                                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


MARK SELORM PONGO
                                                              MEMORANDUM OPINION∗ BY
v.     Record No. 0282-06-4                                   JUDGE JAMES W. HALEY, JR.
                                                                   MARCH 13, 2007
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                  Arthur B. Vieregg, Judge

                 Michael G. Nye, Assistant Public Defender (Office of the Public
                 Defender, on briefs), for appellant.

                 J. Robert Bryden, II, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Convicted by jury of a felony third offense of driving while intoxicated (“DWI”), Mark

S. Pongo (“appellant”) maintains the evidence is insufficient to demonstrate he was represented

by counsel at a predicate conviction. Finding that evidence sufficient, we affirm.

                                               FACTS

       The appealed conviction was enhanced in part by a predicate conviction for DWI, entered

by the General District Court of Fairfax County on December 15, 2004. In the instant

proceedings, the Commonwealth introduced a certified copy of the warrant reflecting that district

court conviction. The warrant contains a space designated “Defendant’s Attorney Present

(name),” and the court wrote in the name “Beckwith.” The warrant shows that appellant pled

“guilty” and disposition was pursuant to a “plea and recommendation.” That recommendation




       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
apparently was a fine of $800 with $400 suspended; 60 days in jail, all of which was suspended;

and a one-year restricted license based upon participation in an alcohol safety action program.

       Appellant had also been charged with unreasonable refusal to take a blood or breath test

when he was arrested for the DWI that led to the December 15, 2004 conviction. That charge

was likewise heard on December 15, 2004. A certified copy of that warrant likewise had

inserted the name “Beckwith,” as counsel, and it included the following disposition: “I order a

nolle prosequi on prosecution’s motion” with the handwritten notation “(plea).” Judge L.

Nordlund signed the records.

       Called as a witness by appellant in the instant proceedings, attorney Gregory Beckwith

testified that he had, in fact, been in general district court before Judge Nordlund on December

15, 2004, where he had two scheduled cases. Beckwith testified that he spoke with appellant at

the courthouse that day but had no specific recollection regarding whether he actually

represented appellant or “[went] up to the podium with [appellant] when his case was called.”

Beckwith remembered only that appellant approached him in the hallway adjacent to the

courtroom and told Beckwith that his attorney, Patrick Grace of Prince William County, could

not be there to represent him. Beckwith had no records indicating whether he had represented

appellant. Beckwith testified that “[he had] been asked by the General District Court Judges [on

prior occasions] to stand in . . . for maybe somebody who didn’t have a lawyer and they want to

get it resolved that day.” Beckwith said that in such an instance he would not have created a file.

He acknowledged that resolution of cases by plea and recommendation usually occurs when

counsel represents a defendant and counsel has discussed the matter with the Commonwealth’s

attorney. Beckwith also testified that when a refusal charge was disposed of by nolle prosequi, it

was usually the result of an agreement between the Commonwealth and defense counsel that the

client would plead guilty to the DWI.


                                               -2-
       Appellant acknowledged that Mr. Grace was not present on December 15, 2004 and that

he talked to Mr. Beckwith. He testified he thought Mr. Beckwith was the Commonwealth’s

attorney, but that Beckwith “said no, he wasn’t the prosecutor so he was there to talk to the

prosecutor too.” Appellant testified he himself “negotiated” with the prosecutor. Appellant’s

counsel then posed the following narrowly phrased questions:

               Q. [C]ould you tell me whether you had Mr. Beckwith or any
               other attorney at your side when you went up to the podium?

               A. No. I did not.

                           *       *      *      *       *       *       *

               Q. Were you alone at the podium?

               A. I was.

Appellant testified he pled guilty to both the DWI and the unreasonable refusal charges.

       Appellant introduced a copy of his DMV transcript, which represented, in contrast to the

district court documents, that he did not have counsel at the time of his December 15, 2004

conviction for DWI.

       Appellant raised the issue of the propriety of the introduction of the certified copy of the

district court records pertaining to the December 15, 2004 conviction by a motion in limine. At

the conclusion of the hearing on the motion, and after reciting its review of all the evidence, the

trial court found as follows: “From all these circumstances I conclude that the defendant had the

advice of counsel when his plea of guilty was received and his suspended sentence was

imposed.”

