                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Coleman and Lemons
Argued at Salem, Virginia


BUDDY LEE ELKINS
                                            OPINION BY
v.   Record No. 1642-98-3       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          AUGUST 17, 1999
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                      Richard S. Miller, Judge

           Margaret A. Nelson, Senior Assistant Public
           Defender, for appellant.

           John H. McLees, Jr., Assistant Attorney
           General (Mark L. Earley, Attorney General;
           Richard B. Campbell, Assistant Attorney
           General, on brief), for appellee.


     Buddy Lee Elkins (appellant) was convicted of driving after

having been declared an habitual offender, second offense, in

violation of Code § 46.2-357.    Appellant contends the trial

court erred in admitting and relying upon a misdemeanor habitual

offender conviction as a predicate offense because no evidence

proved that he waived his right to counsel or right to a jury at

trial.   For the following reasons, we reverse the conviction.

                           I.   BACKGROUND

     Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom.       See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on August 11, 1997,

Officer Trent (Trent) of the Lynchburg Police Department

observed appellant driving a blue Ford truck near Bedford Avenue

and Dinwiddie Street.     Trent was familiar with appellant and

knew that his driver's license had been previously suspended.

     The officer followed the truck and checked the status of

appellant's license.     Trent lost sight of appellant for about

twenty seconds, but abruptly came upon him standing in front of

his stopped truck with the hood elevated.    Having verified that

appellant's license was suspended, the officer confronted

appellant.

     Trent testified as follows:

             Q.   What did you do?

             A. Before I got out of the vehicle, I
             confirmed with the dispatchers that he in
             fact was still suspended. I exited the
             vehicle and walked up to him. . . . I
             advised him that I had seen him driving and
             that I [had] just gotten his information
             that he was suspended.

             Q.   And what did he say?

             A. He said, I know I'm not supposed to
             drive. I just went to Court. And then he
             said, I wasn't driving the vehicle. The
             lady that was with him, he said she was
             driving.

(Emphasis added).     Trent stated unequivocally that appellant was

the individual he observed driving the truck.



                                     - 2 -
     At trial, the Commonwealth offered into evidence four

exhibits:    (1) a certified copy of a court order indicating that

appellant had been adjudicated an habitual offender by the

Campbell County Circuit Court on March 7, 1995; (2) a certified

copy of a misdemeanor conviction showing that appellant had pled

guilty to driving after having been declared an habitual

offender in the Bedford County General District Court on

November 22, 1995; (3) a certified copy of a January 4, 1996

Bedford County Circuit Court order indicating that appellant was

deemed to have withdrawn his appeal of the November 22, 1995

Bedford County General District Court conviction; and (4)

appellant's DMV transcript.

     In the Bedford County proceedings, appellant appeared in

the general district court on November 22, 1995, and pled guilty

to driving after having been declared an habitual offender.    On

that occasion, appellant signed a form waiving his right to

counsel.    Following his conviction in the general district

court, appellant noted his appeal to the circuit court.    At the

trial de novo, appellant did not appear and was not represented

by counsel.   Rather than trying appellant in his absence, the

trial judge deemed appellant's failure to appear as the

equivalent of a withdrawal of his appeal.   The Bedford County

Circuit Court reinstated the judgment of the general district

court sentencing appellant to thirty days in jail and imposing a

$500 fine.

                                - 3 -
     At trial in the instant case, appellant's counsel objected

to the introduction of Exhibits 2 and 3, arguing that the

documents did not show appellant had been advised of his right

to counsel and right to a jury trial.   Additionally, appellant’s

counsel asserted that appellant was in the Campbell County jail

at the time of his January 4, 1996 misdemeanor appeal in the

Bedford County Circuit Court, and, for this reason, was unable

to attend his trial.   Appellant testified that he told the

deputies he had a court date, but they failed to assist him.

The trial court overruled appellant's objection, stating: "So

that was a cancelled conviction in the lower Court and he was

advised of his right to counsel and waived it.   So, I'm going to

find him guilty of the offense as charged in the indictment."

                       II.   RIGHT TO COUNSEL

     Appellant first contends the trial court erred in relying

on his previous habitual offender conviction in Bedford County

as the predicate offense for the instant charge.   He argues the

Bedford County Circuit Court erroneously relied on Code

§ 16.1-133 and treated his failure to appear in that case as a

withdrawal of his appeal from the general district court.

Although appellant executed a waiver of counsel form in the

general district court, he argues that he never waived either

his Sixth Amendment right to counsel or his right to a jury




                                - 4 -
trial in the de novo circuit court proceedings. 1    Accordingly,

appellant argues that the judgment of the Bedford County Circuit

Court was constitutionally infirm and that the trial court in

the instant case improperly relied on that conviction as the

predicate offense for an enhanced penalty.    We agree.

