COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

JULIE KAY NICELY 

 OPINION BY 

v. Record No. 0576-96-3 JUDGE RICHARD S. BRAY 

 SEPTEMBER 16, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY 

Duncan M. Byrd, Jr., Judge 

 Ronald W. Vaught (Parks & Vaught, P.C., on 

brief), for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Julie Kay Nicely (defendant) was convicted in a bench trial 

of driving under the influence of alcohol, a second like offense 

committed within five years, and imposed the attendant enhanced 

punishment. On appeal, defendant complains that the trial court 

erroneously relied solely upon a Department of Motor Vehicles 

(DMV) transcript to establish the requisite prior offense, 

finding such conviction constitutional without affirmative proof 

that defendant had been represented by or waived counsel or had 

been punished without incarceration. Concluding that the earlier 

offense was properly proven, we affirm the trial court. 

 It is uncontroverted that defendant operated a motor vehicle 

in Alleghany County on August 26, 1995, while under the influence 

of alcohol (DUI), in violation of Code § 18.2-266. See Code 

§ 18.2-269(A). Seeking the enhanced punishment for a "second 

offense committed within less than five years after a first 
 2 

offense under Code § 18.2-266," Code § 18.2-270,2

 the 

Commonwealth introduced into evidence a DMV "transcript" which 

reported a timely prior conviction of defendant for DUI in the 

General District Court of Roanoke County, Virginia. The parties 

agree, however, that the transcript did not indicate "(a) whether 

Defendant was represented by counsel or (b) whether she was 

sentenced to jail, with time to serve . . . ," and the record 

provides no further particulars of the earlier proceeding. 

THE PRIOR CONVICTION

 Code § 18.2-270 prescribes several penalties for DUI in 

violation of Code § 18.2-266, enhanced for second and subsequent 

offenses. However, to convict and punish an accused for 

successive violations, "the prior offense[s] must be charged and 

proven." Calfee v. Commonwealth, 215 Va. 253, 255, 208 S.E.2d 

740, 741 (1974) (quoting Commonwealth v. Ellett, 174 Va. 403, 

413, 4 S.E.2d 762, 766 (1939)). In aid of such proof, Code 

§ 46.2-384 provides that: 

 Every law-enforcement officer who has 

arrested any person for (i) [DUI] . . . shall 

request from the [DMV] an abstract or 

 

 2Code § 18.2-270 provides, in relevant part, that: 

 Any person convicted of a second offense 

committed within less than five years after a 

first offense under § 18.2-266 shall be 

punishable by a fine of not less than $200 

nor more than $2,500 and by confinement in 

jail for not less than one month nor more 

than one year. Forty-eight hours of such 

confinement shall be a mandatory, minimum 

sentence not subject to suspension by the 

court. 
 3 

transcript of the person's driver's 

conviction record on file at the 

[DMV]. . . . In any such prosecution wherein 

a necessary element of the offense charged is 

that the defendant was previously convicted 

of the same or similar offense, . . . (2) 

that portion of the transcript relating to 

the relevant prior conviction[] shall be 

prima facie evidence of the facts stated 

therein with respect to the prior offense. 

Id. (emphasis added). Prima facie evidence is "'sufficient to 

raise a presumption of fact or establish the fact in question 

unless rebutted.'" Moffitt v. Commonwealth, 16 Va. App. 983, 

987, 434 S.E.2d 684, 687 (1993) (quoting Babbitt v. Miller, 192 

Va. 372, 379-80, 64 S.E.2d 718, 722 (1951)). 

 Here, defendant was arrested and prosecuted for DUI, 

"subsequent offense," a violation of Code § 18.2-266, which, if 

proven, would mandate an enhanced penalty. Thus, "a necessary 

element of the offense charged" was a previous conviction for the 

"same or similar offense," a circumstance clearly contemplated by 

Code § 46.2-384, permitting the introduction of "that portion of 

[defendant's DMV] transcript relating to the relevant prior 

conviction" as "prima facie evidence of the facts stated 

therein." Code § 46.2-384. Accordingly, the disputed transcript 

sufficiently proved defendant's earlier DUI conviction until 

"'that . . . evidence . . . be repelled.'" Moffitt, 16 Va. App. 

