COURT OF APPEAL S OF VIRGINIA

Present: Judg es Coleman, Elder an d Senior Judge Cole Argued at Salem, Virginia

JOHN TYSON MEMORANDUM OPINION * BY v. Record No. 2965-98- 3 JUDGE MARVIN F. COLE MARCH 28, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY George E. Honts, III, Judge William E. Bobbitt, Jr., Public Defender, for appellant. Michael T. Judge, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

John Tyson (appellant) appeals from his conviction in the Circuit Court of Rockbr idge County for drivin g after having been adjudicated an habitu al offender. Appe llant contends his conviction must be re versed because the cour t that adjudicated him an habitual offender lacked jurisdiction and its order was therefore void. For the reason s that follow, we affirm the judgment of th e trial court. In convicting appellant, the trial court relied on a January 20, 1976 order from th e Alexandria Circuit Court that declared appellant to be an habitual offender. The 1976 order reflected

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.that appellant had be en served on Decemb er 5, 1975, with a December 4, 1975 show cause order. The show caus e order listed appellant's ad dress as 2400 Te rret Avenue, Alex andria, Vi rginia. Appellant did not appear for the ad judication hearing. On August 25, 1992 , appellant pl eaded guilty in Fairfax County Circuit Court to driving after be ing adjudi cated an habitual offender. 1 The convic tion order re flected that appellant's ad dress was 2400 Te rret Avenue, Alex andria, Vi rginia. At his trial in the present case, ap pellant testif ied that he was a resident of Washington, D.C. , on January 20 , 1976, and the eighteen months pr eceding. He deni ed receiving noti ce of the show cause or the adjudicati on order. Appellan t testified that he moved back to th e Terret Avenue address some time around 1980. Appellant pres ented no evidence to corr oborate his te stimony. After finding appellant guilty, the trial court indicated that it would consider at the sentencing hearing any additional evidence tending to prove that appellant was residing in Washington, D.C., at the time he was adjudicated an habitual offender. At that hearing, however, appellant stated he had no additional evidence to present on this issue. In his brief, appellant refers both to the fact that the Alexandria court did not have jurisdiction "over him" and that,

