Powell v. Commonwealth, Record No. 2925-05-4 (Va. App. 3/13/2007)

• Decision Date: 13 March 2007
• Docket Number: Record No. 2925-05-4.
• Court: Virginia Court of Appeals
• Parties: ALLAN HAYNES POWELL, S/K/A ALLEN HAYNES POWELL, v. COMMONWEALTH OF VIRGINIA.

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Unpublished Opinion

ALLAN HAYNES POWELL, S/K/A ALLEN HAYNES POWELL, v. COMMONWEALTH OF VIRGINIA.

Record No. 2925-05-4.

In the Court of Appeals of Virginia, Alexandria.

March 13, 2007.

Appeal from the Circuit Court of Fairfax County, Jane Marum Roush, Judge.

Mark J. Yeager (Anna K. Livingston, Assistant Public Defender, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: Judges Benton, Haley and Senior Judge Annunziata

MEMORANDUM OPINION^*

JUDGE ROSEMARIE ANNUNZIATA.

Allan Haynes Powell appeals his conviction for driving with a revoked license while a habitual offender. He contends that the underlying order adjudicating him as a habitual offender was void and, thus, his conviction for driving while a habitual offender should be reversed. We hold that the underlying order was valid, and we affirm the conviction.

I.

The evidence at trial proved that on March 29, 2005, Officer James Sheeran detained Powell in Fairfax County because Powell was driving a vehicle with an expired inspection sticker. Powell did not have a valid driver's license and initially gave the officer an alias. The officer testified Powell later admitted that "he had lied about the name, and that he had lied because he was a habitual offender."

The trial record also establishes that in March 1976 a judge of the Circuit Court of the City of Norfolk ordered Powell to appear on April 28th to show why he should not be barred from operating a motor vehicle in the state in accordance with the habitual offender statute. The show cause order referred to an information filed by an attorney for the Commonwealth on March 22, 1976, and the order provided for service upon appellant at "612 W. Ocean View Ave, Norfolk, Virginia," which the Division of Motor Vehicles (DMV) had certified as Powell's most recent address. The sheriff's return on the show cause order stated that Powell could not be found because he had moved six to eight months previously. Based upon a second information dated March 22, 1976, in which the prosecutor requested a show cause hearing on May 21, 1976, the circuit court judge issued a new show cause order. In the order, the circuit court judge set a show cause hearing on May 21, 1976 and ordered service upon Powell by publication in a newspaper having general circulation in the City of Norfolk. Powell was not present at the May 21 hearing when the circuit court judge found that Powell was a habitual offender. In doing so, the judge noted in his order "that [Powell] has been duly cited to appear and could not be served with process and that [notice] has been published once a week for four successive weeks in a newspaper with general circulation in the City of Norfolk." The judge entered the order adjudicating Powell to be a habitual offender on May 21, 1976.

After considering this evidence and at the conclusion of all the evidence at the trial in Fairfax County, the trial judge denied Powell's motions to strike the evidence and convicted Powell of driving on a revoked operator's license after having been adjudicated a habitual offender. See Code § 46.2-357. Powell filed three successive motions to set aside the verdict. The last of the three motions alleged the underlying habitual offender adjudication was "void because the Circuit Court of the City of Norfolk lacked personal jurisdiction over . . . Powell" due to improper service by order of publication. The trial judge denied the motions, ruling on the last motion that the Commonwealth was entitled to "rely on his most recent address on the DMV records in serving him with the show cause." The trial judge also noted in her ruling that Powell "was personally served with the court's order adjudicating him an habitual offender on June 30, 1976 in the City of Norfolk."

II.

Powell appeals his conviction for driving while a habitual offender. He challenges the underlying 1976 adjudication of him as a habitual offender on the ground that service was defective. Specifically, he contends that the adjudication order is void because the Commonwealth failed to prove it met the requirements for service by publication as required by the statutes in effect in 1976. The Commonwealth responds that the service by publication was proper and, nonetheless, Powell's actual knowledge of his habitual offender status rendered any defect in the underlying order inconsequential.¹

Code § 46.2-357(A) provides, in pertinent part: "It shall be unlawful for any person determined or adjudicated an habitual offender to drive any motor vehicle . . . on the highways of the Commonwealth while the revocation of the person's driving privilege remains in effect." In 1976, the statute governing service on a person named as a habitual offender provided that "[a] copy of the show cause order and such transcript or abstract [of conviction record] shall be served on the person named therein in the manner prescribed by law for the service of notices." Code § 46.1-387.5 (1950) (repealed 1989). At the time, the statute governing service by publication provided as follows:

On affidavit that a defendant is a foreign corporation or not a resident of this State, or that diligence has been used by or on behalf of the plaintiff to ascertain in what county or corporation he is, without effect, or that process, directed to the officer of the county or corporation in which he resides, or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed, an order of publication may be entered against the defendant.

