                                COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Haley and Senior Judge Annunziata
Argued at Alexandria, Virginia


ALLAN HAYNES POWELL, S/K/A
 ALLEN HAYNES POWELL,
                                                                MEMORANDUM OPINION* BY
v.      Record No. 2925-05-4                                  JUDGE ROSEMARIE ANNUNZIATA
                                                                     MARCH 13, 2007
COMMONWEALTH OF VIRGINIA


                       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.


        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.”

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       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

                                                -2-
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



       1
         At oral argument, the Commonwealth relied on Code § 8.01-288 to support the
argument that the personal service to Powell a month after the order adjudicating him as a
habitual offender cured any defect in the notice of publication. Code § 8.01-288 provides:

               Except for process commencing actions for divorce or annulment
               of marriage or other actions wherein service of process is
               specifically prescribed by statute, process which has reached the
               person to whom it is directed within the time prescribed by law, if
               any, shall be sufficient although not served or accepted as provided
               in this chapter.

We note only that “[p]rocess is an official notice informing the recipient of a pending action filed
and advising when a response is required.” Bendele v. Va. Dep’t of Med. Assistance Servs., 29
Va. App. 395, 398, 512 S.E.2d 827, 829 (1999) (emphasis added). Powell’s actual notice of the
habitual offender proceeding, received after the entry of the adjudication order, did not excuse
the Commonwealth from complying with the statute regarding notice by publication. “In order
for a court to obtain jurisdiction over the person of a defendant, process must be served in the
manner provided by statute.” Steed v. Commonwealth, 11 Va. App. 175, 178, 397 S.E.2d 281,
284 (1990). “[A] judgment entered by a court which lacks jurisdiction over a defendant is void
against that defendant[.]” Slaughter v. Commonwealth, 222 Va. 787, 791, 284 S.E.2d 824, 826
(1981).

                                               -3-
       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
                                                -4-
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


       2
          Although Virginia cases regarding service by publication have not specifically applied
the presumption of regularity, the cases finding service by publication insufficient rest on
affirmative evidence establishing service had not been accomplished in accordance with the
prevailing statutes. See, e.g., Dennis, 240 Va. at 14-15, 393 S.E.2d at 391-92 (reversing where
the defendant proved that the facts asserted in the affidavit in support of service by publication
were not true); Slaughter, 222 Va. at 790, 284 S.E.2d at 826 (reversing where the defendant
testified that he was living in-state at the time of his habitual offender adjudication and not
out-of-state as the Commonwealth had claimed); Khanna, 18 Va. App. at 359, 443 S.E.2d at 926
(evidence proved defendant’s address was readily ascertainable); Carlton, 14 Va. App. at 113,

                                               -5-
         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.




415 S.E.2d at 604-05 (appellant proved that the trial judge misapplied the law governing notice
by publication by requiring only substantial compliance rather than strict compliance with the
statute). Here, the record includes two informations filed by the prosecutor. Neither contains a
statement regarding the diligence exercised in locating Powell for service of the show cause
order. However, by definition an “information” is a “written accusation of crime” that names the
accused, describes the offense, and states where and when the offense was committed. See Code
§§ 19.2-216 and 19.2-220. An information is issued at the initial stages of a criminal proceeding.
Therefore, by necessity or definition, an information would not be expected to contain a
statement regarding the effort made to effectuate service upon a defendant. Accordingly, we
decline to treat the absence of such a statement in an information as affirmative proof that the
presumption of regularity is not applicable or, if applicable, has been rebutted.

                                                -6-
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 S.E.2d 718, 719-20 (1992)

(habitual offender adjudication order stating the show cause order had been “duly executed”

upon the defendant was sufficient to prove he had notice of the habitual offender proceeding

against him).

       Finally, we note that the presumption of regularity is not affected by the well-established

principle requiring strict compliance with Virginia statutes regarding service by publication.

See, e.g., Carlton, 14 Va. App. at 112, 415 S.E.2d at 604. This principle, heightening the

requirements a party must meet in order to serve process by publication, does not change the

presumption upon collateral attack that the original order conformed to law.

       For these reasons, we hold that Powell did not show that the underlying order

adjudicating him as a habitual offender was void. Accordingly, we affirm the conviction.

                                                                                         Affirmed.




                                               -7-
Benton, J., dissenting.

        I dissent from the majority’s conclusion that the presumption of regularity prevents Allan

Haynes Powell from successfully collaterally attacking the order adjudicating him as a habitual

offender. Powell argues that the “Code sections allowing for service by publication must be

strictly construed” and that the record established the 1976 order adjudicating him a habitual

offender was entered without compliance with these statutes. The case law and the record

support his argument.