                                              ANALYSIS

       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

                                                -3-
done, till the contrary appears.” Samuels v. Commonwealth, 27 Va. App. 119, 123, 497 S.E.2d

873, 875 (1998) (citations omitted). Further, “[a]n appellate court will not disturb a trial judge’s

factual finding unless it is plainly wrong or without evidence to support it.” Id. at 125, 497

S.E.2d at 876 (affirming the trial court’s factual finding that appellant was represented by

counsel in a prior conviction).

        The proof required for assigning the presumption of regularity in prior uncounseled

conviction cases is stated by this Court in James v. Commonwealth, 18 Va. App. 746, 446 S.E.2d

900 (1994):

                We hold that the Commonwealth satisfies its burden of going
                forward 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. “Upon
                such a showing by the [Commonwealth] the doctrine of
                ‘presumption of regularity’ is then applied, and unless the
                defendant presents credible evidence that there is some
                constitutional infirmity in the judgment it must stand.” A silent
                record or the mere naked assertion by an accused that his prior
                counseled plea was not made knowingly and intelligently is
                insufficient.

18 Va. App. at 752, 446 S.E.2d at 904 (quoting State v. Moeller, 511 N.W.2d 803, 809 (S.D.

1994)) (citation omitted). The Commonwealth’s evidence met the initial burden sufficient to

raise the presumption of regularity with respect to appellant’s December 15, 2004 conviction.

See Samuels, 27 Va. App. at 123, 497 S.E.2d at 875. Appellant argues, however, that this

presumption of regularity had been sufficiently rebutted by three pieces of evidence. We

consider each in turn.

        As to appellant’s testimony that his conviction was uncounseled, this Court has held that,

“In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving

testimony of the accused . . . .” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500

                                                  -4-
S.E.2d 233, 235 (1998). We note that appellant admitted speaking to Mr. Beckwith on the day in

question, and apparently in the presence of the prosecutor, but stated only that Mr. Beckwith did

not accompany him to the podium when he pled guilty. However, the inconsistency between

appellant’s testimony that he had pled guilty to both charges and the existence of a plea

agreement resolving them supports the trial court’s decision to discount appellant’s testimony.

       Appellant also relies on the testimony of Mr. Beckwith. The trial court noted that, “Mr.

Beckwith has not testified that he did not represent [appellant]. He’s testified he does not recall

representing him . . . .” (Emphasis added). Indeed, Mr. Beckwith testified (1) that he had, on

prior occasions at the request of the court, “[stood] in” as counsel for individuals who wished to

have their charges resolved on a particular day, and (2) that the disposition of appellant’s two

charges on December 15, 2004 was consistent with a plea agreement negotiated between the

Commonwealth and counsel. This testimony supports, rather than negates, the proposition that

Mr. Beckwith represented appellant on that date. Moreover, it necessarily follows that, unless

Mr. Beckwith or appellant told Judge Nordlund that the former represented the latter, the judge

could not have known what name to place on both warrants in the space indicated for counsel.

       Finally, appellant relies upon the words, “Counsel: None,” on the DMV transcript. This

Court has previously held that “[a]lthough a respondent may present evidence that tends to rebut

or refute the prima facie presumption of law that [a conviction is] valid, nevertheless, that

evidence must be weighed by the trier of fact to determine whether it overcomes the

presumption.” Moffitt v. Commonwealth, 16 Va. App. 983, 987, 434 S.E.2d 684, 687 (1993).

Further, this Court has noted that “‘[a] presumption of law cannot be said to be rebutted where

the [credible] evidence . . . for and against the presumption is equally balanced.’” Lambert v.

Lambert, 6 Va. App. 94, 101, 367 S.E.2d 184, 188 (1988) (quoting Rowe v. Rowe, 144 Va. 816,

822, 130 S.E. 771, 772 (1925)).


                                                -5-
       Although the DMV transcript had evidentiary value, the district court’s records—which

were made contemporaneously with the proceedings and were supported by the testimony of Mr.

Beckwith and appellant’s admission that he spoke with Beckwith that day—were entitled to the

presumption of regularity, and the evidence supported the trial court’s conclusion that the DMV

transcript was insufficient to rebut that presumption.

                                                                                      Affirmed.




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