COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Beales and Powell 

Argued at Richmond, Virginia 

DELWIN LAMBERT ISAAC, JR. 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1635-09-2 JUDGE CLEO E. POWELL 

 NOVEMBER 2, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Bradley B. Cavedo, Judge 

 Catherine French, Supervising Assistant Public Defender 

(Office of the Public Defender, on brief), for appellant. 

 Craig W. Stallard, Assistant Attorney General (Kenneth T. 

Cuccinelli, II, Attorney General, on brief), for appellee. 

 Delwin Lambert Isaac, Jr. appeals from his conviction for possession of a firearm by a 

convicted felon, in violation of Code § 18.2-308.2. On appeal, Isaac contends that the evidence 

was insufficient to prove that he was previously adjudicated delinquent of a felonious act. For 

the reasons that follow, we affirm Isaac’s conviction. 

I. BACKGROUND

Officer Walter of the Richmond Police Department stopped a scooter upon which Isaac 

was a passenger. During the traffic stop, Officer Walter conducted a pat down of Isaac and 

found a revolver in a pants pocket. Isaac was charged with possession of a firearm by a 

convicted felon, in violation of Code § 18.2-308.2. He pled not guilty. 

Isaac was convicted of possession of a firearm by a convicted felon. In support of this 

conviction, the Commonwealth entered an adjudication order showing that Isaac had been 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 
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adjudicated guilty of grand larceny when he was a juvenile. This order indicated that Isaac pled 

guilty and was found guilty of that offense. The order also contained this statement: “Juvenile 

advised of the contents of the petition(s), the right to counsel, right to a public hearing, privilege 

against self-incrimination, right to confront and cross-examine witnesses, right to present 

evidence, and right to appeal a final decision.” Preceding this text was a blank line for the court 

to check to indicate that the juvenile had been so advised. In this order, the line was not checked 

and Isaac asserted that because this line was not checked Isaac’s prior adjudication order failed 

to show that he knowingly and voluntarily waived his constitutional rights as required by Boykin 

v. Alabama, 395 U.S. 238, 242-43 (1969), when he previously pled guilty. Isaac thus contended 

that this order was insufficient to prove that he had been previously adjudicated of a felony and, 

therefore, the evidence was insufficient to support his conviction for possession of a firearm by a 

convicted felon. Appellant presented no evidence. The trial court determined that the 

adjudication order was sufficient and denied his motion. 

II. ANALYSIS

Our decision today is governed by our prior decisions in Samuels v. Commonwealth, 27 

Va. App. 119, 497 S.E.2d 873 (1998), Harris v. Commonwealth, 26 Va. App. 794, 497 S.E.2d 

165 (1998), Nicely v. Commonwealth, 25 Va. App. 579, 490 S.E.2d 281 (1997), and James v. 

Commonwealth, 18 Va. App. 746, 446 S.E.2d 900 (1994). It is well established that when an 

appellant collaterally attacks a prior conviction in a subsequent proceeding, “the Commonwealth 

is entitled to a presumption of regularity which attends the prior conviction because ‘every act of 

a court of competent jurisdiction shall be presumed to have been rightly done, till the contrary 

appears.’” Nicely, 25 Va. App. at 584, 490 S.E.2d at 283 (quoting Parke v. Raley, 506 U.S. 20, 

30 (1992)). 
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Essentially the same question as presented here was before this Court in James, when the 

appellant challenged the admissibility of a prior conviction because “the warrant form failed to 

indicate that his plea of guilty was knowing and voluntary.”1 James, 18 Va. App. at 750, 446 

S.E.2d at 902. There, this Court quoted the Supreme Court of the United States 

“Even when a collateral attack on a final conviction rests on 

constitutional grounds, the presumption of regularity that attaches 

to final judgments makes it appropriate [for the fact finder to 

presume that the conviction was obtained in compliance with the 

defendant’s constitutional rights and] to assign a proof burden to 

the defendant.” 

Id. at 751, 446 S.E.2d at 903 (quoting Parke, 506 U.S. at 30). This Court then held 

that the Commonwealth satisfies its burden of going forward when 

it produces a properly certified conviction from a court of 

competent jurisdiction which appears on its face to be a valid final 

judgment, provided that in all felony cases and those misdemeanor 

proceedings where imprisonment resulted, there is evidence 

establishing that the defendant was represented by or properly 

waived counsel in the earlier criminal proceeding. “Upon such a 

showing by the [Commonwealth] the doctrine of ‘presumption of 

regularity’ is then applied, and unless the defendant presents 

credible evidence that there is some constitutional infirmity in the 

judgment it must stand.” State v. Moeller, 511 N.W.2d 803, 809 

(S.D. 1994). A silent record or the mere naked assertion by an 

accused that his prior counseled plea was not made knowingly and 

intelligently is insufficient. 

