                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED


              Argued at Chesapeake, Virginia


              TIMOTHY DALE WADFORD
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1641-16-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                                OCTOBER 31, 2017
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                                            Robert H. Sandwich, Jr., Judge

                               James L. Grandfield, Public Defender, for appellant.

                               Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     A judge of the Circuit Court of the City of Suffolk (“trial court”) convicted appellant

              Timothy Dale Wadford of driving or operating a motor vehicle while intoxicated, third offense

              within ten years.1 He received a sentence of three years in prison with all but ninety days

              suspended. On appeal, he argues that the trial court erred when it admitted a 2012 conviction

              order as evidence of that conviction. He also argues the evidence was not sufficient to prove that

              he was too impaired to operate his vehicle. For the following reasons, we affirm.

                                                        I. BACKGROUND

                     A gas station employee called the Suffolk Police to report that someone in the parking lot

              was “slouched over” in the driver’s seat of a car and needed assistance. She said that he was not

              moving and that she and her co-workers “weren’t sure if he was dead or not” (although she

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Wadford also was convicted of possession of heroin, but that conviction is not at issue
              in this appeal.
observed that he began to move during the call). She also believed someone had been injecting

heroin in the gas station’s bathroom. An officer responded and found Wadford in the driver’s

seat of a vehicle with the key in the ignition and the engine running. The officer noted that

Wadford’s eyes were watery and glassy, and she noted a faint smell of alcohol. Wadford

explained that he was at the gas station to use the bathroom. He confirmed that a beverage in his

vehicle’s cup holder was beer, but claimed that “he wasn’t drinking it right then.” He explained

that he had been drinking with a friend prior to arriving at the gas station. He told the officer that

he had taken prescribed diazepam (the generic name for Valium) and oxycodone that morning.

After the officer reviewed the prescriptions’ labels with him, Wadford agreed that he probably

should not be driving after taking those medications. Based on this evidence, in addition to

Wadford’s performance on several field sobriety tests, he was arrested for driving under the

influence. The arrest took place at approximately 2:00 p.m., about forty minutes after the police

arrived.

       At the police station, a breath test showed no alcohol in Wadford’s system. The officer

took him to a hospital for a blood draw, which took place at 6:10 p.m. Subsequent laboratory

analysis showed the presence and concentrations of morphine, diazepam, nordiazepam,

oxazepam, temazepam, and diphenhydramine. An expert in forensic toxicology who analyzed

Wadford’s blood testified that morphine can be present in blood after a patient has used heroin.

She explained that the next four substances were consistent with taking Valium: diazepam is its

generic name; nordiazepam, oxazepam, and temazepam are byproducts of its breakdown. She

noted that Valium could cause “dizziness, sedation, [and] difficulty with tasks requiring

sensorimotor skills.” Finally, she explained that the presence of diphenhydramine is consistent

with taking Benadryl, which alone “can cause some sedation,” but becomes a more significant

problem when combined with the other drugs. The expert noted that combining these drugs

                                                -2-
would exacerbate each of their depressant effects on the central nervous system, resulting in

“drowsiness, sedation, slurred speech” and other lethargic behavior. Together, these drugs

“would have ultimately adverse effects on someone’s driving ability.”

       At trial, the Commonwealth introduced two prior Virginia DUI conviction orders from

2007 and 2012 as evidence that the current offense would be Wadford’s third DUI within ten

years. Wadford objected, arguing that the 2012 conviction was uncounseled because, in a place

on the order designated for the name of the defendant’s attorney, only “PD” was written. In

addition, under “Plea of Accused,” the convicting court had checked “guilty,” but failed to also

check the adjacent box reading “Plea voluntarily and intelligently entered after the defendant was

apprised of his right against compulsory self-incrimination and his right to confront the witnesses

against him.”2 Despite that omission, the order indicates that the convicting court tried Wadford

and found him guilty as charged.

