COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Bumgardner and Lemons
Argued at Salem, Virginia
BENJAMIN MATTHEW MORGAN
OPINION BY
v. Record No. 2128-97-3 JUDGE DONALD W. LEMONS
DECEMBER 15, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Elwood Earl Sanders, Jr., Director
Capital/Appellate Services (Public Defender
Commission, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Benjamin M. Morgan appeals his conviction for driving after
having been declared an habitual offender. On appeal, he argues
that the doctrine of res judicata prohibits his conviction.
Finding no error, we affirm his conviction.
BACKGROUND
On December 20, 1995, the Commonwealth's Attorney of Henry
County filed an information seeking to have Benjamin M. Morgan
declared an habitual offender. A certified transcript of
Morgan's driving record was attached to the information, which
listed the following three convictions: (1) driving while
intoxicated, second offense, on October 23, 1995, in Henry
County, Virginia; (2) driving under a revocation or suspension of
license, on June 28, 1995, in the state of South Carolina; and
(3) driving while intoxicated, first offense, on January 1, 1986,
in Henry County, Virginia.
The Henry County Circuit Court dismissed the information
"with prejudice," finding that Morgan "does not fit within the
definition of an Habitual Offender as set forth in the applicable
statutes." The court directed the Clerk of Court to "file with
the Department of Motor Vehicles an attested copy of this order."
The court "further order[ed] that a certified copy hereof be
mailed to [Morgan] at his last known address."
Effective January 1, 1996, the procedure for adjudicating an
habitual offender was amended in Virginia. See Code § 46.2-352;
see also Burchett v. Commonwealth, 26 Va. App. 696, 496 S.E.2d
154 (1998). On January 29, 1996, the Department of Motor
Vehicles (DMV) sent Morgan an Order of Revocation which stated
that his "privilege to operate motor vehicles in Virginia is
revoked indefinitely effective February 28, 1996 at 12:01 A.M.
because you were determined on January 25, 1996 to be an habitual
offender." The order listed the same three offenses as the basis
for the revocation as those named in the Henry County
information. The order informed Morgan of his right to appeal
this determination to the circuit court. Morgan signed for the
order, which was sent via certified mail, on January 31, 1996.
Morgan did not appeal or otherwise challenge the DMV order.
On December 21, 1996, Officer E.M. Nowlin, Jr., of the
Martinsville Police Department, observed Morgan driving
erratically. Suspecting that Morgan was intoxicated, Nowlin
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stopped the vehicle and asked Morgan for his driver's license.
Morgan stated that he did not have a driver's license and offered
a Social Security card. Utilizing Morgan's Social Security
number, the officer discovered Morgan's status as an habitual
offender. Morgan made no comment to the officer about the status
of his license.
At trial, Morgan pled guilty to driving while intoxicated
but contested the charge of driving after having been declared an
habitual offender. Morgan had been present in Henry County
Circuit Court in December 1995, when the initial petition was
dismissed. He signed for the certified letter from the DMV on
January 31, 1996, but stated that he never read it. He admitted
that he never appealed the DMV order of revocation or challenged
it in any way prior to his arrest.
RES JUDICIATA
"The bar of res judicata precludes relitigation of the same
cause of action, or any part thereof, which could have been
litigated between the same parties and their privies." Smith v.
Ware, 244 Va. 374, 376, 421 S.E.2d 444, 445 (1992). Res judicata
requires that four elements be present: "(1) identity of the
remedies sought; (2) identity of the cause of action; (3)
identity of the parties; and (4) identity of the quality of the
persons for or against whom the claim is made." Id. at 376, 421
S.E.2d at 445. Res judicata must be pled just as the statute of
limitations is pled. See Nelms v. Nelms, 236 Va. 281, 289, 374
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S.E.2d 4, 9 (1988). A plea is "a pleading which alleges a single
state of facts or circumstances . . . which, if proven,
constitutes an absolute defense to the claim." Id. at 289, 374
S.E.2d at 9.
On appeal, Morgan claims the circuit court's dismissal of
the petition to declare him an habitual offender in December 1995
bars the DMV order of revocation in January 1996 based upon the
same prior convictions. He argues that the prior proceeding in
the Henry County Circuit Court was "an identical prior
proceeding" to the DMV revocation process in January 1996.
