Hornberger v. Commonwealth

Full title: KEITH CLAYTON HORNBERGER v. COMMONWEALTH OF VIRGINIA

Court: Court of Appeals of Virginia. Alexandria

Date published: Mar 1, 1994

Record No. 0819-92-4 (Va. Ct. App. Mar. 1, 1994)

Opinion

Record No. 0819-92-4

March 1, 1994

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY F. BRUCE BACH, JUDGE.

Robert C. Whitestone (Bradley T. Chase; Whitestone, Brent, Young Merril, P.C., on brief), for appellant.

Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judge Fitzpatrick and Senior Judge Duff.^_

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

Argued at Alexandria, Virginia.

MEMORANDUM OPINION^_

_ Pursuant to Code § 17-116.010 this opinion is not designated for publication.

CHIEF JUDGE NORMAN K. MOON.

Appellant, Keith Clayton Hornberger, was convicted of operating a motor vehicle after having been declared an habitual offender. On appeal, Hornberger argues that because he was an alcoholic at the time of his adjudication and a guardian ad litem was not appointed for him for the adjudication proceeding, his habitual offender adjudication was void and the trial judge was required to dismiss his indictment. We disagree. Assuming arguendo that the adjudication was void if appellant was incompetent at the time thereof,¹ appellant had the burden of proving that he was incompetent. Here, the trial judge was not persuaded that Hornberger was incompetent at the time of his habitual offender adjudication. Having failed in such proof, this case is, therefore, controlled by Pigg v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___, (1994), and we affirm the conviction.

1 See Pigg v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ fn. 8 (1994).

Affirmed.