                                                      I.

        In 1976, several statutes governed service of process on a person who was to be tried as a

habitual offender. In pertinent part, Code § 46.1-387.4 read as follows:

                The attorney for the Commonwealth, upon receiving the aforesaid
                transcripts or abstracts from the Commissioner, shall forthwith file
                information against the person named therein in the court of record
                having jurisdiction of criminal offenses in the political subdivision
                in which such person resides.

In addition, Code § 46.1-387.5 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.” At that same time in 1976, 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 principle is well established in Virginia that an order of publication, which is in lieu

of process and is a statutory means of notifying a party that his rights will be affected by a court
                                                -8-
proceeding, gives only constructive notice. Dennis v. Jones, 240 Va. 12, 18, 393 S.E.2d 390,

393 (1990); Peatross v. Gray, 181 Va. 847, 858, 27 S.E.2d 203, 209 (1943). “Because the notice

is constructive only, the order of publication and the statutes authorizing it both must be strictly

construed.” Forrer v. Brown, 221 Va. 1098, 1105, 277 S.E.2d 483, 486 (1981); see also

Steinman v. Jessee, 108 Va. 567, 572, 62 S.E. 275, 277 (1908) (holding that absent this strict

construction “a party’s rights cannot be taken from him without a day in court”). Thus, the

statutory requirements, which were contained in Code § 8-71 in 1976, for an affidavit supporting

the issuance of an order of publication must be strictly adhered to. See Dennis, 240 Va. at 18-20,

393 S.E.2d at 393-94 (reversing a conviction where the defendant proved that the facts asserted

in the affidavit in support of service by publication were not true and due diligence was not

used); Slaughter v. Commonwealth, 222 Va. 787, 790, 284 S.E.2d 824, 826 (1981) (reversing a

conviction because the defendant was living in-state at the time of his habitual offender

adjudication, the defendant’s last known address was in Virginia, but the publication notice

proceeded as if the defendant was residing out-of-state); Carlton v. Paxton, 14 Va. App. 105,

113-14, 415 S.E.2d 600, 604-05, aff’d on reh’g en banc, 15 Va. App. 265, 422 S.E.2d 423 (1992)

(reversing a judgment where the record did not show strict compliance with the statute).

                                                 II.

       The evidence in this record proved that in March 1976 a judge of the Circuit Court of the

City of Norfolk issued an order directing Powell to appear in court on April 28th to show cause

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, dated March 22,

1976, which had been filed by an attorney for the Commonwealth as required by Code

§ 46.1-387.4. The information, which is contained in the record, was “subscribed and sworn” by




                                                -9-
the attorney for the Commonwealth before a notary public as an affidavit, and it alleged that

Powell had committed offenses making him eligible for habitual offender status.

       The evidence in this record further proved that, after the sheriff had been unsuccessful in

serving the process and filed his return indicating Powell had moved from his last known address

on Ocean View Avenue, the judge issued a second show cause order directing service of process

upon Powell by publication for a hearing to be held May 21, 1976. This order of March 29,

1976, which is in the record, recites that the publication order was based on the “information . . .

filed in the Circuit Court of the City of Norfolk, on the 22nd day of March 1976.” In pertinent

part, the order further recites the following:

                        It appearing to the Court that said information is in proper
               form, it is therefore Ordered that a certified copy of this Order
               together with a certified transcript or abstracts of conviction record
               maintained in the Office of the Division of Motor Vehicles,
               Richmond, Virginia, relating to the said ALLEN HAYNES
               POWELL be served upon the said ALLEN HAYNES POWELL
               . . . W. Ocean View Ave, Norfolk, Virginia, ordering him to appear
               in Circuit Court of the City of Norfolk. . . .

                           *       *       *       *      *      *       *

                      ALLEN HAYNES POWELL, in the City of Norfolk,
               Please Take Notice that the foregoing Order will be published once
               a week for four successive weeks in the Observer, a newspaper
               having a general circulation in the City of Norfolk.

The certification of the clerk of court was appended to the order, attesting that the order also was

posted on the front door of the courthouse and mailed to Powell at his last known address. The

record contains a copy of the published notice, which is a verbatim recitation of the order of

publication.

       This publication order, which is in the record, was based upon the March 22, 1976 sworn

information. In other words, the same information, which was initially filed before the sheriff




                                                 - 10 -
was unable to find Powell at his last known residence, was relied upon to satisfy the requirement

of Code § 8-71. This affidavit, which is in the record, did not assert, however,

               that diligence has been used . . . to ascertain in what county or
               corporation [Powell] is, without effect, or that process, directed to
               the officer of the county or corporation in which [Powell] resides,
               or is, has twice delivered to such officer more than ten days before
               the return day, and been returned without being executed.

