COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
WILLIAM MATTHEW THOMPSON
OPINION BY
v. Record No. 2860-96-2 JUDGE JOSEPH E. BAKER
JUNE 30, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF AMELIA COUNTY
Thomas V. Warren, Judge
A. Pierre Jackson (Law Office of A. Pierre
Jackson, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee
William Matthew Thompson (appellant) appeals from his bench
trial conviction by the Amelia County Circuit Court (trial court)
for driving after having been declared a habitual offender,
second offense, in violation of Code § 46.2-357. Appellant
argues that because the habitual offender order had been declared
void ab initio, the trial court could not convict him for
violating that order. In the alternative, appellant asserts that
allowing his conviction to stand would result in a manifest
injustice. For the reasons that follow, we affirm the judgment
of the trial court.
The relevant facts are not in dispute. 1 On September 2,
1980, the Charlotte County Circuit Court (Charlotte) declared
1
The facts are derived from a short statement of facts,
filed in lieu of a transcript, and various court orders.
appellant an habitual offender and directed that he not drive a
motor vehicle for a period of ten years. On September 8, 1992,
after a period of incarceration for violation of the 1980
habitual offender order, Charlotte again declared him an habitual
offender and ordered that his license be suspended for another
ten years. Following entry of that order, appellant was arrested
for driving a vehicle in Chesterfield County on May 5, 1993, and
charged with violating the 1992 Charlotte habitual offender
order. At a hearing before the Chesterfield County Circuit Court
(Chesterfield), appellant argued that the 1992 Charlotte habitual
offender order was void because he "was under a disability of
alcoholism" at the time of that proceeding and "no guardian
ad litem had been appointed for him." Chesterfield agreed and
declared the Charlotte habitual offender order void ab initio.
Thereafter, appellant was charged with driving in Amelia
County on September 22, 1995, in violation of the Charlotte
habitual offender order. On July 11, 1996, the trial court heard
evidence offered in proof of the Amelia County charge. The sole
issue in dispute before the trial court was whether
Chesterfield's 1993 order declaring the Charlotte habitual
offender order void ab initio was binding on the trial court so
as to require dismissal of the Amelia County charge. "After
hearing all the evidence, the Amelia County Circuit Court ruled
that the decision by the Chesterfield County Circuit Court
voiding the Charlotte County Circuit Court habitual offender
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adjudication was ineffectual," and it "found [appellant] guilty
as charged."
Appellant had been charged with driving after having been
declared a habitual offender at least six times since he was
first declared a habitual offender in 1980, and he had been
convicted at least three times.
Appellant argues that, at the time of his 1992 habitual
offender adjudication, the law required appointment of a guardian
ad litem to assist a person under the disability of alcoholism
before a court could obtain jurisdiction over that person. See
Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425 (1990).
He further argues that the evidence presented in the Chesterfield
proceeding proved that, at the time the Charlotte order was
entered, he suffered from the disability of alcoholism and was
not appointed a guardian ad litem. Therefore, he contends,
Chesterfield correctly declared the Charlotte habitual offender
order void ab initio for want of jurisdiction, requiring this
Court to reverse his conviction. He acknowledges this Court's
decision in Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216
(1994) (en banc), but he contends that Pigg does not apply
because it was decided after Chesterfield declared the 1992
habitual offender adjudication void ab initio and it therefore
could not revive that void order.
We disagree with appellant and affirm the trial court's
finding that Chesterfield was without jurisdiction to void
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Charlotte's 1992 habitual offender adjudication. As a general
principle, when a prior order of a court with jurisdiction to
hear a matter is collaterally attacked, "the Commonwealth is
entitled to a presumption of regularity which attends the prior
[judgment] because 'every act of a court of competent
jurisdiction shall be presumed to have been rightly done, till
the contrary appears.'" Nicely v. Commonwealth, 25 Va. App. 579,
584, 490 S.E.2d 281, 283 (1997) (quoting Parke v. Raley, 506 U.S.