                                           II. ANALYSIS

                                   A. The 2012 Conviction Order

       Wadford argues that the trial court erred in admitting the 2012 conviction order. We

review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Jennings

v. Commonwealth, 65 Va. App. 669, 673, 779 S.E.2d 864, 866 (2015). In his first assignment of

error, Wadford argues that the 2012 order indicated that his conviction was uncounseled because

it failed to name the attorney from the Public Defender’s Office who represented him. On

appeal, Wadford also contends that the 2012 order “did not show that Wadford’s guilty plea in

that case was voluntarily and intelligently made after being apprised of his right against

compulsory self-incrimination and his right to confront witnesses against him.” Acknowledging

       2
         Wadford did not challenge the court’s failure to check the box at trial. In addition,
although both the 2007 and 2012 conviction orders bear this same oversight, Wadford challenges
only the 2012 order.

                                               -3-
his failure to preserve this objection in the trial court, he asks us to consider this assignment of

error pursuant to the ends of justice exception to Rule 5A:18.

       The Commonwealth bears the burden of proving the existence of prior convictions when,

as here, such convictions are elements of the charged offense. James v. Commonwealth, 18

Va. App. 746, 752, 446 S.E.2d 900, 903 (1994). It may do so by offering a valid prior

conviction order. Id. at 746, 446 S.E.2d at 904. Prior conviction orders are entitled to a

“presumption of regularity,” because “every act of a court of competent jurisdiction shall be

presumed to have been rightly done, till the contrary appears.” Samuels v. Commonwealth, 27

Va. App. 119, 123, 497 S.E.2d 873, 875 (1998) (quoting Nicely v. Commonwealth, 25 Va. App.

579, 584, 490 S.E.2d 281, 283 (1997)). A defendant must offer affirmative evidence to rebut the

presumption of regularity, James, 18 Va. App. at 752, 446 S.E.2d at 904, and may only

collaterally attack a prior conviction by arguing there was an actual denial of counsel, Vester v.

Commonwealth, 42 Va. App. 592, 597, 593 S.E.2d 551, 553 (2004) (citing Daniels v. United

States, 532 U.S. 374, 378 (2001); Custis v. United States, 511 U.S. 485, 496 (1994); United

States v. Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996)).

                                    1. Defense Counsel’s Name

       First, Wadford attempts to collaterally attack the validity of his prior conviction by

arguing that the 2012 conviction order fails to show he was represented by counsel because “PD”

was written in as “defendant’s attorney.” Although Wadford equates the failure to name the

specific public defender who represented him at the 2012 DUI proceedings with failure to

receive representation, he offers no evidence to suggest that he was actually unrepresented.

Therefore, he fails to rebut the presumption of regularity. Furthermore, even without relying

solely on that presumption, other evidence indicated that Wadford was represented. The

preceding page of the same 2012 conviction order indicates that the “Public Defender” was

                                                 -4-
appointed as the “Attorney for the Accused,” consistent with the abbreviation “PD” for the

“defendant’s attorney” (and mirroring that “CA,” for Commonwealth’s Attorney, was written as

the “prosecuting attorney”). The Commonwealth also introduced evidence that the judge in the

2012 case granted Wadford’s request for court-appointed representation. Finally, at trial,

defense counsel conceded that “there’s no doubt the public defender was appointed.” Because

Wadford failed to introduce any evidence indicating that he was unrepresented by counsel during

the 2012 proceedings, and in light of the uncontroverted evidence that he was, in fact,

represented by a public defender, he may not collaterally attack that prior conviction.

                                2. Voluntary and Intelligent Plea

       Wadford also challenges the 2012 conviction order because a box on the form indicating

he entered his plea voluntarily and intelligently was left unchecked. This argument fails for

several reasons. Most importantly, as Wadford concedes, the argument is procedurally

defaulted. See Rule 5A:18 (requiring that an objection be “stated with reasonable certainty at the

time of the ruling” in order to preserve an issue for appellate review). We may consider such

defaulted arguments under the “ends of justice” exception, but this exception “is narrow and is to

be used sparingly.” Delaney v. Commonwealth, 55 Va. App. 64, 68, 683 S.E.2d 834, 836 (2009)

(quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 10 (1989)). We invoke it

only when “a miscarriage of justice” has occurred, meaning a defendant was convicted for

“conduct that was not a criminal offense or the record . . . affirmatively prove[s] that an element

of the offense did not occur.” Id. No miscarriage of justice occurred here. As such, the ends of

justice exception does not apply and the argument is waived.

