                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


ROBIN LYNN CAIN
                                      MEMORANDUM OPINION * BY
v.        Record No. 2737-97-4        JUDGE RICHARD S. BRAY
                                        SEPTEMBER 29, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SHENANDOAH COUNTY
                 Perry W. Sarver, Judge Designate
          David H. N. Bean for appellant.

          Eugene Murphy, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     Robin Lynn Cain (defendant) was convicted by a jury for

felonious petit larceny pursuant to Code § 18.2-104.   On appeal,

defendant complains that the evidence failed to establish that

all prior convictions necessary to the subject offense resulted

from prosecutions during which she was assisted by counsel.

Finding no error, we affirm the verdict.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary for

disposition of the appeal.

     During trial, the Commonwealth offered several exhibits to

prove the requisite prior larceny convictions.   Over defendant's

objection, the court admitted into evidence a certified and

authenticated copy of a "Warrant of Arrest," together with the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
related order of the Fairfax County General District Court, which

established a previous conviction of defendant for petit larceny

in that jurisdiction.   The preprinted form reflected a check mark

at the words "Defendant's Attorney (Name)," without naming

counsel, and illegible notations below "Attorney for the

Accused."   The order also assessed "Costs" of $100 for a "Court

Appointed Attorney."    Nevertheless, defendant contends that the

exhibit failed to establish that she was represented by counsel

in such prosecution, although she presented no evidence on the

issue during the guilt phase of trial.
     It is well established that,
          "[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." 1 However, when . . . a prior
          conviction is collaterally attacked 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[,]'" "'[e]ven when
          a collateral attack on a final conviction
          rests on constitutional grounds . . . .'"
          Thus, 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 right to counsel, 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

     1
      The briefs presuppose that incarceration attended the prior
misdemeanor conviction, although the record is unclear.



                                - 2 -
          punishment. 2


Samuels v. Commonwealth, 27 Va. App. 119, 123-24, 497 S.E.2d 873,

875 (1998) (citations omitted); see Harris v. Commonwealth, 26

Va. App. 794, 803-04, 497 S.E.2d 165, 169-70 (1998); Nicely v.

Commonwealth, 25 Va. App. 579, 583-84, 490 S.E.2d 281, 283

(1997).

     Here, the prior conviction in dispute was clearly clothed

with the presumption of regularity, unrebutted by defendant

during trial.    Moreover, like Samuels, the instant record
supports the trial court's implicit finding that defendant was

actually represented by counsel in the earlier proceeding.      Under

such circumstances, the trial court properly received the exhibit

into evidence.

     Accordingly, we affirm the conviction.

                                                    Affirmed.




     2
      Defendant's testimony at the sentencing phase of trial was
immaterial to the jury's previous finding of guilt. Tyler v.
Commonwealth, 21 Va. App. 702, 709, 467 S.E.2d 294, 297 (1996).




                                - 3 -