     It is well settled that an uncounseled misdemeanor

conviction is not invalid per se and may serve as a valid

predicate offense in habitual offender proceedings.       See

Griswold v. Commonwealth, 252 Va. 113, 116-17, 472 S.E.2d 789,

791-92 (1996); McClure v. Commonwealth, 222 Va. 690, 694, 283

S.E.2d 224, 226 (1981); Nicely v. Commonwealth, 25 Va. App. 579,

583, 490 S.E.2d 281, 282-83 (1997).   The United States Supreme

Court has held that for the purpose of enhancing punishment, a

sentencing court may consider a defendant's previous uncounseled

conviction where no jail sentence was imposed.      See Nichols v.

United States, 511 U.S. 738, 746-49 (1994).    In Virginia,

          [i]t 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.

     1
       As a preliminary matter, the Commonwealth argues Rule
5A:18 bars appellant from arguing on appeal that he was denied
his Sixth Amendment right to counsel and right to a jury trial.
We conclude from the transcript that appellant's counsel
specifically objected to the introduction of Exhibits 2 and 3
because there was no evidence of a waiver of appellant's
constitutional rights and that the trial judge considered and
ruled on the objection. Therefore, Rule 5A:18 does not bar our
review of the merits of this appeal. See Wright v.
Commonwealth, 4 Va. App. 303, 305, 357 S.E.2d 547, 549 (1987).

                              - 5 -
            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.

Nicely, 25 Va. App. at 583, 490 S.E.2d at 282-83 (citing

Nichols, 511 U.S. at 746-49; Griswold, 252 Va. at 116-17, 472

S.E.2d at 790-91) (emphasis in original).

     On November 22, 1995, appellant appeared in the Bedford

County General District Court and pled guilty to driving after

having been declared an habitual offender.    On that occasion,

appellant signed a form entitled "WAIVER OF RIGHT TO BE

REPRESENTED BY A LAWYER (CRIMINAL CASE)."    Following his

conviction in the general district court, appellant noted his

appeal to the circuit court.    At the trial de novo, appellant

did not appear and was not represented by counsel.     The circuit

court noted that the "defendant was called three times but did

not appear either in person or by counsel and the record

reflects that the defendant had notice of this date and time for

trial." 2   Therefore, the circuit court concluded:   "By his


     2
       We do not address appellant's contention that his failure
to appear in the Bedford County Circuit Court was because he was
incarcerated at the time. This argument raises no
constitutional questions and constitutes a collateral attack not
subject to review. See James v. Commonwealth, 18 Va. App. 746,
750-51, 446 S.E.2d 900, 903 (1994) (holding that a judgment in a
criminal case may not be collaterally attacked in another
criminal proceeding and that the "presumption of regularity"
applies even when a collateral attack rests on constitutional
grounds).

                                - 6 -
failure to appear to go forward with the appeal upon motion of

the Attorney for the Commonwealth, the defendant is deemed to

have withdrawn his appeal . . . ."    (Emphasis added).    The

circuit court reinstated the lower court's sentence.      It is in

this procedural posture that we review whether the Commonwealth

established that appellant knowingly and intelligently waived

his constitutional right to counsel and whether the Bedford

conviction was valid.

     The Bedford County Circuit Court "deemed" appellant's

failure to appear as the functional equivalent of a "withdrawal

of appeal" under Code § 16.1-133.    That section provides:

          [A]ny person convicted in a general district
          court, a juvenile and domestic relations
          district court, or a court of limited
          jurisdiction of an offense not felonious
          may, at any time before the appeal is heard,
          withdraw an appeal which has been noted, pay
          the fine and costs to such court, and serve
          any sentence which has been imposed.

               A person withdrawing an appeal shall
          give written notice of withdrawal to the
          court and counsel for the prosecution prior
          to the hearing date of the appeal. If the
          appeal is withdrawn more than ten days after
          conviction, the circuit court shall
          forthwith enter an order affirming the
          judgment of the lower court and the clerk
          shall tax the costs as provided by statute.
          Fines and costs shall be collected by the
          circuit court, and all papers shall be
          retained in the circuit court clerk's
          office.

               Where the withdrawal is within ten days
          after conviction, no additional costs shall
          be charged, and the judgment of the lower


                              - 7 -
          court shall be imposed without further
          action of the circuit court.

Code § 16.1-133 (emphasis added).

     "'Where a statute is unambiguous, the plain meaning is to

be accepted without resort to the rules of statutory

interpretation.'"   Sykes v. Commonwealth, 27 Va. App. 77, 80,

497 S.E.2d 511, 512 (1998) (quoting Last v. Virginia State Bd.

of Med., 14 Va. App. 906, 910, 421 S.E.2d 201, 205 (1992)).

