COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and McClanahan

WILLIAM ARNOLD ROBB, JR. MEMORANDUM OPINION * BY v. Record No. 1310-03-2 JUDGE ELIZABETH A. McCLANAHAN JULY 6, 2004 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY Catherine C. Hammond, Judge (John W. Parsons; Law Office of Wood and Wood, P.C., on brief), for appellant. Appellant submitting on brief. (Jerry W. Kilgore, Attorney General; Donald E. Jeffrey, III, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
William Arnold Robb, Jr. appeals his convict ion for operating a motor vehicle after having been declared an habitual offender, in violation of Code § 46.2-357. Robb contends that the evidence was insufficient to support his conviction because it was not proven that he had received actual notice that he had previously been declared an habitual offender and directed not to drive. For the reasons that follow, we affirm the judgment of the trial court. “When the sufficiency of the evidence is challe nged on appeal, it is well established that we must view the evidence in the light most fa vorable to the Commonwea lth, granting to it all reasonable inferences fairly deducible therefrom.” Jones v. Commonwealth , 13 Va. App. 566, 572, 414 S.E.2d 193, 196 (1992). Viewed in this light , the evidence established the following: on September 30, 2002, State Trooper Brandon Blakey observed a ve hicle parked on the right

* Pursuant to Code § 17.1-413, this opinion is not design ated for publication.- 2 - shoulder of an exit ramp on I-64, that was “backi ng up into the travel lane where [the trooper] was exiting.” The trooper imme diately stopped the driver, who was the appellant Robb. The trooper asked Robb for his driver’s license, whic h Robb did not have. The trooper asked Robb if “he was suspended,” to which Robb responded that he probably was. The trooper then asked “if someone had taken his driver’s license away at one point or another,” an d Robb stated that the courts did. When the trooper asked why Robb’s license may have been taken by the courts, Robb responded that he thought it was related to his car’s inspections or registration. Trooper Blakey checked Robb’s driving reco rd through the Virginia Department of Motor Vehicles (DMV), and discovered that R obb’s status was that of a revoked habitual offender. The trooper arrested Robb for drivi ng after having been determined an habitual offender, in violation of Code § 46.2-357. After being placed under arrest and read his Miranda rights, Robb told the trooper th at he had not yet gotten his licen se reinstated. The trooper then asked Robb if he had “ever been convicted as a habitual offender before in court.” Robb said that “yes, he was.” On January 13, 2003, a grand jury indicted Robb, charging that he “unlawfully and feloniously operate[d] a motor ve hicle on the highways . . . after having been found to be an habitual offender . . . while the order of the Cour t prohibiting such operation was still in effect.” After a bench trial, Robb was c onvicted of this offense, and was subject to enhanced penalties because, as charged, this was his se cond or subsequent offense. See Code § 46.2-357(B)(3). Under established principles, this Court will only disturb Robb’s conviction if it is “plainly wrong or without evidence to support it.” Jones , 13 Va. App. at 572, 414 S.E.2d at 196. To obtain a conviction for driving a motor ve hicle subsequent to being determined an habitual offender, the Commonwealth is required to prove that the defendan t had actual notice he had been declared an habitual offender and that he had been ordered not to drive. Reed v.- 3 - Commonwealth, 15 Va. App. 467, 468, 424 S.E.2d 718, 718 (1992). Robb argues that the evidence at trial was insufficient to convict him, claiming that there was no evidence that he had actual notice of his habitual offender status and had been ordered not to drive. A DMV transcript of Robb’s driving hist ory, which the Commonwealth introduced at trial, states that Robb was declared an habitu al offender on August 7, 1996. According to that transcript, several driving-re lated convictions and suspensi ons followed this adjudication, including a conviction on January 23, 1998 under the same code section under which he was convicted in this case, operating a vehicle afte r having been declared an habitual offender. We need not resolve the question whether th e evidence showed Robb received notice of the proceeding to declare him an habitual o ffender in 1996. His subsequent conviction for driving after having been so declared, refl ected in the DMV transcript and Robb’s own statements to the trooper, demonstrates that Robb had actual notice of his st atus as an habitual offender and been directed not to drive. Robb was convicted in 1998 in Richmond General District Court of operating a vehi cle after initially being declared an habitual offender over one year earlier. The transcript shows that Robb was present at this tria l and was represented by counsel. No claim was made at trial or on appeal that the transcript was unreliable or inaccurate. As is evident by the colloquy followi ng Robb’s motion to strike at tr ial, the trial court concluded that Robb was informed by his 1998 conviction, whic h he received in person and which required a mandatory jail term, that he had previously been declared an habitual offender and directed not to drive. 1

1 Although Robb was eligible beginning in 1999 to petition to have his driving privileges reinstated, “‘the habitual offender status of th e person so declared continues until that person successfully petitions the court to have that status removed and his privilege to drive restored.’” Norman v. Commonwealth , 41 Va. App. 628, 635, 587 S.E.2d 742, 745 (2003) (quoting Varga v. Commonwealth , 260 Va. 547, 551, 536 S.E.2d 711, 714 (2000)). No evidence was presented that Robb ever petitioned the court to have his status removed and privileges restored.- 4 - Even if the trial court ha d not relied on the DMV transc ript to establish Robb’s 1998 conviction in order to conclude that Robb knew he had previously been declared an habitual offender and directed not to drive, Robb’s statemen ts provide an alternative basis from which the trial court could reasonably fi nd that Robb knew of this prior conviction. According to the trooper, Robb was asked “if he’s ever been . . . co nvicted of a habitual offender before in court,” and Robb stated that he was. He also stated after arrest that he ha d never had his license reinstated. “The credibility of witnesses and th e weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v. Commonwealth , 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The statements Robb made to the trooper are evidence from whic h the court, acting rati onally, could conclude that 1) because Robb was aware of his prior conv iction for driving as an habitual offender, he was aware of his habitual offender status, and 2) because Robb was aware that his license had never been reinstated, he was aware of having been ordered not to drive. 2 Considering the evidence in the light most favorable to the Co mmonwealth, there was sufficient evidence presented at trial to permit th e trial court to concl ude that Robb had actual notice that he had been declared an habitual o ffender and could not lawfully drive. Accordingly, we affirm the judgment of the trial court. Affirmed.

2 No claim is made in this case that the evidence was insufficient that Robb’s driving privileges had indeed been revoked. The fact s and claim on appeal in this case are thus distinguishable from the facts and cl aim on appeal in Rose v. Commonwealth , 265 Va. 430, 578 S.E.2d 758 (2003). In that case, the Supreme Cour t of Virginia reversed a conviction where, completely apart from the notice question, there was no evidence that the appellant’s license was actually suspended – only that he believed it was, a nd had previously pled guilty to driving as an habitual offender. 265 Va. at 435-46, 578 S.E.2d at 761. In the instant case, there ar e numerous indications in the DMV transcript that Robb’s license was actually suspended, and was suspended for an “indefinite” period of time. There is no evidence that it had ever been reinstated.