at 987, 434 S.E.2d at 687 (quoting Babbitt, 192 Va. at 380, 64 

S.E.2d at 722); see Nesselrodt v. Commonwealth, 19 Va. App. 448, 

451-52, 452 S.E.2d 676, 678 (1994) (en banc). 
 4 

THE ENHANCED PUNISHMENT

 Nevertheless, defendant contends that the Commonwealth's 

evidence must also affirmatively establish that the earlier 

conviction was free from constitutional infirmity by proof that 

she (1) served no jail time, or (2) either waived her Sixth 

Amendment right to counsel or was represented by counsel. 

Because the transcript relied upon by the Commonwealth was silent 

on these incidents of the previous proceedings, defendant 

challenges the sufficiency of the evidence to support imposition 

of an enhanced punishment. 

 It is now well established that a prior uncounseled 

misdemeanor conviction that did not result in actual 

incarceration may constitute proper evidence of recidivism, 

although punishment for the enhanced offense may include jail or 

imprisonment. See Nichols v. United States, 511 U.S. 738, 746-49 

(1994); see also Griswold v. Commonwealth, 252 Va. 113, 116-17, 

472 S.E.2d 789, 790-91 (1996). Conversely, however, a previous 

misdemeanor conviction attended by incarceration is 

constitutionally offensive and may support neither guilt nor 

enhanced punishment for a later offense, unless the accused 

either waived or was represented by counsel in the earlier 

proceeding. See Nichols, 511 U.S. at 746 (citing Scott v. 

Illinois, 440 U.S. 367, 372-74 (1979)); see also Griswold, 252 

Va. at 116-17, 472 S.E.2d at 790-91. Although we have not 

heretofore allocated the burden of proof in assessing compliance 
 5 

with defendant's Sixth Amendment right to counsel in the absence 

of evidence of both counsel and incarceration, we have approved 

shifting the burden to a defendant challenging the 

constitutionality of a prior guilty plea under such 

circumstances. See James v. Commonwealth, 18 Va. App. 746, 

750-52, 446 S.E.2d 900, 902-04 (1994); see also Parke v. Raley, 

506 U.S. 20, 29 (1992) (guilty plea constitutes waiver of Sixth 

Amendment rights to jury trial and confrontation and Fifth 

Amendment privilege against self-incrimination). 

 In James, we rejected the argument that the Commonwealth's 

proof of a prior DUI for enhancement purposes in another 

prosecution must affirmatively establish that James had 

"knowingly and intelligently waived his constitutional rights" in 

tendering his guilty plea to the previous offense. Id. at 749, 

446 S.E.2d at 902 (citing Boykin v. Alabama, 395 U.S. 238, 242 

(1969)). We acknowledged that, on direct appeal of a conviction, 

"no waiver of constitutional rights will be presumed and a silent 

record cannot be considered a waiver," but distinguished our 

standard of review of a conviction under collateral attack in a 

subsequent trial. Id. at 750-51, 446 S.E.2d at 902-03. In the 

latter 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.'" Id. at 751, 

446 S.E.2d at 903 (quoting Parke, 506 U.S. at 29). 
 6 

 Thus, 

 the Commonwealth satisfies its burden 

. . . 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. 

Id. at 752, 446 S.E.2d at 904 (emphasis added). "A silent record 

or the mere naked assertion by an accused" that his 

constitutional rights were violated is "insufficient" to rebut 

the presumption of validity. Id. Here, the transcript 

established defendant's previous misdemeanor conviction, without 

suggestion of imprisonment, a circumstance which did not 

implicate the Sixth Amendment right to counsel in a collateral 

review of the conviction, see Nichols, 511 U.S. at 746, and 

entitled the Commonwealth to the presumption of regularity 

without offending due process. See Parke, 506 U.S. at 27-34; 

James, 18 Va. App. at 750-52, 446 S.E.2d at 902-04. 

 Defendant's reliance on Griswold v. Commonwealth, 252 Va. 