       Even if Wadford preserved this issue, the omission on the prior conviction order does not

indicate that Wadford was denied counsel. Therefore, it is also an improper collateral attack on

the 2012 conviction. See Vester, 42 Va. App. at 597, 593 S.E.2d at 553 (noting that ineffective

                                                -5-
assistance of counsel is not sufficient grounds to collaterally attack a prior conviction). Finally, a

mere omission from a prior conviction order, standing alone, does not rebut the presumption of

regularity. James, 18 Va. App. at 752, 446 S.E.2d at 904. For all of these reasons, we find no

error and conclude the trial court did not abuse its discretion by admitting the 2012 conviction

order.

                                   B. Sufficiency of the Evidence

         Wadford argues that the evidence was not sufficient to show that he was too impaired to

operate his vehicle because he was not too impaired “to sit passively in a car with the engine

running.” When examining the sufficiency of the evidence supporting a conviction, “we view

the evidence, and all inferences reasonably drawn from it, in the light most favorable to the

Commonwealth. ‘It is our duty to affirm the trial court’s judgment unless that judgment is

plainly wrong or without evidence to support it.’” Reid v. Commonwealth, 65 Va. App. 745,

753, 781 S.E.2d 373, 377 (2016) (citation omitted) (quoting Muhammad v. Commonwealth, 269

Va. 451, 536, 619 S.E.2d 16, 65 (2005)).

         Wadford concedes that his actions here, sitting in the driver’s seat with the key in the

ignition, clearly qualify as “operation” under existing law addressing alcohol-based DUI

convictions. Sarafin v. Commonwealth, 288 Va. 320, 327, 764 S.E.2d 71, 75 (2014) (finding

that defendant was operating vehicle because key in ignition while seated in the driver’s seat

constituted having “actual physical control”). Nevertheless, because Code § 18.2-266 contains

additional language regarding impairment in the context of drugs as compared to alcohol,3 he


         3
         As pertinent here, it prohibits driving or operating a motor vehicle “while such person is
under the influence of any narcotic drug or any other self-administered intoxicant or drug of
whatsoever nature, or any combination of such drugs, to a degree which impairs his ability to
drive or operate any motor vehicle, engine or train safely.” Code § 18.2-266(iii) (emphasis
added). Some other subsections regarding impairment due to alcohol or specific substances do
not contain this italicized language, and instead specify blood concentrations.

                                                 -6-
argues this Court should establish a different definition of “operation” when the impairment is

the result of drug use. Wadford does not present, and we do not see, any appreciable difference

between the definition of “operating” a vehicle while impaired due to drug use as opposed to

alcohol consumption. We are accordingly bound by our Supreme Court’s precedent, and find the

evidence sufficient to prove Wadford was operating the vehicle here.4 For these reasons, we find

no error.

                                         III. CONCLUSION

       The trial court did not err in admitting the prior conviction order or in finding the

evidence sufficient to convict. Accordingly, we affirm.

                                                                                          Affirmed.




       4
          Wadford’s argument on brief could also be read to argue that, in the context of
impairment due to use of multiple substances, the Commonwealth cannot prove impairment
solely by presenting evidence that a defendant’s blood concentrations exceeded the statutorily
proscribed levels, but rather must offer other evidence of impairment. There is little question
that the Commonwealth did so here and established that Wadford was impaired as a result of his
drug usage. This evidence includes the call from the gas station employees reporting Wadford
being “slouched” over his steering wheel, the evidence that he had been using heroin, the
officer’s observations of Wadford’s physical appearance and performance on the field sobriety
tests, Wadford’s admitting to having taken medications that could adversely affect his ability to
drive, and finally, the results of his blood test and accompanying expert testimony about the
expected adverse effects those substances, in those concentrations, would have on one’s ability
to operate a motor vehicle.

                                                -7-
