COURT OF APPEALS OF VIRGINIA

Present:  	 Judges Annunziata, Humphreys and McClanahan
Argued by teleconference


JOHN BERNICE VESTER
			OPINION BY
v.	Record No. 2614-02-2	JUDGE ROBERT J. HUMPHREYS
	MARCH 9, 2004
COMMONWEALTH OF VIRGINIA


	FROM THE CIRCUIT COURT OF HENRICO COUNTY
Gary A. Hicks, Judge

		Joseph McGrath for appellant.

		Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, 
Attorney General; H. Elizabeth Shaffer, Assistant Attorney General, 
on brief), for appellee.


John Bernice Vester appeals his conviction for one count of operating a motor vehicle 
while under the influence, third or subsequent offense within ten years, in violation of Code 
 18.2-266 and 18.2-270.   Vester argues the trial court erred in denying his motion to suppress 
his prior convictions for driving under the influence.  For the reasons that follow, we affirm 
Vester's conviction.
In accordance with settled principles of appellate review, on an appeal of a trial court's 
denial of a motion to suppress, this Court must review the evidence in the light most favorable to 
the Commonwealth, the prevailing party in the lower court, granting to it all reasonable 
inferences fairly deductible from it.  Sabo v. Commonwealth, 38 Va. App. 63, 69, 561 S.E.2d 


761, 764 (2002).  "'[T]he burden is upon [the defendant] to show that the ruling, when the 
evidence is considered most favorably to the Commonwealth, constituted reversible error.'"  
McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) 
(alterations in original) (quoting Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 
731 (1980)).
The record reflects that Vester was arrested on October 30, 1999 for driving under the 
influence.  Vester was subsequently indicted for driving under the influence "after having before 
been convicted within ten (10) years of two (2) or more convictions of [such] offenses," in 
violation of Code  18.2-266 and 18.2-270. 
Prior to his trial, Vester filed a "Motion to Dismiss" the indictment.  In relevant part, 
Vester alleged that his prior convictions for misdemeanor DUI should be suppressed.  
Specifically, Vester conceded that he had been convicted for two separate counts of 
misdemeanor DUI (in violation of Code  18.2-266) on August 21, 1995.  Vester further 
conceded that he had court-appointed counsel to represent him on those charges and that his 
court-appointed counsel appealed the related convictions to this Court.  By order dated July 8, 
1996, this Court denied Vester's petition for appeal.  Because his court-appointed counsel failed 
to perfect a further appeal of those convictions to the Supreme Court of Virginia, Vester argued 
that his counsel was "ineffective."  Therefore, in his motion to suppress, Vester claimed those 
convictions were invalid, and could not be relied upon in the instant case, because he was 
effectively denied his Sixth Amendment right to counsel for purposes of appeal of those 


