Opinion
Record No. 0210-92-3
May 4, 1993
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG RICHARD S. MILLER, JUDGE.
Mark J. Peake (John R. Alford; Caskie Frost, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Phillip Eugene Kerr was convicted of operating a motor vehicle after having been adjudicated an habitual offender in violation of Code § 46.2-357. Kerr contends that the order adjudicating him to be an habitual offender is void because, at the time of the proceeding, he was a person under a disability not represented by counsel who was required by Code § 8.01-9 to have a guardian ad litem appointed to represent him. Without addressing whether Kerr proved that he was a person under a disability at the time of the proceeding, we find that Kerr was, in fact, represented by counsel. Therefore, we affirm Kerr's conviction.
Code § 8.01-9 requires a court in a pending civil suit to appoint a guardian ad litem for a defendant who is "under a disability." Code § 8.01-9(A). A "person under a disability" includes "a person convicted of a felony during the period he is confined." Code § 8.01-2(6)(a). However, if a defendant under a disability is represented by an attorney, "no guardian ad litem need be appointed for such person unless the court determines that the interests of justice require such appointment." Code § 8.01-9(B). Any judgment rendered against a person then under a disability without appointment of a guardian ad litem, but represented by an attorney, "shall be as valid as if the guardian ad litem had been appointed." Id.
On the record before us, we find that Kerr was represented by counsel at the habitual offender proceeding. Therefore, he was not entitled to the appointment of a guardian ad litem under Code § 8.01-9. The record establishes that on July 23, 1983, the trial court granted Kerr a continuance of the habitual offender proceeding "[o]n motion of the accused, by counsel." Moreover, the August 30, 1983, order that adjudicated Kerr to be an habitual offender stated that Kerr appeared personally and that the matter "was argued by Counsel." Kerr argues that no defense counsel endorsed the order as required by Rule 1:13. That fact, standing alone, fails to prove that Kerr was not represented by counsel nor does it refute the recitations in the court's orders. The lack of an endorsement by counsel does not invalidate the order. The order adjudicating Kerr to be an habitual offender directed that a certified copy of the order "shall be served upon the defendant." The sheriff's return on the order indicates that "the above order" was "Executed" on August 30, 1983, the same date it was entered. Where the defendant was personally present at the habitual offender proceeding, was represented by counsel, and was served a certified copy of the order declaring him to be an habitual offender, he cannot now contend that his counsel did not endorse the order as provided by Rule 1:13 or that the order did not recite that the requirement was dispensed with. He raised no objection at the time the order was entered or within the twenty-one days thereafter when the order became final. See Smith v. Stanaway, 242 Va. 286, 410 S.E.2d 610 (1991).
In view of our holding that the record shows that Kerr was present and represented by counsel at the civil habitual offender adjudication, we need not address the Commonwealth's alternative contentions that Kerr did not establish that he was an incarcerated felon at the time of the habitual offender proceeding or that he could not attack collaterally the habitual offender order on the ground that as an incarcerated felon, he was entitled to a guardian ad litem. Because we find that Kerr was not entitled to the appointment of a guardian ad litem because he had counsel, we do not address his contention that process should have been served on his guardian ad litem and not on him.
Accordingly, the evidence fails to prove that the order adjudicating Kerr to be an habitual offender was invalid; therefore, the conviction for operating a motor vehicle after having been declared an habitual offender is affirmed.
Affirmed.