COURT OF APPEALS OF VIRGINIA 

Present: Judge Benton, Bumgardner and Kelsey 

Argued at Alexandria, Virginia 

MANU KAPOOR 

 MEMORANDUM OPINION*

 BY 

v. Record No. 2582-03-4 JUDGE RUDOLPH BUMGARDNER, III 

 NOVEMBER 16, 2004 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Frank A. Hoss, Judge Designate 

 Ann B. Carr (Carr & Carr, on brief), for appellant. 

 Robert H. Anderson, III, Senior Assistant Attorney General (Jerry 

W. Kilgore, Attorney General, on brief), for appellee. 

Manu Kapoor appeals her conviction of third offense petit larceny, a felony, Code 

§ 18.2-104. She maintains the trial court erred by admitting evidence of an uncounseled 

misdemeanor conviction. Concluding the conviction was admissible, we affirm. 

The Commonwealth offered two conviction orders to raise the offense to a felony. The 

defendant objected to the second order because it did not clearly indicate that she was 

represented by counsel.1

 The defendant received a fine of $1,500 but received neither an active 

nor suspended jail sentence. 

The defendant maintains that Sargent v. Commonwealth, 5 Va. App. 143, 153, 360 

S.E.2d 895, 901 (1987), controls because it has never been expressly overruled. She also 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 The trial court assumed she was not represented by counsel because the order was not 

clear. 
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maintains that her statutory right to counsel, Code § 19.2-160, precluded the admission of the 

conviction order. 

Sargent is no longer good law because it rested on Baldasar v. Illinois, 446 U.S. 222 

(1980), which Nichols v. United States, 511 U.S. 738, 748 (1994), overruled. Baldasar held that 

uncounseled misdemeanor convictions could not be used to enhance punishment. Nichols held 

an uncounseled misdemeanor conviction was admissible to determine sentence in a subsequent 

offense if the conviction imposed no imprisonment but only a fine. 511 U.S. at 748-49. The 

Court reiterated the rule of Scott v. Illinois, 440 U.S. 367, 373 (1979), that “actual imprisonment 

[is] the line defining the constitutional right to appointment of counsel.” 

This Court has recognized that Sargent is no longer a proper application of federal 

constitutional law. See Sawyer v. Commonwealth, 43 Va. App. 42, 50, 596 S.E.2d 81, 85 

(2004); Nicely v. Commonwealth, 25 Va. App. 579, 584, 490 S.E.2d 281, 282-83 (1997). As 

clarified in Alabama v. Shelton, 535 U.S. 654, 674 (2002), the federal constitutional right to 

appointment of counsel attaches in a misdemeanor case when punishment involves active or 

suspended imprisonment.2 In this case, the defendant had no constitutional right to the 

appointment of counsel at her prior misdemeanor conviction because she did not receive an 

active or suspended jail sentence. 

Any violation of the statutory right to counsel would not mandate exclusion of the 

conviction order. “While violations of state procedural statutes are viewed with disfavor . . . 

neither the Virginia Supreme Court nor the legislature has adopted an exclusionary rule for such 

 2

 Shelton extended the constitutional right to counsel to cases in which a suspended 

sentence in imposed. It “rejected the Virginia Supreme Court’s conclusion in Griswold [v. 

Commonwealth, 252 Va. 113, 472 S.E.2d 789 (1996),] that an uncounseled misdemeanor 

conviction is invalid only if an active period of incarceration is imposed.” Sawyer v. 

Commonwealth, 43 Va. App. 42, 51, 596 S.E.2d 81, 85 (2004). 
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violations. . . . where no deprivation of the defendant’s constitutional rights occurred.” 

Thompson v. Commonwealth, 10 Va. App. 117, 122, 390 S.E.2d 198, 201 (1990) (confession 

obtained during period of statutorily invalid arrest not subject to exclusion when accused 

constitutionally in custody and confessed voluntarily) (citations omitted). 

The record of the defendant’s prior conviction was admissible. Accordingly, we affirm. 

Affirmed.