Michael Patrick Burke v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Benton and
Senior Judge Duff
Argued at Alexandria, Virginia
MICHAEL PATRICK BURKE OPINION BY
v. 	Record No. 1495-97-4 	JUDGE JAMES W. BENTON, JR.
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Marcus D. Williams, Judge
(Thomas F. Koerner, Jr., on brief), for
appellant. 	Appellant submitting on brief.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General; Pamela A.
Rumpz, Assistant Attorney General, on brief),
for appellee.
A jury convicted Michael Patrick Burke of a second or
subsequent offense of driving a motor vehicle after having been
declared an habitual offender and while the habitual offender
order was in effect. 	See Code § 46.2-357(A) and (B)(3). 	To
prove Burke's prior conviction for driving after having been
declared an habitual offender, the prosecutor offered as evidence
the conviction order. 	Burke contends the trial judge erred
during the guilt determination phase of the trial by refusing to
redact from the conviction order the punishment imposed.
Although we agree that the trial judge erred, the record
establishes that the error was harmless. 	For this reason, we
affirm the conviction.

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I.
When a police officer stopped Burke to investigate a traffic
offense, he arrested Burke for driving on a revoked license after
having been declared an habitual offender. 	At trial, the
prosecutor introduced into evidence during the guilt
determination phase an order from a circuit court declaring Burke
to be an habitual offender. 	The prosecutor also offered into
evidence a conviction order establishing that Burke had
previously been convicted of driving after having been adjudged
an habitual offender. 	The latter order recited that Burke had
been sentenced to ninety days in jail. 	Burke objected to the
portion of the order showing the jail sentence and asked the
trial judge to redact that portion of the order. 	The judge
declined to redact the order and allowed the entire conviction
order to be entered into evidence. 	At the conclusion of the
evidence, the jury convicted Burke of the offense.
At the punishment phase of the trial, the jury considered
Burke's entire record of convictions and recommended a sentence
of three years in prison. 	The judge imposed sentence in
accordance with the jury's verdict.
II.
In a prosecution under Code § 46.2-357, the Commonwealth may
seek to prove "a second or subsequent . . . offense" and subject
the accused to a more severe punishment.1 When the Commonwealth
1At the time of the offense, the pertinent part of the
statute read as follows:

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A. 	It shall be unlawful for any person to
drive any motor vehicle or self-propelled
machinery or equipment on the highways of the
Commonwealth while the revocation of the
person's driving privilege remains in effect.
. . .
B. 	Any person found to be an habitual
offender under this article, who is
thereafter convicted of driving a motor
vehicle or self-propelled machinery or
equipment in the Commonwealth while the
revocation determination is in effect, shall
be punished as follows:
1. 	If such driving does not, of itself,
endanger the life, limb, or property of
another, such person shall be guilty of a
misdemeanor punishable by confinement in jail
for no more than ninety days and a fine of
not more than $2,500, either or both.
However, ten days of any such confinement
shall not be suspended except in cases
designated in subdivision 2 (ii) of this
subsection.
2. 	If such driving, of itself, does endanger
the life, limb, or property of another, such
person shall be guilty of a felony punishable
by confinement in a state correctional
facility for not less than one year nor more
than five years or, in the discretion of the
jury or the court trying the case without a
jury, by confinement in jail for twelve
months and no portion of such sentence shall
be suspended except that (i) if the sentence
is more than one year in a state correctional
facility, any portion of such sentence in
excess of one year may be suspended or (ii)
in cases wherein such operation is
necessitated in situations of apparent
extreme emergency which require such
operation to save life or limb, said
sentence, or any part thereof may be
suspended.
3. 	If the offense of driving while a
determination as an habitual offender is in
effect is a second or subsequent such