"'"Courts are not permitted to rewrite statutes.   This is a

legislative function.   The manifest intention of the

legislature, clearly disclosed by its language, must be

applied."'"   Id. at 80-81, 497 S.E.2d at 512-13 (quoting Barr v.

Town & Country Properties, Inc., 240 Va. 292, 295, 396 S.E.2d

672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560,

566, 29 S.E.2d 838, 841 (1944))).

     Code § 16.1-133 is clear.    It provides that only the

accused has the right to withdraw his or her appeal to the

circuit court.   If the written notice of withdrawal is filed

within ten days after conviction in the general district court,

no additional costs or fines may be assessed, and the judgment

of the lower court is imposed.    If the appeal is withdrawn more

than ten days after conviction, the circuit court may assess

additional costs.   However, nothing in the Code or case law

allows the circuit court, upon its own motion, to withdraw a de




                                 - 8 -
novo appeal to the circuit court and reinstate the judgment of

the general district court.

     Under the circumstances presented in this appeal, the

Bedford County Circuit Court was required to proceed under Code

§ 19.2-258, which provides that when the accused fails to appear

in the circuit court on a misdemeanor charge, the accused may be

tried in his or her absence.   Code § 19.2-258 provides, in

relevant part:

               When a person charged with a
          misdemeanor has been admitted to bail or
          released upon his own recognizance for his
          appearance before a court of record having
          jurisdiction of the case, for a hearing
          thereon and fails to appear in accordance
          with the condition of his bail or
          recognizance, he shall be deemed to have
          waived trial by a jury and the case may be
          heard in his absence as upon a plea of not
          guilty.

Code § 19.2-258 (emphasis added).

     The evidence established that appellant failed to appear in

the circuit court.   However, the evidence failed to prove that

he withdrew his de novo appeal.     After the case had been

appealed and was before the circuit court for a de novo hearing,

the court had no authority to reinstate the judgment of the

general district court.   Under these facts, the Bedford County

Circuit Court could have tried appellant in his absence and, if

the evidence was sufficient, convicted him of driving after

having been declared an habitual offender.    However, without

appointing counsel, the circuit court could not have sentenced

                               - 9 -
appellant to a term of imprisonment.   See Griswold, 252 Va. at

117, 472 S.E.2d at 791 ("[W]e think the Supreme Court made it

plain, if it had not done so already, that there is no

constitutional right to counsel in a misdemeanor case unless the

conviction results in 'actual imprisonment.'" (emphasis added));

cf. Nichols, 511 U.S. at 743 (noting that "where no sentence of

imprisonment was imposed, a defendant charged with a misdemeanor

had no constitutional right to counsel").

     The Virginia Supreme Court has held that the burden is on

the Commonwealth "to prove the essentials of a waiver of the

right to counsel by clear, precise and unequivocal evidence."

Lemke v. Commonwealth, 218 Va. 870, 873, 241 S.E.2d 789, 791

(1978).   The United States Supreme Court has held that

"[p]resuming waiver from a silent record is impermissible.     The

record must show, or there must be an allegation and evidence

which show, that an accused was offered counsel but

intelligently and understandingly rejected the offer.     Anything

less is not waiver."   Carnley v. Cochran, 369 U.S. 506, 516

(1962) (emphasis added); see also Johnson v. Zerbst, 304 U.S.

458, 464 (1938) (holding that there is a presumption against a

defendant's waiver of any constitutional rights).

     Here, the Bedford County Circuit Court "reinstated" an

order of conviction without any authority for doing so and

imposed a period of incarceration without the defendant having

been represented by counsel or having waived his right to

                              - 10 -
counsel in the de novo appeal.    Because the Bedford County

conviction was entered without authority and without the

representation or waiver of counsel, the conviction is void and

cannot be relied upon as a predicate offense.

     In the instant case, the trial court relied upon a void

conviction to prove the predicate first offense.   We conclude

that because appellant's misdemeanor conviction was uncounseled,

which resulted in a thirty-day jail sentence, and the conviction

was reinstated without authority for doing so, it was improperly

used as the predicate offense.    Accordingly, we reverse

appellant's conviction and remand for further proceedings if the

Commonwealth be so advised. 3

                                          Reversed and remanded.




     3
       Because we reverse appellant's conviction for the failure
to prove a valid waiver of counsel, we do not address his
additional contention that he was also denied his right to a
jury trial. But see Code § 19.2-258 (When a defendant fails to
appear in the circuit court on a misdemeanor charge, "he shall
be deemed to have waived trial by a jury and the case may be
heard in his absence as upon a plea of not guilty." (emphasis
added)).

                                - 11 -