20, 30 (1992)) (other citation omitted). As we explained in
Pigg, a judgment is void ab initio only if it "has been procured
by extrinsic or collateral fraud or entered by a court that did
not have jurisdiction over the subject matter or the parties."
Pigg, 17 Va. App. at 760 n.5, 441 S.E.2d at 219 n.5 (quoting Rook
v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 758 (1987)).
Otherwise, a judgment is merely voidable and may be set aside
only (1) by motion made in the trial court within twenty-one days
of the entry of the judgment order under Rule 1:1, (2) on direct
appeal to the appropriate appellate court, or (3) by a bill of
review. See id. (citing Rook, 233 Va. at 95, 353 S.E.2d at 758;
Blount v. Lentz, 241 Va. 547, 550, 404 S.E.2d 62, 64 (1991)).
Here, the Charlotte court "had clear subject matter and
personal jurisdiction in the proceeding against [appellant]. He
was of lawful age and had not been adjudicated incompetent."
Eagleston v. Commonwealth, 18 Va. App. 469, 472, 445 S.E.2d 161,
163 (1994). Nor has appellant proved, under the test we
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explained in Pigg, that his alcoholism deprived the court of
jurisdiction.
Certain persons who are entitled to a
guardian ad litem may waive that right. One
who actually lacks capacity to waive the
right cannot do so. However, one who is
disabled only as a matter of law, such as a
convict, can do so.
An alcoholic is not per se civilly dead.
He may freely execute contracts and deeds.
Unless he actually lacks the capacity to do
so, an alcoholic may waive the appointment of
a guardian ad litem. Therefore, absent a
showing of actual incapacity, a judgment
against an alcoholic is voidable only, not
subject to collateral attack.
Eagleston, 18 Va. App. at 473, 445 S.E.2d at 164 (citing Pigg, 17
Va. App. 756, 441 S.E.2d 216) (other citations omitted).
Although Pigg was decided after the Chesterfield decision,
it did not change the law; it simply clarified that a habitual
offender who claims to have been an alcoholic at the time of his
habitual offender adjudication may not collaterally attack that
adjudication based on the absence of a guardian ad litem unless
he proves "that he was incapable of understanding the [habitual
offender] proceedings or representing himself." Pigg, 17 Va.
App. at 762-63, 441 S.E.2d at 220-21. Here, because appellant
made no such claim, his habitual offender adjudication was
voidable only and was not subject to collateral attack in a
subsequent proceeding. Therefore, Chesterfield lacked
jurisdiction to void the Charlotte habitual offender order, and
the Charlotte order remained in full force and effect.
Ruffin was a decision rendered by a three-judge panel of
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this Court. To the extent it conflicts with Pigg, Ruffin was
overruled by the en banc Court sitting in Pigg. See Pigg, 17 Va.
App. at 762 n.7, 441 S.E.2d at 220-21 n.7.
Because the trial court had jurisdiction over the subject
matter--the charge of driving in Amelia County on September 22,
1995, after having been declared a habitual offender--it was
empowered to review the findings of both Charlotte and
Chesterfield and to conclude that the Charlotte habitual offender
order was in full force and effect on the day of the offense. We
will not disturb its finding.
Appellant further contends his conviction for driving after
Chesterfield had declared the Charlotte habitual offender order
void resulted in a manifest injustice. He did not include this
issue as a question presented in his petition for appeal, raising
it for the first time in his designation of the contents of the
appendix and questions to be presented. Under Rule 5A:12(c),
"[o]nly questions presented in the petition for appeal will be
noticed by the Court of Appeals." Therefore, "no appeal was
granted by this Court on that issue," and appellant may not
unilaterally add it as a new issue. Cruz v. Commonwealth, 12 Va.
App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991). Finally,
unlike Rule 5A:18, Rule 5A:12 contains no "good cause" or "ends
of justice" exceptions. Accordingly, we will not consider
appellant's manifest injustice argument on appeal. 2
2
For the first time at oral argument, appellant articulated
this issue as resulting in a due process violation. Under Rule
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Accordingly, for the reasons stated, the judgment of the
trial court is affirmed.
Affirmed.
5A:12, our review of this argument also is barred.
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