                       COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Agee and Kelsey
Argued at Salem, Virginia


DANIEL MATTHEW LOWE
                                              MEMORANDUM OPINION * BY
v.   Record No. 0036-02-3                      JUDGE G. STEVEN AGEE
                                                 JANUARY 14, 2003
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF SMYTH COUNTY
                   A. Dow Owens, Judge Designate

            Brian M. Ely (Jessee, Read & Ely, P.C., on
            brief), for appellant.

            John H. McLees, Senior Assistant Attorney
            General (Jerry W. Kilgore, Attorney General,
            on brief), for appellee.


     Daniel Matthew Lowe (Lowe) appeals a ruling of the Circuit

Court of Smyth County denying his motion to vacate a previous

order of the Circuit Court of Tazewell County in which he was

adjudicated an habitual offender.     For the reasons that follow,

we affirm the ruling of the trial court.

                            I.   BACKGROUND

     On March 18, 1991, Judge Donald Mullins of the Circuit

Court of Tazewell County found Lowe in violation of the terms of

his probation and revoked four years of his previously suspended

sentence.    On April 25, 1991, while incarcerated in the Tazewell


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
County jail awaiting transport to a state correctional facility,

Lowe was personally served with an order to show cause why he

should not be adjudicated an habitual offender.   The show cause

order had been issued the previous day by Judge Mullins.   On

April 26, 1991, Lowe was transferred to Deep Meadow Correctional

Center to serve the remainder of his four-year sentence.

       Lowe's habitual offender hearing was held in the Circuit

Court of Tazewell County on May 16, 1991, the day indicated on

his notice.   Lowe was not present in person or represented by

counsel, and no guardian ad litem was appointed to represent

him.   Judge Mullins presided and adjudicated Lowe an habitual

offender by an order dated June 6, 1991.   The clerk of court

mailed a copy of the order to Lowe at the Powhatan Correctional

Center.   Lowe was actually incarcerated elsewhere at that time.

       On July 14, 2001, Lowe was arrested in Smyth County for

driving under the influence and driving after being adjudicated

an habitual offender.   Lowe moved the Circuit Court of Smyth

County to vacate the 1991 habitual offender adjudication on the

grounds that it was procured by extrinsic fraud on the court.

He alleged his absence from the habitual offender proceeding

constituted extrinsic fraud on the court because the

Commonwealth knew of his incarceration and a guardian ad litem

was not appointed to protect his interests.   Lowe entered a

conditional plea of guilty to the charge of driving after being

adjudicated an habitual offender, second offense, pursuant to a

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plea agreement that preserved his right to appeal the trial

court's denial of his motion to vacate the 1991 adjudication

order.   He now appeals to this Court. 1

                           II.   ANALYSIS

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

(1994) (en banc), this Court held that infancy under Code

§ 8.01-2(6)(b) is the only statutory disability that renders a

judgment void for failure to appoint a guardian ad litem under

Code § 8.01-9(A).   We explicitly rejected the contention "that a

judgment entered against a person under any of the other

enumerated statutory disabilities is void ab initio if rendered

without the appointment of a guardian ad litem." 2   Id. at 760,

441 S.E.2d at 219; see also England v. Commonwealth, 18 Va. App.

121, 442 S.E.2d 402 (1994) (holding that failure to appoint a

guardian ad litem in an habitual offender adjudication makes the

judgment voidable, not void).    We also stated in Pigg that a

judgment against an alcoholic is voidable, not void, "just as a

judgment rendered against a convict is merely voidable."    Pigg,

17 Va. App. at 762, 441 S.E.2d at 220.

                The distinction between an action of
           the court that is void ab initio rather than
           merely voidable is that the former involves

     1
       As the parties are fully conversant with the record in
this case and because this memorandum opinion carries no
precedential value, only those facts necessary to a disposition
of this appeal are recited.
     2
       Lowe's disability, incarceration for a felony, arises
under Code § 8.01-2(6)(a).

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          the underlying authority of a court to act
          on a matter whereas the latter involves
          actions taken by a court which are in error.
          An order is void ab initio if entered by a
          court in the absence of jurisdiction of the
          subject matter or over the parties, if the
          character of the order is such that the
          court had no power to render it, or if the
          mode of procedure used by the court was one
          that the court could "not lawfully adopt."
          The lack of jurisdiction to enter an order
          under any of these circumstances renders the
          order a complete nullity and it may be
          "impeached directly or collaterally by all
          persons, anywhere, at any time, or in any
          manner." . . . In contrast, an order is
          merely voidable if it contains reversible
          error made by the trial court.

Singh v. Mooney, 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001)

(internal citations omitted).