1 Although the Fairfax order did not refer to the 1976 Alexandria order, there is nothing in the record indicating that appellant had been declared an habitual offender by any other Virginia court. - 2 -because he was a non-resident, the Circuit Court for the City of Richmond had jurisdiction over the adjudication proceeding pursuant to Code § 46.1-387.4 (repealed 1989). Thus, whether intentionally or not, appellant raises issues of personal jurisdiction and subject matter jurisdiction. Personal Jurisdiction "A court acquires no jurisdiction over the person of a defendant until pr ocess is served in th e manner provided by statute, and a judgment entered by a court wh ich lacks [p ersonal] jurisdiction over a defendant is void as against that defendant." Slaughter v. Commonwealth , 222 Va. 787, 791, 284 S.E.2d 824, 826 (1981) (citations omitted). The Alexandria Circuit Cour t adjudicated ap pellant as a resident habitual offe nder. At the time of that proceeding, former Code § 46.1 -387.3 required the Commissi oner of th e Division of Motor Vehicles (DMV ) to certify tr anscripts or ab stracts of the defendant's conv iction record "to th e attorney for the Commonwealth of the political subd ivision in whic h such person resides accord ing to the records of the Division." The defendant had to be personal ly served with a copy of the show cause order.
See Code § 46.1-387.5 (repealed 1989); Code § 8.01-296(1). We have previously held that "[i]n th e absence of clear evidence to the contrary, cour ts may presume that public officers have properly disc harged their offi cial duties." Robertson v. Commonwealth , 12 Va. App. 854, 856-57, 406 S.E.2d 417, 418 (1991) - 3 -(holding that th ere was a presumpt ion that postal clerks had not mishandled evidence tr ansported throug h the mail). And once this presumption at taches, it is up to the defendan t to rebut it. See Harris v. Commonwealth , 26 Va. App. 794, 80 3-04, 497 S. E.2d 165, 170 (1998) (holding that once the presum ption of regularity attaches to a cr iminal conviction , the defendant ha s the burden of producing evid ence to rebut th at presumption). The Alexandria show cause order woul d have been served by a public officer and, wh ere the adjudica tion order reflects that appellant was serv ed, we can presum e that the offi cer personally served appellant in co mpliance with Code §§ 46.1-387.5 and 8.01-296(1). Cf. Slaughter , 222 Va. at 794, 284 S.E.2d at 828 (holding that th e adjudicating court lacked personal jurisdiction where service was made on the Secr etary of the Comm onwealth as if the defendant was a non-resident, bu t the evidence pr oved that the defendant was a re sident of the Co mmonwealth). Al though appellant testified that he was not served, the trial court wa s not required to believe this testim ony, and could conclude that appellant was lying to avoid be ing convic ted. See Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). The presumption that appellant was properly served is supported by the evidence tending to prove that appellant was living in Alexandria in 1975-76. The show cause order reflected that appellant had an Alexandria address, and the Commissioner of DMV was required by statute to certify the case to the - 4 -locality where DMV records reflected the defendant resided. See Code § 46.1-387.3 (repealed 1989); see also Bouldin v. Commonwealth , 4 Va. App. 166, 169, 355 S.E.2d 352, 354 (1987) (there is a "presumption that the Commissioner of DMV has kept accurate records"). Appellant resided at this same Alexandria address when he pleaded guilty to driving as an habitual offender in 1992. And appellant presented no evidence corroborating his testimony that he was living in Washington, D.C., in 1975-76. Cf. Slaughter , 222 Va. at 794, 284 S.E.2d at 828 (finding uncontroverted evidence that the defendant was a Virginia resident where the defendant and his wife testified to this effect, and DMV records reflected that appellant's last known address was in Virginia). Accordingly, the evidence sufficiently proved that the Alexandria Circuit Court obtained personal jurisdiction over appellant before adjudicating him an habitual offender. Subject Matter Jurisdiction "Generally, the party asserting that a judgment is void for lack of subject matter jurisdiction has the burden of proving that fact." Winston v. Commonwealth , 26 Va. App. 746, 752, 497 S.E.2d 141, 144-45 (1998). Appellant contends that because he was a resident of Washington, D.C., in 1975-76, subject matter jurisdiction of the habitual offender proceeding lay solely in the Circuit Court for the City of Richmond. We disagree. - 5 -In Wright v. Commonwealth , 11 Va. App. 527, 399 S.E.2d 449 (1990), we concluded that former Code § 46.1-387.4 was not a jurisdictional statute, but rather established venue for habitual offender proceedings. See id. at 528-29, 399 S.E.2d at 449-50; Slaughter , 222 Va. at 791, 284 S.E.2d at 826 (referring to where an habitual offender case is brought as a question of venue); see also 1974-75 Va. Att'y Gen. Rep. 285, 74-75 Va. AG 285 (opining that Code § 17-123 controlled jurisdiction in habitual offender adjudications and that Code §§ 46.1-387.3 and 46.1-387.4 were venue statutes). We further held that an habitual offender proceeding was a civil proceeding subject to Code § 8.01-264. See Wright , 11 Va. App. at 529, 399 S.E.2d at 449-50. Under Code § 8.01-264, an objection to venue is waived if not raised in a timely manner. And "[n]o order, judgment, or decree shall be voidable, avoided, or subject to collateral attack solely on the ground that there was improper venue." Code § 8.01-258. Even if we assume that appellant was a non-resident of Virginia at the time he was adjudicated an habitual offender, where the habitual offender proceeding was brought was a matter of venue, not jurisdiction. The Alexandria Circuit Court had subject matter jurisdiction over the habitual offender proceeding pursuant to then Code § 17-123 (repealed 1998) (regarding circuit courts' general jurisdiction over civil cases

- 6 -at law). Accordingly, appellant could not collaterally attack the 1976 adjudication at his trial. For the reasons stated above, the judgment of the trial court is affirmed. Affirmed.

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