convictions.  After a hearing, the trial court denied Vester's motion to suppress.  The trial court 
subsequently took evidence on the matter and found Vester guilty of the offense.
On appeal, Vester argues that the trial court erred in denying his motion to suppress, 
contending, once again, that his counsel for the prior convictions was ineffective and, therefore, 
that "[h]is situation cannot be distinguished from that of someone who had no counsel at all."  
Vester relies upon the premise stated in the United States Supreme Court's decision in Burgett v. 
Texas, 389 U.S. 109 (1967).  In Burgett, the Court held that prior, uncounseled convictions 
resulting in jail sentences were unconstitutional and could not, therefore, be "used against a 
person either to support guilt or enhance punishment for another offense."  389 U.S. at 115.  We 
have recognized this same premise.  See Nicely v. Commonwealth, 25 Va. App. 579, 584, 490 
S.E.2d 281, 283 (1997) ("[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."); see also Samuels v. Commonwealth, 27 Va. App. 119, 497 S.E.2d 873 (1998); 
James v. Commonwealth, 18 Va. App. 746, 446 S.E.2d 900 (1994).  Nevertheless, we disagree 
with Vester's contention that his alleged "ineffective" assistance of counsel permits him to 
collaterally attack his underlying convictions.
Vester concedes that his earlier convictions were secured with the assistance of counsel.  
Vester further concedes that his counsel properly perfected an appeal of those convictions to this 
Court.  However, because his counsel failed to properly perfect a further appeal to the Supreme 
Court of Virginia, Vester claims his counsel was constitutionally "ineffective" for purposes of 
the Sixth Amendment.
However, even were we to assume, without here deciding, that Vester's novel claim in 
this regard were true - that his counsel was "ineffective" - his claim on appeal must still fail.  
Indeed, albeit arguably in dicta, this Court has explicitly recognized that: 
The effectiveness of counsel is a separate issue from the right to 
counsel, although the two have often been analyzed in the same 
cases.  "The benchmark for judging any claim of ineffectiveness 
must be whether counsel's conduct so undermined the proper 
functioning of the adversarial process that the trial cannot be relied 
on as having produced a just result."  Stamper v. Townley, 4 
Va. App. 101, 105, 354 S.E.2d 802, 804 (1987) (quoting Strickland 
v. Washington, 466 U.S. 668, 686 (1984)).  Thus, once it is 
determined that counsel was in fact afforded to a defendant, a 
separate inquiry (and one that is not considered as part of this 
appeal) is whether that counsel's conduct provided reasonably 
effective assistance. 
Browning v. Commonwealth, 19 Va. App. 295, 297 n.2, 452 S.E.2d 360, 362 n.2 (1994).  
	Consistent with this line of reasoning, the United States Supreme Court has, likewise, 
explicitly distinguished between a defendant's lack of counsel and a defendant's lack of 
"effective" counsel.  Specifically, in Custis v. United States, 511 U.S. 485 (1994), the United 
States Supreme Court considered a claim virtually identical to Vester's.  Custis was convicted of 
an offense under the Armed Career Criminal Act of 1984, 18 U.S.C.  924(e) (ACCA).  Custis, 
511 U.S. at 487.  The Court granted certiorari to determine whether Custis had a right to 
collaterally attack the validity of the previous state convictions that were used to enhance his 
sentence under the ACCA.  Id.  In finding that Custis possessed no such right, the Supreme Court 
held as follows:
We think that since the decision in Johnson v. Zerbst[, 304 U.S. 
458 (1938),] more than half a century ago, and running through our 
decisions in Burgett and [United States v. Tucker, 404 U.S. 443 
(1972),] there has been a theme that failure to appoint counsel for 
an indigent defendant was a unique constitutional defect.  Custis 
attacks his previous convictions claiming the denial of the effective 
assistance of counsel, that his guilty plea was not knowing and 
intelligent, and that he had not been adequately advised of his 
rights in opting for a "stipulated facts" trial.  None of these alleged 
constitutional violations rises to the level of a jurisdictional defect 
resulting from the failure to appoint counsel at all.  Johnson v. 
Zerbst, supra.
Custis, 511 U.S. at 496 (emphases added).  Thus, contrary to Vester's contention on appeal, the 
United States Supreme Court has made a clear distinction between "uncounseled" convictions, 
and those that were secured with "ineffective" counsel.  Accordingly, Vester's claim that his 
"ineffective counsel" amounted to "no counsel," for purposes of the Sixth Amendment and 
collateral attack on his prior convictions, must fail.
	Moreover, the United States Supreme Court explicitly held in Custis that the right to 
collaterally attack a prior criminal conviction in a subsequent proceeding for enhancement 
purposes is limited to the actual denial of counsel.  Id.; see also Daniels v. United States, 532 
U.S. 374, 378 (2001); United States v. Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996) (holding 
that where a defendant's claim did not amount to a "complete denial of counsel," it could not 
form the basis of a collateral attack).  
Although the Custis decision concerned the sentencing enhancement provisions 
contained within a federal statute, the Court did not base its determination solely on the 
distinctive nature of that statute.  Instead, the Court specifically recognized two bases for its 
decision: 1) The language of the ACCA did not explicitly permit collateral challenges to prior 
convictions; and, 2) The Constitution - regardless of any statutory omission - did not permit 
Custis to "use the federal sentencing forum to gain review of his state convictions" on the 
grounds asserted.  Custis, 511 U.S. at 497.
	Accordingly, and consistent with the United States Supreme Court's decision in Custis, 
we find that Vester's sole claim of ineffective assistance of counsel, as a basis for challenging his 
underlying convictions for DUI, does not "rise to the level of a [constitutional] jurisdictional 
defect resulting from the failure to appoint counsel at all."  Id. at 496.  We thus find that Vester 
was not entitled to collaterally attack the validity of his previous misdemeanor DUI convictions, 
and we affirm his conviction for DUI, third or subsequent offense within ten years, in violation 
of Code  18.2-266 and 18.2-270.
Affirmed.
  In addition to this charge, Vester was charged with one count of failure to appear in 
violation of Code  19.2-128.  However, the disposition of that charge is not at issue on this 
appeal.
  Code  18.2-270 permits enhanced punishment for a third or subsequent DUI offense 
(in violation of Code  18.2-266), within a prescribed period of time.  Code  18.2-270; see also 
Williams v. Commonwealth, 265 Va. 268, 271-72, 576 S.E.2d 468, 470 (2003).
 

 
 
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