COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

WILLIAM MATTHEW THOMPSON 

 OPINION BY 

v. Record No. 2860-96-2 JUDGE JOSEPH E. BAKER 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF AMELIA COUNTY 

Thomas V. Warren, Judge 

 A. Pierre Jackson (Law Office of A. Pierre 

Jackson, on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee 

 William Matthew Thompson (appellant) appeals from his bench 

trial conviction by the Amelia County Circuit Court (trial court) 

for driving after having been declared a habitual offender, 

second offense, in violation of Code § 46.2-357. Appellant 

argues that because the habitual offender order had been declared 

void ab initio, the trial court could not convict him for 

violating that order. In the alternative, appellant asserts that 

allowing his conviction to stand would result in a manifest 

injustice. For the reasons that follow, we affirm the judgment 

of the trial court. 

 The relevant facts are not in dispute.1

 On September 2, 

1980, the Charlotte County Circuit Court (Charlotte) declared 

 

 1The facts are derived from a short statement of facts, 

filed in lieu of a transcript, and various court orders. 
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appellant an habitual offender and directed that he not drive a 

motor vehicle for a period of ten years. On September 8, 1992, 

after a period of incarceration for violation of the 1980 

habitual offender order, Charlotte again declared him an habitual 

offender and ordered that his license be suspended for another 

ten years. Following entry of that order, appellant was arrested 

for driving a vehicle in Chesterfield County on May 5, 1993, and 

charged with violating the 1992 Charlotte habitual offender 

order. At a hearing before the Chesterfield County Circuit Court 

(Chesterfield), appellant argued that the 1992 Charlotte habitual 

offender order was void because he "was under a disability of 

alcoholism" at the time of that proceeding and "no guardian 

ad litem had been appointed for him." Chesterfield agreed and 

declared the Charlotte habitual offender order void ab initio. 

 Thereafter, appellant was charged with driving in Amelia 

County on September 22, 1995, in violation of the Charlotte 

habitual offender order. On July 11, 1996, the trial court heard 

evidence offered in proof of the Amelia County charge. The sole 

issue in dispute before the trial court was whether 

Chesterfield's 1993 order declaring the Charlotte habitual 

offender order void ab initio was binding on the trial court so 

as to require dismissal of the Amelia County charge. "After 

hearing all the evidence, the Amelia County Circuit Court ruled 

that the decision by the Chesterfield County Circuit Court 

voiding the Charlotte County Circuit Court habitual offender 
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adjudication was ineffectual," and it "found [appellant] guilty 

as charged." 

 Appellant had been charged with driving after having been 

declared a habitual offender at least six times since he was 

first declared a habitual offender in 1980, and he had been 

convicted at least three times. 

 Appellant argues that, at the time of his 1992 habitual 

offender adjudication, the law required appointment of a guardian 

ad litem to assist a person under the disability of alcoholism 

before a court could obtain jurisdiction over that person. See

Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425 (1990). 

He further argues that the evidence presented in the Chesterfield 

proceeding proved that, at the time the Charlotte order was 

entered, he suffered from the disability of alcoholism and was 

not appointed a guardian ad litem. Therefore, he contends, 

Chesterfield correctly declared the Charlotte habitual offender 

order void ab initio for want of jurisdiction, requiring this 

Court to reverse his conviction. He acknowledges this Court's 

decision in Pigg v. Commonwealth, 17 Va. App. 756, 441 S.E.2d 216 

(1994) (en banc), but he contends that Pigg does not apply 

because it was decided after Chesterfield declared the 1992 

habitual offender adjudication void ab initio and it therefore 

could not revive that void order. 

 We disagree with appellant and affirm the trial court's 

finding that Chesterfield was without jurisdiction to void 
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Charlotte's 1992 habitual offender adjudication. As 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.'" Nicely v. Commonwealth, 25 Va. App. 579, 

584, 490 S.E.2d 281, 283 (1997) (quoting Parke v. Raley, 506 U.S. 

20, 30 (1992)) (other citation omitted). As we explained in 

Pigg, a judgment is void ab initio only if it "has been procured 

by extrinsic or collateral fraud or entered by a court that did 

not have jurisdiction over the subject matter or the parties." 