     As failure to appoint a guardian ad litem in the case of a

convict, like Lowe, renders an adjudication merely voidable, it

"may be set aside only (1) by motion to the trial court filed

within twenty-one days of its entry, as outlined in Rule 1:1,

(2) on direct appeal, or (3) by bill of review."   Pigg, 17

Va. App. at 760 n.5, 441 S.E.2d at 219 n.5; see also Blunt v.

Lentz, 241 Va. 547, 404 S.E.2d 62 (1991); Rook v. Rook, 233 Va.

92, 353 S.E.2d 756 (1987).   Having pursued none of the foregoing

options and seeking to avoid the outcome Pigg and England

mandate, Lowe alleges on appeal that the habitual offender

adjudication in the Circuit Court of Tazewell County was

procured by extrinsic fraud.




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     "Fraud consists of a false representation of a material

fact, made intentionally and knowingly, with the intent to

mislead, upon which the defrauded person relies to his

detriment."   Peet v. Peet, 16 Va. App. 323, 326, 429 S.E.2d 487,

490 (1993).   Fraud may be extrinsic or intrinsic.

     "Extrinsic fraud" exists when conduct prevents "a fair

submission of the controversy to the court."    Id. (citing Jones

v. Willard, 224 Va. 602, 607, 299 S.E.2d 504, 508 (1983)).     A

judgment procured by extrinsic fraud is void and subject to

either direct or collateral attack.    Id.; see also Jones, 224

Va. at 607-08, 299 S.E.2d at 508; Holmes v. Holmes, 8 Va. App.

457, 458-59, 382 S.E.2d 27, 28 (1989).

     Conversely,

          "[i]ntrinsic fraud" includes perjury, use of
          forged documents, or other means of
          obscuring facts presented before the court
          and whose truth or falsity as to the issues
          being litigated are passed upon by the trier
          of fact. . . . When a party discovers that
          a judgment has been obtained by intrinsic
          fraud, the party must act by direct attack
          or appeal to rectify the alleged wrong and
          cannot wait to assail the judgment
          collaterally whenever it is enforced.

Peet, 16 Va. App. at 326-27, 429 S.E.2d at 490; see also Jones,

224 Va. at 607, 299 S.E.2d at 508.

     Lowe argues that extrinsic fraud was committed upon the

Circuit Court of Tazewell County due to his disability

(incarceration) at the time of his habitual offender

adjudication, his absence from the hearing, and the court's

                               - 5 -
failure to appoint a guardian ad litem.   Due to this extrinsic

fraud, Lowe contends his habitual offender adjudication in the

Circuit Court of Tazewell County was void ab initio and subject

to collateral attack in his subsequent Smyth County proceeding.

We disagree.

     The record supports the conclusion Lowe's status as an

incarcerated felon was a material fact clearly known by the

court.   The same circuit court judge who revoked Lowe's

suspended sentence presided over the habitual offender

proceeding two months later.   The court mailed a copy of Lowe's

habitual offender adjudication to the Powhatan Correctional

Center which further evidences the court was cognizant of Lowe's

incarceration.

     Lowe has offered no evidence that the Commonwealth's

Attorney made any effort, intentional or otherwise, to conceal

the fact of his incarceration from the court.   Furthermore, if

the Commonwealth's Attorney had made such a representation,

intentionally or unintentionally, there could have been no

detrimental reliance because the court knew Lowe's true status.

Where no misrepresentation has been made, and no detrimental

reliance has occurred, there can be no fraud.   It is apparent

from the record there was no fraud on the Circuit Court of

Tazewell County. 3


     3
       Assuming arguendo, that a fraud had been perpetrated on
the Tazewell County Circuit Court, there is no showing that the

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     Even if we were to assume that Lowe's absence from the

habitual offender proceeding constituted a fraud on the court,

Lowe's argument ultimately fails.     Lowe acknowledges he received

notice of the habitual offender proceeding.      Therefore, he was

on notice of the hearing date and could have taken steps at that

time to request a continuance, a transportation order, or the

appointment of a guardian ad litem.       His absence, if it

constituted fraud, would be intrinsic, not extrinsic, and

"[w]hen a party discovers that a judgment has been obtained by

intrinsic fraud, the party must act by direct attack or appeal

to rectify the alleged wrong and cannot wait to assail the

judgment collaterally whenever it is enforced."       Peet, 16

Va. App. at 326, 429 S.E.2d at 490 (citing Jones, 224 Va. at

607, 299 S.E.2d at 508).    Lowe failed to attack his habitual

offender adjudication directly within the time limits set forth

under the law.   He cannot now challenge the outcome of that

proceeding collaterally.

                           III.   CONCLUSION

     For the reasons previously stated, we affirm the decision

of the Smyth County Circuit Court denying Lowe's motion to

vacate.

                                                               Affirmed.


court detrimentally relied on Lowe's absence or incarceration
status in rendering its adjudication order. Lowe neither
proffered nor introduced any evidence that the adjudication
order was incorrect.

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