Walter L. Payne, Jr. v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Judges Willis and Fitzpatrick
Argued at Alexandria, Virginia
WALTER L. PAYNE, JR. OPINION BY
v. 	Record No. 1325-95-4 	JUDGE JERE M. H. WILLIS, JR.
MARCH 11, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
Robert M. Byrne for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Walter L. Payne, Jr. was adjudged an habitual offender under
Code § 46.2-355. 	On appeal, he contends (1) that the
Commonwealth was barred from seeking his adjudication because it
failed to file an information against him "forthwith" as required
by Code § 46.2-353, and (2) that the Department of Motor Vehicles
abstract filed and presented by the Commonwealth improperly
omitted his prior certification as a possible habitual offender.
We find no error and affirm the judgment of the trial court.
On February 11, 1993, the Commissioner of the Department of
Motor Vehicles (DMV) certified to the Commonwealth's Attorney
that Payne was a possible habitual offender. 	The Commonwealth's
Attorney took no action on this certification. 	On June 30, 1994,
Payne's driver's license expired. 	On July 11, 1994, the
Commissioner again certified that Payne was a possible habitual
offender. 	The second certification was based upon the same

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record of convictions as the February, 1993 certification.
On October 27, 1994, the Commonwealth's Attorney filed an
information based upon the second certification and a rule was
entered requiring Payne to show cause pursuant to Code § 46.2-354
why he should not be adjudicated an habitual offender. 	The DMV
abstract attached to the information made no reference to the
first certification. 	In an opinion letter filed April 17, 1995,
the trial court rejected arguments not presented on appeal and
denied Payne's motion to dismiss the rule to show cause.
On May 4, 1995, Payne moved to reopen the hearing. 	On May
19, 1995, the trial court heard oral argument on this motion and
accepted into evidence a DMV abstract that set forth Payne's
February, 1993 certification. 	The trial court denied the motion
to reopen the hearing and adjudged Payne to be an habitual
offender.
Payne first contends that because the Commonwealth failed to
act "forthwith" upon his first certification, it may not seek his
adjudication as an habitual offender based upon a second
certification for the same convictions. 	Code § 46.2-353, as in
force at the time of Payne's certification and adjudication,1
provided: The attorney for the Commonwealth, on
receiving the transcripts or abstracts from
the Commissioner provided for in § 46.2-352,
shall forthwith file information against the
person named therein . . . .
1Acts of Assembly 1995, Chapter 799, rewrote this section,
effective January 1, 1996.

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(Emphasis added). 	In Potter v. Commonwealth, 10 Va. App. 113,
390 S.E.2d 196 (1990), we determined that the Commonwealth had
not acted "forthwith" when it sought to have Potter declared an
habitual offender eleven months after the certification.
Potter's adjudication was affirmed, however, because no prejudice
resulted from the delay.
Payne argues that because the Commonwealth's Attorney failed
to act forthwith, and because he demonstrated resulting
prejudice, the trial court erred in refusing to dismiss the
information against him pursuant to Potter. 	We disagree.
We assume, without deciding, that the Commonwealth's
Attorney failed to act "forthwith" on Payne's first
certification. 	However, our decision is controlled by Sink v.
Commonwealth, 13 Va. App. 544, 413 S.E.2d 658 (1992). 	In Sink,
the defendant argued that the Commonwealth waived its right to
have him adjudged an habitual offender because the Commissioner
issued him a driver's license after his third conviction for
driving while intoxicated, and because the Commonwealth delayed
in filing an information against him. 	We held:
that the doctrines of laches and estoppel may
not be employed to bar the state from
exercising its governmental functions and
that an agent of the Commonwealth may not
waive the right of the Commonwealth to
exercise its governmental function of
enforcing the Habitual Offender Act.
Id. at 547, 413 S.E.2d at 660.
The Commonwealth pursued Payne's adjudication "forthwith"

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following his second certification. 	Whether the language of the
Habitual Offender Act is directory or mandatory, the Commonwealth
was not barred from seeking Payne's adjudication upon that
certification. 	Id. at 546-47, 413 S.E.2d at 659-60.
Payne next contends that the omission of the first
certification from the abstract filed with the information denied
the trial court the opportunity to hear and evaluate all the
evidence, that the omission amounted to fraud on the court, that
such fraud affected the outcome of the hearing, and that the
trial court abused its discretion in denying Payne's motion to
reopen the hearing. 	We find this argument without merit. 	The
mere failure of the Commonwealth's Attorney to proceed timely
upon the first certification did not bar the Commonwealth from
enforcing the Habitual Offender Act upon the second
certification. 	Therefore, Payne's adjudication as an habitual
offender was not affected by the omission of the first
certification from the abstract.
Furthermore:
"[T]here is a presumption that public
officers have properly discharged their
duties and faithfully performed those matters
with which they are charged." 	The
Commissioner of the Department of Motor
Vehicles is presumed to have kept accurate
records.
Commonwealth v. Dalton, 11 Va. App. 620, 623, 400 S.E.2d 801, 803
(1991) (citations omitted).

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Code § 46.2-3532 stated that:
The Commissioner shall certify, from the
Department's records, substantially in the
manner provided for in § 46.2-215, three
transcripts or abstracts of those conviction
documents which bring the person named
therein within the definition of an habitual
offender. . . .
The Commissioner certified to the Commonwealth's Attorney an
abstract of Payne's conviction documents as provided by Code
§ 46.2-353. 	The Commissioner was not required to transmit any
information beyond that required to bring Payne within the
definition of an habitual offender. 	See Nesselrodt v.
Commonwealth, 19 Va. App. 448, 451-52, 452 S.E.2d 676, 678 (1994)
(en banc).
The record discloses no evidence of fraud arising from the
omission of the first certification from the transcript filed by
the Commonwealth. 	Prior to final judgment adjudicating Payne an
habitual offender, the trial court heard argument on Payne's
motion to reopen the hearing and accepted a transcript containing
the earlier certification. 	The trial court did not abuse its
discretion in refusing to reopen the adjudication hearing.
The judgment of the trial court is affirmed.
Affirmed.
2In force at the times concerned in this appeal.