Morgan argues that the doctrine of res judicata bars the DMV
order or renders it void.
The DMV order of revocation contained the following
language:
At any time after the receipt of the
revocation notice, as provided for in
subsection A, or after otherwise learning of
the revocation, a person who has been
determined to be an habitual offender may
file, with the circuit court of the county or
city in which he resides, or with the Circuit
Court of the City of Richmond if the person
is not a resident of the Commonwealth, a
petition for a hearing and determination by
the court that the person is not an habitual
offender . . . .
In Highsmith v. Commonwealth, 25 Va. App. 434, 489 S.E.2d
239 (1997), we held that "[t]he doctrines of res judicata and
collateral estoppel apply to criminal, as well as civil,
proceedings." Id. at 441, 489 S.E.2d at 242. However, Morgan
did not raise the issue of res judicata in response to the DMV
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order and never filed a petition for a hearing contesting his
adjudication. At trial, Morgan sought to collaterally attack in
a criminal case that which he did not appeal in a civil
proceeding.
In Mays v. Harris, 523 F.2d 1258 (4th Cir. 1975), the
defendant was adjudicated an habitual offender in 1970. He
surrendered his license and did not appeal the adjudication. In
1973, the defendant was convicted of two counts of violating
Virginia law by operating a motor vehicle in violation of the
order. He was sentenced to one year in jail for each violation.
He then sought a writ of habeas corpus, attacking the validity
of two of the four underlying convictions supporting his
adjudication as an habitual offender. The District Court
declared the 1970 habitual offender adjudication a "nullity"
because the defendant's Sixth Amendment right to counsel had been
violated in two of the four convictions. Also, the District
Court voided the two 1973 convictions for operating a motor
vehicle in violation of the order, holding "that the nullity of
the 1970 adjudication necessarily voided the 1973 convictions for
driving while adjudged an habitual offender." Id. at 1259.
The Fourth Circuit reversed the District Court and
reinstated the convictions for driving after having been
adjudicated an habitual offender "because the sentence about
which Mays complains does not depend on the validity of his
underlying convictions." Id. The court reasoned, "[t]he 1973
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convictions that Mays now attacks did not follow directly and
inexorably from the earlier adjudication: a new element was
essential that he drove a motor vehicle in the face of an order
forbidding that he do so." Id. (emphasis added). Consequently,
"Mays was convicted and sentenced . . . not because he was an
adjudged habitual offender, but because he wilfully [sic] and
flagrantly violated an extant court order." Id.
The Mays court relied upon Walker v. Birmingham, 388 U.S.
307, 87 S. Ct. 1824, 18 L.Ed.2d 1210 (1967), in which the United
States Supreme Court upheld contempt of court convictions for
civil rights protestors who had willfully violated a state court
injunction against protest marches. As a defense to their
convictions, the protestors argued that the injunction was
"overbroad." The Court declined to allow the protestors to use
the invalidity of the injunction as a defense, stating, "they
could not bypass orderly judicial review of the injunction before
disobeying it." Walker, 388 U.S. at 320, 87 S. Ct. at 1832.
Adopting the principle in Walker, the court in Mays held,
[w]e believe the principle of Walker is fully
applicable here. Mays can test his
adjudication as an habitual offender, but he
cannot with impunity choose to ignore the
adjudication and resulting injunction for, as
the court said in Walker, "in the fair
administration of justice no man can be judge
in his own case."
Mays, 523 F.2d at 1259.
Here, Morgan was charged with driving after having been
adjudicated an habitual offender. The gravaman of the offense is
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driving while having knowledge that one has been adjudicated an
habitual offender and "while the revocation of the person's
driving privilege remains in effect." Code § 46.2-357. Because
Morgan had notice of the DMV order of revocation declaring him an
habitual offender, never appealed that order, and operated a
motor vehicle on the highways of Virginia during the period of
revocation, we hold that the bar of res judicata does not
prohibit his conviction. 1 Accordingly, his conviction is
affirmed.
Affirmed.
1
We express no opinion on the issue whether the bar of res
judicata, if properly pled in a proceeding directly contesting
the DMV habitual offender adjudication, would negate DMV's
action.
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