and intelligently entered after the defendant was apprised of his right against compulsory self-incrimination and his right to confront the witnesses against him.

All of the other relevant boxes were checked. The checked entries recorded Greco's presence at trial, along with his attorney, as well as Greco's guilty plea, the court's conviction and sentence, the terms of probation, and the license suspension.

Relying on Boykin v. Alabama, 395 U.S. 238 (1969), Greco's counsel argued that the unchecked box on both forms rendered each conviction "invalid on its face" under constitutional due process principles. As a result, neither of the two prior DUI convictions could serve as predicates for Greco's third-offense DUI charge. See App. at 11-13. The Commonwealth disagreed and argued that the trial court could properly rely on both prior convictions.¹ Rejecting Greco's argument, the trial court relied on the two prior DUI convictions as predicates for convicting Greco of his third DUI offense under Code § 18.2-270(C)(1).

II.

On appeal, Greco asserts that the trial court misapplied Boykin and erroneously relied upon his two prior DUI convictions as predicate offenses. Constitutional due process principles, Greco argues, render his prior DUI convictions invalid because the conviction orders do not affirmatively state that his guilty pleas were voluntarily and intelligently entered.² We disagree.

It is true that due process precludes a trial court from accepting an involuntary guilty plea. Boykin reinforced this point by holding that "a knowing and voluntary waiver of the right to trial cannot be inferred from a silent record." Gonzalez v. United States, 553 U.S. 242, 255 n.1 (2008) (Scalia, J., concurring) (citing Boykin, 395 U.S. at 244). Boykin, however, "involved direct review of a conviction allegedly based upon an uninformed guilty plea." Parke v. Raley, 506 U.S. 20, 29 (1992) (emphasis added). Boykin did not involve a defendant who had "never appealed his earlier convictions" but later sought to "revisit the question of their validity in a separate recidivism proceeding," id., as is the case here.

This is a procedural distinction with a constitutional difference. "To import Boykin's presumption of invalidity into this very different context would . . . improperly ignore another presumption deeply rooted in our jurisprudence: the 'presumption of regularity' that attaches to final judgments, even when the question is waiver of constitutional rights." Id. (citing Johnsonv. Zerbst, 304 U.S. 458, 464, 468 (1938)). This principle applies to many forms of "collateral attack" including situations where, as here, a defendant seeks to deprive his former convictions "of their normal force and effect in a [recidivist] proceeding that had an independent purpose other than to overturn the prior judgments." Id. at 30.

We have applied this presumption of regularity on several occasions. We treat the presumption as rebuttable when the claim of invalidity alleges a denial of counsel. See, e.g., Samuels v. Commonwealth, 27 Va. App. 119, 123, 497 S.E.2d 873, 875 (1998); Harris v. Commonwealth, 26 Va. App. 794, 806, 497 S.E.2d 165, 171 (1998); Nicely v. Commonwealth, 25 Va. App. 579, 585, 490 S.E.2d 281, 283 (1997).

Outside the denial-of-counsel context, however, we have reached differing conclusions. In James v. Commonwealth, 18 Va. App. 746, 751, 446 S.E.2d 900, 903 (1994), we treated the presumption as rebuttable in a case involving an allegedly involuntary guilty plea. The defendant in James challenged a predicate conviction, claiming the warrant failed to indicate that his plea of guilty was knowingly and voluntarily given. "Appellant's only evidence for his collateral attack was the lack of an affirmative record" showing he voluntarily and knowingly pled guilty. Id. at 751, 446 S.E.2d at 903. As such, we found James failed to rebut the presumption of regularity. Id. at 752, 446 S.E.2d at 904. More recently, in Vester v. Commonwealth, 42 Va. App. 592, 593 S.E.2d 551 (2004), we held the presumption could not be rebutted as a matter of law when the collateral attack merely involves a claim of ineffective assistance of counsel. "[T]he right to collaterally attack a prior criminal conviction in a subsequent proceeding for enhancement purposes," Vester explained, "is limited to the actual denial of counsel." Id. at 597, 593 S.E.2d at 553 (citing Daniels v. United States, 532 U.S. 374, 378 (2001); Custis v. United States, 511 U.S. 485, 496 (1994); United States v. Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996)).

For purposes of deciding this case, we need not determine whether the Boykin presumption is subject to rebuttal absent a denial-of-counsel claim. Greco produced no persuasive evidence sufficient to rebut the presumption of validity applicable to his two prior DUI convictions. His only argument was limited to the fact a blank on the form conviction order was unchecked.

Appellant was represented by counsel in both cases. No circumstances, other than his unsupported allegations, suggested that he was misled, misinformed, or in any way ill-prepared to make an intelligent guilty plea in either case. Having failed to make a prima facie showing sufficient to rebut the presumption, Greco cannot overcome the presumed validity of the two DUI convictions that served as predicates for his third-offense DUI conviction. For this reason, the trial court did not err in relying on these convictions to find Greco guilty of violating Code § 18.2-270(C)(1).³

Affirmed.

Kelsey, J., concurring.

The United States Supreme Court has held that, in recidivist proceedings involving a collateral attack of a prior conviction, the presumption of regularity is "conclusive." Daniels v. United States, 532 U.S. 374, 382 (2001); see also United States v. Hickman, 626 F.3d 756, 773 (4th Cir. 2010) (recognizing that Daniels established a "conclusive presumption"); United States v. Martinez-Martinez, 295 F.3d 1041, 1044 (9th Cir. 2002) (recognizing that Daniels applied a "conclusive presumption"). Thus, absent a successful attack on the conviction on direct appeal, "the conviction becomes final and the defendant is not entitled to another bite at the apple simply because that conviction is later used to enhance another sentence." Daniels, 532 U.S. at 383.

Only one exception exists to this conclusive presumption: The rule that collateral attacks are "off-limits" does not apply to challenges to convictions "obtained in violation of the right to appointed counsel" under the Sixth Amendment. Johnson v. United States, 544 U.S. 295, 303 (2005). This exception, however, stands alone. No others have been recognized. See Daniels, 532 U.S. at 378 (noting it as the "sole exception"); Custis v. United States, 511 U.S. 485, 496 (1994) (refusing to "extend the right to attack collaterally prior convictions" beyond cases involving a denial of counsel, which the Court characterized as "a unique constitutional defect"); Hickman, 626 F.3d at 773 (recognizing denial of counsel as the exclusive exception to the "conclusive presumption" of Daniels); Vester v. Commonwealth, 42 Va. App. 592, 597, 593 S.E.2d 551, 553 (2004) (stating that "the right to collaterally attack a prior criminal conviction in a subsequent proceeding for enhancement purposes is limited to the actual denial of counsel"). Following Daniels, the conclusive nature of the presumption and the exclusive nature of the denial-of-counsel exception have become settled law.⁴

After Daniels, the issue has arisen only once in Virginia. In Vester, a defendant collaterally attacked a prior conviction claiming ineffective assistance of counsel. We observed that "effectiveness of counsel is a separate issue from the right to counsel," Vester, 42 Va. App. at 596, 593 S.E.2d at 552 (internal quotation marks omitted), and the "right to collaterally attack a prior criminal conviction in a subsequent proceeding for enhancement purposes is limited to the actual denial of counsel," id. at 597, 593 S.E.2d at 553 (citin...