COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Cole man and Lemons ∗ Argued at Rich mond, Virginia

EDDIE LEE GILLS MEMORANDUM OPINION ∗∗ BY v. Record No. 0584-99-2 JUDGE SAM W. COLEMAN III JULY 5, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF GREENS VILLE COUNTY Robert G. O'Ha ra, Jr., Judge Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant. Amy L. Marshall, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

∗ Justice Lemons participated in the hearing and decision of this case prior to his investiture as a Justice of the Supreme Court of Virginia.

∗∗ Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Eddie Lee Gills was convicted following a bench trial of feloniously driving after having been declared an habitual offender, a second or subsequent offense, in violation of Code § 46.2-357. On appeal, Gills argues that the trial court erred by admitting the certified copy of a district court warrant, with certain dispositional notations thereon, as evidence of a prior habitual offender violation. He contends that the- 2 - notations on the warrant are insufficient to support the conviction because they do not prove a prior conviction of driving after having been declared an habitual offender. We agree that the notations on the warrant are insufficient to prove a prior conviction of driving after having been declared an habitual offender. Accordingly, we reverse the habitual offender conviction as a second or subsequent offense and remand the case to the trial court for sentencing as a first offense under Code § 46.2-357. BACKGROUND On review of a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, the prevailing party, and grant to it all reasonable inferences fairly deducible therefrom. See Commonwealth v. Jenkins , 225 Va. 516, 521, 499 S.E.2d 263, 265 (1998). On October 18, 1997, Gills was arrested and charged with feloniously driving after having been declared an habitual offender, a second or subsequent offense. At trial, the Commonwealth introduced a certified copy of an order of the Circuit Court for Stafford County to prove that Gills had been declared an habitual offender. The Commonwealth also proffered a certified copy of a warrant from a district court proceeding as evidence that Gills had previously been convicted of driving after being declared an habitual offender in violation of Code- 3 - § 46.2-357(B)(1). 1 Gills, relying on the holding in McBride v. Commonwealth , 24 Va. App. 30, 34-35, 480 S.E.2d 126, 128 (1997), objected to the introduction of the warrant. He argued that the warrant failed to indicate the offense of which he was convicted; thus, it failed to prove that he had been convicted of driving after having been declared an habitual offender in violation of Code § 46.2-357(B)(1). The trial court admitted the evidence, finding that McBride was factually distinguishable from the instant case. The Commonwealth offered no other evidence to prove the prior conviction.
ANALYSIS Gills argues that the trial court erred by admitting the warrant as evidence of his prior conviction because the warrant

1 The relevant portion of the warrant, which charged Gills with driving in Stafford County on February 14, 1997, after having been declared an habitual offender, also showed the following: The Accused Pleaded: ____ not guilty ____ nolo contendere X guilty And was TRIED and FOUND by me: ____ not guilty ____ guilty as charged ____ guilty of _____________ The warrant also contained notations that Gills was present and represented by counsel and that the judge imposed a $300 fine and a ninety day jail sentence with sixty days suspended for three years conditioned upon good behavior and keeping the peace.- 4 - was irrelevant, incompetent, and insufficient to prove the prior violation, an element which the Commonwealth was required to prove under the statute. Gills argues that, although the notation on the warrant indicates that Gills pled guilty and was sentenced, the warrant fails to indicate that Gills was found guilty of the charged offense. Despite the Commonwealth's assertion that Gills failed to challenge the sufficiency of the evidence below, we find that Gills preserved the issue for appeal. See Rule 5A:18; see also

