Ogden v. Commonwealth8/24/1993
JUDGE LAWRENCE L. KOONTZ, JR.
Matthew D. Ogden (Ogden) was adjudicated an habitual offender on April 10, 1992, pursuant to Code § 46.2-351. Ogden contends on appeal that his May 5, 1989 conviction for driving while intoxicated, first offense, in violation of Fairfax County Code § 82-4-17, is not a valid predicate offense for his habitual offender adjudication. Additionally, he contends that the trial court lacked jurisdiction to adjudicate him an habitual offender because the information was not verified under oath by the Commonwealth's Attorney. We hold that Ogden's challenge to his May 5, 1989 conviction constitutes an impermissible collateral attack in an habitual offender proceeding. We further hold that Code § 46.2-353 does not require the Commonwealth's Attorney to verify the information under oath. Accordingly, we affirm.
On January 17, 1992, the Prince William County Commonwealth's Attorney filed an information in the circuit court to have Ogden declared an habitual offender. The Commonwealth presented the certification of the Commissioner of the Department of Motor Vehicles (DMV), transcript, and the abstracts of convictions establishing that Ogden had committed the requisite predicate offenses. The certified transcript, which was attached to the information, listed the three predicate offenses upon which the habitual offender information was instituted: (1) conviction for "driving while intoxicated, 1st" on May 5, 1989, in violation of Fairfax County Code § 82-4-17; (2) conviction for "driving while intoxicated, 1st" on September 3, 1991, in violation of Code § 18.2-266; and (3) conviction for "driving while intoxicated, 1st" on November 14, 1991, in violation of Code § 18.2-266.
Ogden first contends that the May 5, 1989 conviction cannot serve as a predicate offense because the penalty provision of Fairfax County Code § 82-4-21 was declared invalid in Commonwealth v. Knott, 11 Va. App. 44, 47, 396 S.E.2d 148, 150 (1990) and Commonwealth v. Holtz, 12 Va. App. 1151, 1152, 408 S.E.2d 561, 562 (1991). We disagree. In a recent decision, a panel of this Court held that a defendant may not in a later proceeding collaterally attack a conviction for a first offense driving while intoxicated conviction under Fairfax County Code §§ 82-4-17 and 82-4-21. Fraser v. Commonwealth, 16 Va. App. 775, 433 S.E.2d 37 (1993).
[Ogden] misconstrues our holding in the Knott and Holtz cases as invalidating Fairfax County Code §§ 82-4-17 and 82-4-21 entirely and for all purposes. To the contrary, we held that Fairfax County Code § 82-4-21, the penalty provision, was invalid only to the extent of its enhanced penalty provision for second offenders. The substantive provision of Fairfax County Code § 82-4-17 and the first offender penalty provision of Fairfax County Code § 82-4-21 remain valid. See Sos v. Commonwealth, 14 Va. App. 862, 864-65, 867, 419 S.E.2d 426, 427, 429 (1992). In Sos, we held that invalid portions of a statute may be severed and ignored "if the remaining valid portions of the act are sufficient to accomplish their purpose in accordance with the legislative intent." Id. at 865, 419 S.E.2d at 427. We also held that a party cannot challenge that portion of a statute that does not affect him. Id. at 865, 419 S.E.2d at 428. Therefore, because [Ogden] was convicted for DWI under Fairfax County Code § 82-4-17 and punished as a first offender under Fairfax County Code § 82-4-21,
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