Code § 8-71 (1950) (current version at Code § 8.01-316).

The object of the Virginia statutes authorizing service by publication "`is to protect parties by giving them notice and an opportunity to present a defense. Because service by publication constitutes constructive notice only, these sections must be strictly construed.'" Khanna v. Khanna, 18 Va. App. 356, 358, 443 S.E.2d 924, 926 (1994) (quoting Carlton v. Paxton, 14 Va. App. 105, 112, 415 S.E.2d 600, 604 (1992)). In this context, the requirement of diligence in searching for a defendant's location means "`devoted and painstaking application to accomplish an undertaking.'" Id. (quoting Dennis v. Jones, 240 Va. 12, 19, 393 S.E.2d 390, 393 (1990)).

The record contains no affidavit in which the prosecutor swore that he exercised diligence in searching for Powell to serve him with the initial show cause order and transcript of his driving record. The record shows that after the sheriff's return indicated personal service could not be made upon Powell at the address he had provided DMV, the circuit court judge entered a show cause order providing that appellant be served by publication. Thereafter, at the show cause hearing on May 21, the trial judge ordered that Powell "had been duly cited to appear and could not be served with process."

"Courts are presumed to act in accordance with the law and orders of the court are entitled to a presumption of regularity." Napert v. Napert, 261 Va. 45, 47, 540 S.E.2d 882, 884 (2001). In other words,

"[a]s 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."'"

Clements v. Commonwealth, 43 Va. App. 56, 60, 596 S.E.2d 88, 89-90 (2004) (quoting Thompson v. Commonwealth, 27 Va. App. 620, 624, 500 S.E.2d 823, 824-25 (1998)). Thus, in his collateral attack of the order adjudicating him a habitual offender, Powell bore the burden of rebutting the presumption that the order correctly stated service by publication had been accomplished in accordance with the statute in effect in 1976. See Sawyer v. Commonwealth, 43 Va. App. 42, 52-53, 596 S.E.2d 81, 86 (2004) (upholding the admission of evidence of an earlier uncounseled conviction because appellant did not produce evidence rebutting the presumption of regularity).²

Powell presented the following evidence: the DMV certified his most recent address as of 1976 in Norfolk, Virginia; he had moved six to eight months previously; the Norfolk sheriff was unable to provide personal service; and the Circuit Court of the City of Norfolk provided service by publication in the Norfolk City newspaper. Powell did not present any affirmative evidence showing that the Commonwealth did not comply with the requirements of Code § 8-71. Instead, he relies on the absence in the record of an affidavit of diligence.

Whether the absence of an affidavit of diligence in the record rebuts the presumption of regularity afforded a court order based on notice by publication has not been addressed by the Commonwealth's appellate courts. In Virginia & West Virginia Coal Co. v. Charles, 251 F. 83, 114 (W.D. Va. 1917), aff'd 254 F. 379 (4th Cir. 1918), however, the court held that a decree stating an order of publication had been "duly published and executed" was not open to collateral attack based on the absence of the affidavit in the record. Specifically, the authoring judge wrote:

The statute [governing notice by publication] . . . does not in terms require that the affidavit be reduced to writing, nor do I know of any requirement, if it was reduced to writing, that it appear as part of the record. But, if there is any defect in this respect, the presumption in favor of the regularity of the proceeding covers the point.

Id. See also 1 Charles E. Friend, Virginia Pleading and Practice § 4-3(f), at 142 n.231 (1998). We hold that the absence of the affidavit in this case does not rebut the presumption of regularity afforded the adjudication order stating that notice by publication was done in accordance with the statute. See Reed v. Commonwealth, 15 Va. App. 467, 470, 424...