Mounce v. Commonwealth , 4 Va. App. 433, 434, 357 S.E.2d 742, 743 (1987). As a basis for objecting to the admissibility of the warrant for the prior offense, Gills expressly relied on the holding in McBride . Gills discussed the holding in McBride and its applicability to this case. He argued that based on the warrant, "there's no indication that he was convicted of having been declared a habitual offender, a misdemeanor, which is a prerequisite and a necessary element of the charge that he is now facing in court." Although the trial court factually distinguished McBride and overruled the objection, the trial court was fully aware of the nature of Gills' objection and was aware that Gills was challenging the sufficiency of the evidence. Thus, the issue was preserved for appeal. "As with all elements of a crime, the burden is on the Commonwealth to prove the prior co nviction beyond a reasonable- 5 - doubt." McBride , 24 Va. App. at 33, 480 S.E.2d at 123. "The most efficient way to prove the prior . . . conviction is to offer in evidence an au thenticated copy of the prior conviction." Essex v. Commonwealth , 18 Va. App. 168, 171, 442 S.E.2d 707, 70 9 (1994). Here, Gills wa s charged with the felo ny of driv ing after having been declar ed an habitual offender, a second or subsequent offense, in violat ion of Code § 46 .2-357. An elem ent of the crime which the Commonwe alth had to prov e was a previous conviction for driving after ha ving been declared an habitual offender. "Evidence which 't ends to cast any light upon the subject of the inquiry' is rele vant" and admissib le, unless excluded by some other principle or rule of law or by statute. Cash v. Commonwealth , 5 Va. App. 506, 510, 364 S.E.2d 769, 771 (1988); see also Crews v. Commonwealth , 18 Va. App. 115, 11 8, 442 S.E.2d 407, 409 (1994) (finding that the admissibil ity of evidence is reviewed for an abuse of discretion); Evans-Smith v. Commonwealth , 5 Va. App. 188, 196, 361 S. E.2d 436, 441 (1987) (stating that the general rule for the ad missibility of eviden ce is that it be relevant and material ). Therefore, unde r the genera l rule, a warrant that shows that the defendant has been previo usly charged and convicted of drivin g after having been de clared an habitual offender is rele vant and admissib le. Although the warrant was admissible, Gi lls contends the warrant and the notati on thereon were insufficient to establish the pr ior conviction. Gills argues- 6 - that the warrant merely shows that he was ch arged with a violation of Code § 46.2-357 an d that he pled guilty and was se ntenced. Thus, he contends it does not prove that the court found him guilty of the charged offense as opposed to a lesser or lesser-include d offense. The Commonweal th, citing Savino v. Commonwealth , 239 Va. 534, 539, 391 S.E.3d 276, 278 (1990) , argues that a plea of guilty is a self-execu ting conviction and that the presumption of regulari ty justified the tria l court's co nclusion that Gills pled guilty to the char ged offense. We find that this case is controlled by our holding in McBride . In McBride , the defendant was convicted of a second offense of driving under the infl uence. At trial, the Commonwealth introduced a certified co py of an arrest warrant, indicating that the defendant was charged with previously violating Code § 18.2-2 66. The warrant cont ained a prin ted form upon which the district court had repo rted the procee dings. The form indicated that th e defendant was charged, pled not guilty, and was sentenced. However, the form was blank in the space where the court is to designate whet her the defendan t was tried and found guilty of the charged offens e. The Commonwe alth offered no other evidence to prove a prior co nviction. The defendant moved to strike the evidence , arguing that the ev idence did not prove that he had been previously convicted of violating Code- 7 - § 18.2-266. The tria l court denied the mo tion and found the defendant guilty of the second offense. We reversed McBrid e's conviction, finding that the evidence was insufficient to prove that he had been previous ly convicted of violating Code § 18.2-2 66. We found that the warrant from the previous proceeding failed to pr ove that the defendant was convicted of the charge d offense, rather than some other offense or a lesser-inclu ded offense. Mo reover, we declin ed to infer or speculate the na ture of the actual judgment of conv iction based on the sentence imposed by the trial court. "It is the firmly es tablished law of this Commonwealth that a trial court spea ks only through its written or ders." Davis v. Mullins , 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996) (citation omitted). Here, the warrant proffe red by the Commonwealth indicated only that Gills was char ged with violating Code § 46.2-357(B)(1) , that he pled guilty at that proceedi ng, and that he was sentenced. The warrant cont ained no notation indicating of what offense Gills was convicted. Of ten charges are amended or a defendant is permitted to plead guilty to a reduced charge other than the charged of fense. So that district court judges will not have to prepare dispositional orders for each case, the Supreme Court provides pre-pr inted forms on the wa rrants which contain blocks or blanks that enable judges to specif y, by merely checking the section or filling in a blank, the dispos ition of a case, the- 8 - offense of which the ac cused is found guilty, and the amou nt of a fine and/or jail sent ence. Moreover "every act of a court of competent juri sdiction shall be presumed to ha ve been rightly done, till the cont rary appears." Nicely v. Commonwealth , 25 Va. App. 579, 584, 490 S. E.2d 281, 283 (1997) (interna l quotation and citation omitted). Bu t, we apply a presumption of regularity where a proceeding appears in all respects regular on its face and some procedural issu e is being challenged , such as whether a defendant was repr esented by counsel in a prior convic tion. The presumption does not apply where the proceeding is irregular on its face, in that it fails to specify th e offense fo r which a defendant was co nvicted. In the abse nce of a notation or specification on the warrant stat ing the offense of which Gills was convicted, we will not presume or surmis e as to the offense of which Gills was convicted. Accordingly, we ho ld that the warrant was insuffic ient to prove the prior conviction. We, theref ore, reverse Gills' conviction and rema nd the case to th e trial court for resentenci ng. Reversed and remanded.