113, 472 S.E.2d 789 (1996), is misplaced.3

 In Griswold, the 

record affirmatively disclosed that Griswold had been imprisoned 

for a prior misdemeanor conviction, rendered without the benefit 

 

 3Defendant also cites Sargent v. Commonwealth, 5 Va. App. 

143, 360 S.E.2d 895 (1987), a decision of this Court which relied 

upon Baldasar v. Illinois, 446 U.S. 222 (1980), overruled by 

Nichols v. United States, 511 U.S. 738 (1994). 
 7 

of counsel. See id. at 114-15, 472 S.E.2d at 790. The 

conviction, therefore, was not favored with a presumption of 

regularity. In contrast, the transcript of defendant's disputed 

misdemeanor conviction reflects neither the imposition of jail 

time nor the absence of counsel. 

 Similarly, our view is not inconsistent with Burgett v. 

Texas, 389 U.S. 109 (1967), and its progeny. The evidence of the 

previous conviction in Burgett included two "records," one 

reciting that the accused appeared "'without Counsel,'" and the 

other making no reference to counsel. Id. at 112. The Court, 

therefore, reasoned that the "records of . . . conviction on

their face raise a presumption that petitioner was denied his 

right to counsel." Id. at 114 (emphasis added). The record in 

this instance reflects nothing with respect to counsel, 

conflicting or otherwise. 

 In Parke v. Raley, 506 U.S. 20 (1992), which, like James, 

addressed a challenge to the evidence of voluntariness incidental 

to a prior guilty plea, the accused urged a broad reading of 

Burgett to support "the proposition that every previous 

conviction used to enhance punishment is 'presumptively void' if 

waiver of [any] claimed constitutional right does not appear from 

the face of the record." Id. at 31. However, the Court refused 

to "read the decision [in Burgett] so broadly," emphasizing that 

 [a]t the time the prior conviction at issue 

in Burgett was entered, state criminal 

defendants' federal constitutional right to 

counsel had not yet been recognized, and so 

it was reasonable to presume [from a silent 
 8 

record] that the defendant had not waived a 

right he did not possess. . . . [T]he same 

cannot be said about a record that, by virtue 

of its unavailability on collateral review, 

fails to show compliance with . . . 

well-established [constitutional] 

requirements. 

Id. Thus, the Court's distinction between Parke and Burgett

arose from jurisprudential evolution rather than the disparate 

treatment of coequal constitutional safeguards. 

Parke clearly instructs that, "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 to assign a proof burden to the defendant." Id. 

Surveying the practices followed in both guilty plea and

right-to-counsel cases, the Court expressly recognized that 

"state courts . . . have allocated proof burdens differently," 

noting with approval that some 

 place the full burden on the prosecution. 

Others assign the entire burden to the 

defendant once the government has established 

the fact of conviction. Several, like 

Kentucky [the state practice at issue in 

Parke], take a middle position that requires 

the defendant to produce evidence of 

invalidity once the fact of conviction is 

proved but that shifts the burden back to the 

prosecution once the defendant satisfies his 

burden of production. 

Id. at 32-33 (citations omitted). The Court concluded that 

"[t]his range of contemporary state practice certainly does not 

suggest that allocating some burden to the defendant is 
 9 

fundamentally unfair." Id. at 33.4

 Accordingly, the record of a prior misdemeanor conviction, 

silent with respect to related incarceration or representation of 

the accused by counsel, is entitled to a presumption of 

regularity on collateral attack in a recidivist proceeding and 

may provide sufficient evidence to support the imposition of an 

enhanced punishment. 

 Affirmed.

 

 4In Parke, see 506 U.S. at 33, the Court implicitly approved 

a state practice conferring "a presumption of regularity [on a 

prior felony conviction], including the presumption that the

defendant was represented by counsel." Utah v. Triptow, 770 P.2d 

146, 149 (Utah 1989) (emphasis added); accord Montana v. Okland, 

___ P.2d ___, ___ (Mont. May 29, 1997) (in collateral review of 

prior conviction for constitutionality, Burgett and Parke permit 

state to allocate burden of proof on issue of right to counsel); 

see also Idaho v. Beloit, 844 P.2d 18, 19 (Idaho 1992) (applying 

same principles to waiver of rights on counseled prior guilty 

plea).