Opinion
Record No. 1312-92-4
Decided: November 15, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Jack B. Stevens, Judge
Affirmed.
James R. Tanfield for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Coleman and Willis
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal from a conviction for driving after having been adjudicated an habitual offender, we hold that the evidence supported the trial court's determination that the appellant did not prove that she was incapacitated so as to have required the appointment of a guardian ad litem for her in the habitual offender proceeding.
An habitual offender adjudication rendered against an alcoholic for whom no guardian ad litem has been appointed is merely voidable. Graham v. Commonwealth, ___ Va. App. ___ ___, 443 S.E.2d 586, 587 (1994); see also Pigg v. Commonwealth, ___ Va. App. ___, ___, 441 S.E.2d 216, 221 (1994) (en banc). Evidence that the defendant was an alcoholic at the time of the habitual offender adjudication is not sufficient; the defendant must show that he or she was incapable of understanding the nature of the proceedings or of defending his or her interest. See Graham, ___ Va. App. at ___, 443 S.E.2d at 587.
We are bound by the trial court's findings of fact unless clearly erroneous or unsupported by the evidence. Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992). In this case, the court heard evidence regarding the defendant's alleged alcoholism and her understanding of the proceeding at the time of the habitual offender adjudication and found that at the time of the adjudication hearing, the defendant "was in control of her faculties, able to understand what was going on. She wasn't then drinking. She wasn't then dependent upon alcohol. She was not then a person under a disability and did not require a Guardian Ad Litem to be appointed." Evidence supported this finding, and we cannot say that it is clearly wrong.
The defendant argues that because she is a chronic alcoholic, and because she was either not present or did not recall being present, the trial court was required to appoint a guardian ad litem. However, an alcoholic defendant, even if he or she is not present at an habitual offender adjudication, is not entitled to the appointment of a guardian ad litem absent a showing of actual incapacity at the time of the adjudication. See Graham, ___ Va. App. at ___, 443 S.E.2d at 587.
For these reasons, we affirm the judgment of the trial court.
Affirmed.