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Lowe v. Commonwealth1/14/2003
Argued at Salem, Virginia
MEMORANDUM OPINION
Daniel Matthew Lowe (Lowe) appeals a ruling of the Circuit Court of Smyth County denying his motion to vacate a previous order of the Circuit Court of Tazewell County in which he was adjudicated an habitual offender. For the reasons that follow, we affirm the ruling of the trial court.
I. BACKGROUND
On March 18, 1991, Judge Donald Mullins of the Circuit Court of Tazewell County found Lowe in violation of the terms of his probation and revoked four years of his previously suspended sentence. On April 25, 1991, while incarcerated in the Tazewell County jail awaiting transport to a state correctional facility, Lowe was personally served with an order to show cause why he should not be adjudicated an habitual offender. The show cause order had been issued the previous day by Judge Mullins. On April 26, 1991, Lowe was transferred to Deep Meadow Correctional Center to serve the remainder of his four-year sentence.
Lowe's habitual offender hearing was held in the Circuit Court of Tazewell County on May 16, 1991, the day indicated on his notice. Lowe was not present in person or represented by counsel, and no guardian ad litem was appointed to represent him. Judge Mullins presided and adjudicated Lowe an habitual offender by an order dated June 6, 1991. The clerk of court mailed a copy of the order to Lowe at the Powhatan Correctional Center. Lowe was actually incarcerated elsewhere at that time.
On July 14, 2001, Lowe was arrested in Smyth County for driving under the influence and driving after being adjudicated an habitual offender. Lowe moved the Circuit Court of Smyth County to vacate the 1991 habitual offender adjudication on the grounds that it was procured by extrinsic fraud on the court. He alleged his absence from the habitual offender proceeding constituted extrinsic fraud on the court because the Commonwealth knew of his incarceration and a guardian ad litem was not appointed to protect his interests. Lowe entered a conditional plea of guilty to the charge of driving after being adjudicated an habitual offender, second offense, pursuant to a plea agreement that preserved his right to appeal the trial court's denial of his motion to vacate the 1991 adjudication order. He now appeals to this Court.
II. ANALYSIS
In Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216 (1994) (en banc), this Court held that infancy under Code § 8.01-2(6)(b) is the only statutory disability that renders a judgment void for failure to appoint a guardian ad litem under Code § 8.01-9(A). We explicitly rejected the contention "that a judgment entered against a person under any of the other enumerated statutory disabilities is void ab initio if rendered without the appointment of a guardian ad litem." Id. at 760, 441 S.E.2d at 219; see also England v. Commonwealth, 18 Va. App. 121, 442 S.E.2d 402 (1994) (holding that failure to appoint a guardian ad litem in an habitual offender adjudication makes the judgment voidable, not void). We also stated in Pigg that a judgment against an alcoholic is voidable, not void, "just as a judgment rendered against a convict is merely voidable." Pigg, 17 Va. App. at 762, 441 S.E.2d at 220.
The distinction between an action of the court that is void ab initio rather than merely voidable is that the former involves the underlying authority of a court to act on a matter whereas the latter involves actions taken by a court which are in error. An order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it
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