Graham v. Commonwealth , 18 Va. App. 303 ( 1994 )

Opinion

ELDER, J.

Alan Ray Graham was convicted in the trial court under Code § 46.2-357 of driving after having been declared an habitual offender. On appeal, he attempts to collaterally attack his underlying habitual offender adjudication, arguing that the adjudication was void for lack of jurisdiction (1) because, as an alcoholic, he was a person under a disability and was therefore entitled to the appointment of a guardian ad litem-, and (2) because the proceedings were initiated in a county other than the one in which he resided at the time. For the reasons that follow, we affirm appellant’s conviction.

On November 14, 1986, appellant was personally served while in the Henrico County Jail with an order issued by the Henrico County Circuit Court directing him to appear on December 16, 1986, to show cause as to why he should not be declared an habitual offender. Appellant failed to appear on that date, was adjudicated an habitual offender in his absence, and was served with a copy of the adjudication on February 3, 1987, in Hanover County.

On August 23, 1991, appellant was arrested for driving after having been declared an habitual offender, and he was subsequently indicted on the same charge. On February 10, 1992, he moved to dismiss on the ground that the habitual offender adjudication was void because it was not brought in his county of residence. The evidence showed that appellant’s address on record with the Division of Motor Vehicles (DMV) was a Henrico County address which he provided when he applied for a Virginia driver’s license. Although appellant moved to Hanover County when he separated from his wife in March 1986, he testified that he did not notify the DMV of that change because he expected to reconcile with his wife and return to the Henrico address and because his license was suspended at that time. He did, however, provide a Hanover County address on the certificate of title he submitted to the DMV when he purchased a car on September 25, 1986. It is undisputed that appellant resided in Hanover County from March 1986, until some time after the habitual offender adjudication, although he was incarcerated periodically during that time period. The trial court ultimately ruled that the Henrico County Circuit Court had jurisdiction and that the habitual offender adjudication was valid.

Appellant filed a second motion to dismiss on April 22, 1992, and argued that his adjudication was void for want of jurisdiction on the ground that he was an alcoholic and had been declared an habitual offender without benefit of the appointment of a guardian ad litem. He presented testimony from Dr. Niazi, a psychiatrist, outlining appellant’s history of alcohol abuse dating back to age fifteen; voluntary hospitalization for alcoholism and depression in August 1985, and June and September 1986; and involuntary hospitalization in October 1986. Dr. Niazi also testified that appellant suffered from severe alcoholism and during the period from November 3 to December 16, 1986, was dangerous to both the public and himself and was in need of medical psychiatric care, treatment, rehabilitation and counseling. Dr. Niazi also admitted on cross-examination that appellant would probably be able to understand the legal process if he were sober and not suffering from alcohol withdrawal. Appellant presented other extensive evidence of his continuing problem with alcohol in the form of seventeen other alcohol-related offenses and the testimony of his parents concerning his addiction. The trial court denied the motion to dismiss on the ground that the evidence showed appellant was in jail at the time of the declaration and failed to show that he was suffering from any sort of alcohol withdrawal. It concluded “consequently [that appellant was] not in need of a guardian ad litem."

Appellant was subsequently convicted of driving after having been declared an habitual offender.

I.

Appellant contends first that the trial court erred in declaring him an habitual offender in the absence of a guardian ad litem. He argues that his adjudication is void because he was a person under a disability, as defined in Code § 37.1-1, at the time of his adjudication and a guardian ad litem was not appointed for him.

This case is governed by our recent decision in Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216 (1994) (en banc), in which we held that an habitual offender adjudication rendered against a person under a disability for whom no guardian ad litem has been appointed is merely voidable. Absent a showing that the offender was incapable of understanding the nature of the proceedings against him or of defending his interest, he may not collaterally attack the habitual offender adjudication.

The record in this case shows that appellant was personally served with a show cause order on November 14, 1986, while in jail. He was adjudicated an habitual offender in his absence on December 16, 1986, and was served with a copy of the adjudication on February 3, 1987. Although appellant presented evidence to show that he was an alcoholic at the time of the adjudication, his expert witness testified that appellant would have been able to understand the legal process if he were sober and not suffering from alcohol withdrawal. Appellant presented no evidence to show that, at the time he received the show cause order in jail, he was suffering from any sort of alcohol withdrawal which would have prevented him from understanding the nature of the proceedings against him. Accordingly, appellant’s adjudication in the absence of a guardian ad litem is voidable only and may not be set aside in a collateral proceeding.

II.

As to appellant’s second assignment of error, we hold that the fact that his habitual offender adjudication was rendered in Henrico County when his actual place of residence was in Hanover County is not fatal to the court’s jurisdiction.

At all times relevant to this case, Code §§ 46.2-352 and 46.2-353, respectively, provided as follows:

§ 46.2-352. . . . The Commissioner shall certify, from the Department’s records, . . . [the necessary documents] to the attorney for the Commonwealth of the political subdivision in which the person resides according to the records of the Department ....

§ 46.2-353. . . . The attorney for the Commonwealth, [upon receiving those documents], shall forthwith file information against the person named therein in the court of record having jurisdiction of criminal offenses in the county, city, or town in which the person resides. ... In the event the accused is an inmate of a state correctional facility, jurisdiction for the proceedings shall be in the locality wherein the accused is confined.

(Emphasis added). As argued by the Commonwealth, these Code Sections must be read in pari materia, such that the phrase, “in which the person resides,” as used in Code § 46.2-353, is read to include the modifier, “according to the records of the Department,” as used in Code § 46.2-352. See Prillaman v. Commonwealth, 199 Va. 401, 405, 100 S.E.2d 4, 7 (1957); Nelson v. County of Henrico, 10 Va. App. 558, 561, 393 S.E.2d 644, 646 (1990). Indeed, the legislature subsequently amended Code § 46.2-353 to include this phrase in order to resolve any confusion or doubt.¹ Accordingly, the filing of the information in Henrico County was proper, because the last address reported by appellant to the DMV for purposes of the issuance of a driver’s license was located in that county.² It is irrelevant that appellant’s driver’s license had been suspended at the time.

For these reasons, we affirm appellant’s conviction under Code § 46.2-357.

Affirmed.

Duff, S.J.,^* concurred.

1 As amended in 1993, Code § 46.2-353 provides that:

The attorney for the Commonwealth, . . . [upon receiving certain documents], shall forthwith file information against the person named therein in the court of record having jurisdiction of criminal offenses in the county, city, or town in which Department of Motor Vehicle records indicate to be the person’s latest address.

Code § 46.2-353 (emphasis added).

2 The fact that appellant listed a Hanover County address on a certificate of title filed with the DMV is irrelevant, because the Habitual Offender Act deals with the revocation of an offender’s driver’s license and not with his registration or ownership of vehicles.

* Judge Charles H. Duff was appointed Senior Judge effective July 1, 1993, pursuant to Code § 17-116.01:1.