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proves the elements required by Code § 46.2-357(A), the only
evidence necessary to support a jury's finding that the accused
was guilty of a second or subsequent offense is proof of the fact
of a past conviction. 	See Hudson v. Commonwealth, 9 Va. App.
110, 113, 383 S.E.2d 767, 769 (1989).
Since 1995, Code § 19.2-295.1 has provided for a bifurcated
proceeding in jury trials. 	Under that statute, the jury must
first determine whether an accused is guilty of the charged
offense. 	If the jury finds the accused guilty, then a "separate
proceeding limited to the ascertainment of punishment" shall be
commenced. 	Code § 19.2-295.1.
Nothing in Code § 46.2-357 indicates that in the guilt
determination phase of a bifurcated jury trial the Commonwealth's
proof of the elements necessary to establish a second or
subsequent offense under Code § 46.2-357 encompasses proof of the
punishment imposed for prior convictions. 	Proof of the
punishment imposed for prior convictions is not relevant to the
issue whether the accused is guilty of the offense. 	Accordingly,
we hold that the trial judge erred in refusing to redact
references to Burke's ninety-day jail sentence from the
conviction order when the conviction order was entered as
offense, such person shall be punished as
provided in subdivision 2 of this subsection,
irrespective of whether the offense, of
itself, endangers the life, limb, or property
of another.
Code § 46.2-357.

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evidence during the guilt determination phase of the trial.
III.
We held in Hudson that "the unnecessary introduction of [the
accused's] sentences for past convictions was potentially
prejudicial to him." 	9 Va. App. at 113, 383 S.E.2d at 769.
However, Hudson is not controlling because jury trials were not
bifurcated in Virginia when Hudson was decided. 	Code
§ 19.2-295.1, which was enacted six years after Hudson, provides
that during the punishment phase of a bifurcated jury trial "the
Commonwealth shall present the defendant's prior criminal
convictions by certified, attested or exemplified copies of the
record of conviction." 	Code § 19.2-295.1.
In Gilliam v. Commonwealth, 21 Va. App. 519, 465 S.E.2d 592
(1996), we held that when the legislature enacted the bifurcated
trial statute, "the legislature incorporated the term 'record of
conviction' into Code § 19.2-295.1 aware that its meaning
includes both convictions and punishment, thereby intending to
assist the jury in fashioning a sentence suitable both to
defendant and the offense." 	Gilliam, 21 Va. App. at 524, 465
S.E.2d at 595. 	Thus, we held that in the punishment phase of a
bifurcated trial the trial judge could allow the jury to consider
conviction orders that include recital of the punishment imposed.
Id. at 525-26, 465 S.E.2d at 525. 	In view of that holding, we
must determine whether the trial judge's error in this case was
harmless error. 	We hold that it was.

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The evidence overwhelmingly proved during the guilt
determination phase of the trial that Burke had been declared an
habitual offender. 	When Burke was stopped by the police officer,
Burke admitted his habitual offender status. 	Furthermore, the
prosecutor offered into evidence, without objection, the order
that declared Burke to be an habitual offender.
When the prosecutor offered as evidence the conviction order
establishing Burke's prior conviction, Burke did not object to
the portion of the order proving the fact of the conviction.
Thus, at the guilt determination phase of the trial, the evidence
overwhelmingly proved that Burke had been declared an habitual
offender, that Burke was driving after he had been declared an
habitual offender and while the order was in effect, and that
Burke previously had been convicted of the same offense. 	In
light of that evidence, we "can conclude, without usurping the
jury's fact finding function, that, had the error not occurred,
the verdict [of guilty] would have been the same." 	Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc). 	No evidence remotely suggests that the jury's
knowledge of Burke's ninety-day sentence tended to influence its
finding of guilt.
The jury's knowledge of the jail sentence that Burke
received upon the prior conviction could have affected only the
sentence the jury recommended. 	However, the jury decided Burke's
sentence during the punishment phase of the trial. 	Based on

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Gilliam, the trial judge did not err in allowing the jury to
receive the unredacted prior conviction order during the
punishment phase of the trial. 	See 21 Va. App. at 525-26, 465
S.E.2d at 595. 	Despite the trial judge's error during the guilt
phase of the trial, the jury eventually would have been exposed
to Burke's punishment for the prior offense before deciding
Burke's punishment. 	Thus, the error was clearly harmless as it
relates to the punishment phase of the trial. 	Moreover, the jury
recommended a sentence of three years in prison, two years less
than the maximum sentence that it could have recommended. 	The
sentence was not of such magnitude so as to suggest that it was
influenced by the admission of the unredacted order at the guilt
determination phase.
For these reasons, we hold that the error was harmless and
affirm the conviction.
Affirmed.