Id. at 752, 446 S.E.2d at 904 (citations omitted). 

After James, this Court addressed a factual situation almost exactly like the one at bar, 

where there was a blank for the facts to be recorded but that blank was left unfilled. Samuels, 27 

Va. App. at 122, 497 S.E.2d at 875. In Samuels, appellant challenged the sufficiency of the 

evidence proving that he had been previously convicted of a felony because the warrant that was 

admitted into evidence contained no attorney’s name or initials on the space under the preprinted 

 1

 The only difference between the facts of James and those presented here is that in James

there was no preprinted language on the form, whereas here there was. For the reasons stated 

herein, we find this to be a distinction without a difference. 
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language: “ATTORNEY FOR THE ACCUSED.” Id. On the side of the warrant where the 

“Judgment of the Court” is recorded, both the names of the defense attorney and the judge were 

missing. Id. The Commonwealth, however, presented evidence in the form of a continuance 

filed in that case showing that an attorney had represented the accused.2

 Id. at 122, 497 S.E.2d at 

874-75. 

There, in affirming appellant’s conviction, we reiterated the presumption of regularity 

that attends a prior conviction that is collaterally attacked in a subsequent proceeding, stating that 

unless the defendant presents evidence rebutting the presumption 

of regularity, by which it may be presumed that the conviction was 

obtained in compliance with the defendant’s [constitutional rights], 

the Commonwealth has satisfied its burden of proving that the 

prior conviction was valid and, therefore, was admissible to 

establish a third offense in order to enhance punishment. Harris, 

26 Va. App. at 804, [497] S.E.2d at [169-70]. 

Samuels, 27 Va. App. at 123-24, 497 S.E.2d at 875. 

 We recognize that Boykin requires that a defendant knowingly and voluntarily waive the 

right to a jury trial, the right to confront his accusers, and the privilege against self-incrimination 

before a court may accept his guilty plea. 395 U.S. at 243. Moreover, while on direct appeal, 

the “‘record must show, or there must be an allegation and evidence which show, that an accused 

was offered counsel but intelligently and understandingly rejected the offer,’” id. at 242 (quoting 

Carnley v. Cochran, 369 U.S. 506, 516 (1962)), nothing requires that these waivers must be 

transcribed or otherwise contained in the order of a prior conviction or adjudication for that order 

to survive a collateral attack. Indeed, the Supreme Court of the United States addressed a similar 

issue in Parke, 506 U.S. at 29. There, the Supreme Court stated that 

Boykin involved direct review of a conviction allegedly based 

upon an uninformed guilty plea. Respondent, however, never 

 2

 The presence of this additional evidence, however, was not dispositive as this Court 

specifically stated that the trial court could have relied upon the presumption of regularity. 

Samuels, 27 Va. App. at 124, 497 S.E.2d at 875. 
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appealed his earlier convictions. They became final years ago, and 

he now seeks to revisit the question of their validity in a separate 

recidivism proceeding. 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. Johnson v. 

Zerbst, 304 U.S. 458, 464, 468 (1938). 

Id.

Finally, in addition to the presumption of regularity, Code § 19.2-307, which dictates the 

contents of a judgment order in Virginia, was promulgated after Boykin and provides inter alia

only that the “order shall set forth the plea, the verdict or findings and the adjudication and 

sentence, whether or not the case was tried by jury, and if not, whether the consent of the 

accused was concurred in by the court and the attorney for the Commonwealth.” This code 

section does not mandate that the Boykin colloquy be a part of the order. Id. Therefore, in light 

of the presumption of regularity, the absence of a mark on the order indicating that this colloquy 

had been given when there is no requirement that this information be on the order is not 

sufficient by itself to show that the prior plea had not been knowingly and voluntarily made. 

III. CONCLUSION

 For the foregoing reasons, we find no support in the law for Isaac’s contention that the 

absence of a mark indicating that he had knowingly and voluntarily waived his rights is credible 

evidence of a constitutional infirmity in the judgment. Therefore, we affirm Isaac’s conviction. 

Affirmed.