Code § 8-71. Thus, the order of publication improperly relied upon this information, which was

subscribed and sworn as an affidavit, and failed to satisfy the requirements of Code § 8-71.

       Our decision in Carlton is instructive. There, we held that an order was void because

service of process by publication failed to comply with the statute. 14 Va. App. at 113-14, 415

S.E.2d at 604-05. In that case, the natural father of a child filed a complaint in circuit court to

vacate a final order of adoption. 14 Va. App. at 107, 415 S.E.2d at 601. He attacked the decree

partially on the grounds that the court that entered the final adoption order lacked personal

jurisdiction over him. Id. at 108, 415 S.E.2d at 601. The record indicated the court had ordered

service by publication, but the record did not reflect that a copy of the order was ever mailed to

the father’s address stated in the affidavit, as the statute required. Id. at 107-08, 415 S.E.2d at

601. In response to the bill of complaint collaterally attacking the final order of adoption, the

trial judge ruled “it was reasonable to conclude that a mailing had occurred and that there had

thus been substantial compliance with Code § 8.01-317,” even though the record lacked proof

that a copy of the order was mailed to the father. Id. at 108-09, 415 S.E.2d at 602. Upon review,

we applied the long-standing rule that service by order of publication as permitted by statute

constitutes constructive notice and requires strict adherence to its terms. Id. at 112, 415 S.E.2d at

604. Thus, we concluded as follows:

                       In finding substantial compliance with the statute, the trial
               court assumed that the requirement of mailing had actually been
               complied with. However, the evidence did not rise to a level to


                                                - 11 -
               support a finding of actual compliance because of a key omission
               from the record.

Id. at 113, 415 S.E.2d at 604. In this case, as in Carlton, “the evidence did not rise to a level to

support a finding of actual compliance because of a key omission in the record.” Id.

       The rule is well established in Virginia law, that “[a] court acquires no jurisdiction over

the person of a defendant until process is served in the manner provided by statute.” Slaughter,

222 Va. at 791, 284 S.E.2d at 826. When a habitual offender adjudication is obtained without

strictly complying with the publication statutes, the jurisdictional “defect renders the order of

adjudication void ab initio.” Id. at 793, 284 S.E.2d at 827. Due to the insufficiency of the

affidavit under Code § 8-71, the order of publication was invalid and the court lacked personal

jurisdiction over Powell when it adjudicated him as a habitual offender. Thus, the adjudication

order was void for want of jurisdiction.

       The Commonwealth argues that Powell’s reliance on Slaughter is misplaced. In his brief

on appeal, Powell aptly discusses the facts of Slaughter, noting that the “Supreme Court

addressed the issue of defective service and its effect on an habitual offender adjudication” and

further noting that the Supreme Court “overturned Slaughter’s conviction because process had

not been served in the manner provided by statute and thus [held] the Circuit Court . . . lacked

personal jurisdiction over Slaughter.” While the facts of Slaughter are not similar to the facts of

this case, the legal principle applied in Slaughter is germane here: the failure to comply with the

mandatory statutory requirement was a “defect [that] renders the order of adjudication void ab

initio.” 222 Va. at 793, 284 S.E.2d at 827.

       At oral argument, the Commonwealth also relied on Code § 8.01-288 to support the

argument that personal service of the habitual offender order upon Powell a month after entry of

the order adjudicating him as a habitual offender cured any defect in the notice of publication.

Code § 8.01-288 provides:
                                                - 12 -
               Except for process commencing actions for divorce or annulment
               of marriage or other actions wherein service of process is
               specifically prescribed by statute, process which has reached the
               person to whom it is directed within the time prescribed by law, if
               any, shall be sufficient although not served or accepted as provided
               in this chapter.

I agree with the majority opinion’s note that this statute could not cure the defect because

“[p]rocess is an official notice informing the recipient of a pending action filed and advising

when a response is required.” Bendele v. Dep’t of Medical Assistance Servs., 29 Va. App. 395,

398, 512 S.E.2d 827, 829 (1999) (emphasis added). When Powell was served with the order

adjudicating him a habitual offender, the proceeding adjudicating him a habitual offender had

ended and the order was final.

       For these reasons, I would hold the trial judge erred in denying the motion to set aside the

verdict, and I would reverse the conviction and dismiss the indictment.




                                               - 13 -