Pigg, 17 Va. App. at 760 n.5, 441 S.E.2d at 219 n.5 (quoting Rook 

v. Rook, 233 Va. 92, 94-95, 353 S.E.2d 756, 758 (1987)). 

Otherwise, a judgment is merely voidable and may be set aside 

only (1) by motion made in the trial court within twenty-one days 

of the entry of the judgment order under Rule 1:1, (2) on direct 

appeal to the appropriate appellate court, or (3) by a bill of 

review. See id. (citing Rook, 233 Va. at 95, 353 S.E.2d at 758; 

Blount v. Lentz, 241 Va. 547, 550, 404 S.E.2d 62, 64 (1991)). 

 Here, the Charlotte court "had clear subject matter and 

personal jurisdiction in the proceeding against [appellant]. He 

was of lawful age and had not been adjudicated incompetent." 

Eagleston v. Commonwealth, 18 Va. App. 469, 472, 445 S.E.2d 161, 

163 (1994). Nor has appellant proved, under the test we 
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explained in Pigg, that his alcoholism deprived the court of 

jurisdiction. 

 Certain persons who are entitled to a 

guardian ad litem may waive that right. One 

who actually lacks capacity to waive the 

right cannot do so. However, one who is 

disabled only as a matter of law, such as a 

convict, can do so. 

 An alcoholic is not per se civilly dead. 

 He may freely execute contracts and deeds. 

Unless he actually lacks the capacity to do 

so, an alcoholic may waive the appointment of 

a guardian ad litem. Therefore, absent a 

showing of actual incapacity, a judgment 

against an alcoholic is voidable only, not 

subject to collateral attack. 

Eagleston, 18 Va. App. at 473, 445 S.E.2d at 164 (citing Pigg, 17 

Va. App. 756, 441 S.E.2d 216) (other citations omitted). 

 Although Pigg was decided after the Chesterfield decision, 

it did not change the law; it simply clarified that a habitual 

offender who claims to have been an alcoholic at the time of his 

habitual offender adjudication may not collaterally attack that 

adjudication based on the absence of a guardian ad litem unless 

he proves "that he was incapable of understanding the [habitual 

offender] proceedings or representing himself." Pigg, 17 Va. 

App. at 762-63, 441 S.E.2d at 220-21. Here, because appellant 

made no such claim, his habitual offender adjudication was 

voidable only and was not subject to collateral attack in a 

subsequent proceeding. Therefore, Chesterfield lacked 

jurisdiction to void the Charlotte habitual offender order, and 

the Charlotte order remained in full force and effect. 

Ruffin was a decision rendered by a three-judge panel of 
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this Court. To the extent it conflicts with Pigg, Ruffin was 

overruled by the en banc Court sitting in Pigg. See Pigg, 17 Va. 

App. at 762 n.7, 441 S.E.2d at 220-21 n.7. 

 Because the trial court had jurisdiction over the subject 

matter--the charge of driving in Amelia County on September 22, 

1995, after having been declared a habitual offender--it was 

empowered to review the findings of both Charlotte and 

Chesterfield and to conclude that the Charlotte habitual offender 

order was in full force and effect on the day of the offense. We 

will not disturb its finding. 

 Appellant further contends his conviction for driving after 

Chesterfield had declared the Charlotte habitual offender order 

void resulted in a manifest injustice. He did not include this 

issue as a question presented in his petition for appeal, raising 

it for the first time in his designation of the contents of the 

appendix and questions to be presented. Under Rule 5A:12(c), 

"[o]nly questions presented in the petition for appeal will be 

noticed by the Court of Appeals." Therefore, "no appeal was 

granted by this Court on that issue," and appellant may not 

unilaterally add it as a new issue. Cruz v. Commonwealth, 12 Va. 

App. 661, 664 n.1, 406 S.E.2d 406, 407 n.1 (1991). Finally, 

unlike Rule 5A:18, Rule 5A:12 contains no "good cause" or "ends 

of justice" exceptions. Accordingly, we will not consider 

appellant's manifest injustice argument on appeal.2

 

 2For the first time at oral argument, appellant articulated 

this issue as resulting in a due process violation. Under Rule 
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 Accordingly, for the reasons stated, the judgment of the 

trial court is affirmed. 

 Affirmed.

 

5A:12, our review of this argument also is barred.