Present: All the Justices
ROBERT NELSON, JR.
OPINION BY
v. Record No. 002301 CHIEF JUSTICE HARRY L. CARRICO
September 14, 2001
WARDEN OF THE KEEN MOUNTAIN
CORRECTIONAL CENTER
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
This case involves a "Baker claim," i.e., one arising
from this Court's decision in Commonwealth v. Baker, 258
Va. 1, 516 S.E.2d 219 (1999) (per curiam), aff'g Baker v.
Commonwealth, 28 Va. App. 306, 504 S.E.2d 394
(1998) (failure to notify juvenile's parents of proceedings
in juvenile court renders void subsequent criminal
convictions in circuit court). 1 The present claim is
asserted in an original petition for a writ of habeas
corpus filed in this Court by Robert Nelson, Jr. (Nelson),
against the Warden of the Keen Mountain Correctional Center
(the Warden).
According to the allegations of the petition, Nelson
was arrested in January 1985 at the age of seventeen for
two counts of armed robbery, two counts of abduction, one
count of receiving stolen property, and one count of sexual
assault. He was "arraigned" in the Juvenile and Domestic
Relations District Court of Fairfax County and then brought
before that court in March 1985 for a transfer hearing.
The juvenile court transferred him to the Circuit Court of
Fairfax County for trial as an adult. He pled guilty to
the offenses in circuit court and was sentenced to serve
forty-eight years in the penitentiary.
Nelson alleges in his habeas petition that his father
was not notified of the initiation of the proceedings in
juvenile court or of the transfer hearing. 2 Nelson alleges
that the juvenile court's failure to notify his father of
the proceedings rendered his convictions in the circuit
court unlawful and void. 3
1
For convenience, we will refer to the Court of
Appeals’ decision as Baker I and our decision as Baker II
or, collectively, as Baker.
2
Nelson makes no complaint about notice to his mother.
3
At the time of the juvenile proceedings in this case,
Code § 16.1-263(A) provided that “[a]fter a petition has
been filed, the court shall direct the issuance of
summonses, one directed to the child, . . . and another to
the parents . . . .” At its 1999 session, the General
Assembly substituted “at least one parent” for “the
parents” in § 16.1-263(A). 1999 Va. Acts ch. 952.
Code § 16.1-263(E) provides that "[n]o such summons or
notification shall be required if the judge shall certify
on the record that . . . the identity of [the father] is
not reasonably ascertainable." The judge made no such
certification in this case.
Code § 16.1-264(A) provides that if a person other than the
juvenile defendant cannot be found or his post office
2
Nelson not only invokes our decision in Baker II but
also our decision in David Moore v. Commonwealth, 259 Va.
431, 527 S.E.2d 406 (2000). In Baker II, we affirmed the
judgment of the Court of Appeals "[f]or the reasons set
forth in the opinion of" that court. 258 Va. at 2, 516
S.E.2d at 220. In its judgment, the Court of Appeals
reversed the criminal convictions of a seventeen-year-old
defendant, stating that "[b]ecause the notice of the
initiation of juvenile proceedings was not properly served
on the required parties, the transfer of jurisdiction [to
the circuit court] was ineffectual and the subsequent
convictions are void." 28 Va. App. at 315, 504 S.E.2d at
399.
In David Moore, we applied Baker II and held that,
because of the failure to notify the defendant’s father of
the initiation of juvenile court proceedings, "the juvenile
court . . . never acquired the authority to exercise its
jurisdiction to conduct the transfer hearing that resulted
in the transfer of Moore’s case to the circuit court.
Accordingly, the circuit court never acquired the authority
to exercise its jurisdiction to try Moore for the criminal
address cannot be located, the court may order service of
the summons upon him by publication.
3
offenses charged in the indictments, and Moore's
convictions in the circuit court are void." David Moore,
259 Va. at 440, 527 S.E.2d at 411.
Nelson argues that his case “falls squarely within the
rule enunciated by this Court” in Baker II and David Moore,
that his convictions, therefore, are void, and that habeas
corpus is a proper method of redress. Nelson argues
further that, because his convictions are void, they are
subject to attack "at any time, in any way, by anybody,
whether the attack be direct or collateral," and,
accordingly, his petition for a writ of habeas corpus is
not barred by the statute of limitations contained in Code
§ 8.01-654(A)(2). 4
For his part, the Warden contends that Nelson's
petition for a writ of habeas corpus is barred by the
4
Code § 8.01-654(A)(2) provides that a habeas corpus
petition attacking a criminal conviction or sentence,
except for cases in which a death sentence has been
imposed, “shall be filed within two years from the date of
final judgment in the trial court or within one year from
either final disposition of the direct appeal in state
court or the time for filing such appeal has expired,
whichever is later.” This statute became effective July 1,
1998. We allowed petitioners whose time for filing would
have expired prior to the effective date of the statute an
extra year, or until June 30, 1999, for the filing of
petitions for habeas corpus. Final judgment on Nelson's
convictions was entered in June 1985. He did not file his
petition until September 21, 2000, beyond the statutory
period and the extra year. Of course, he takes the
position his case is not subject to the statute.
4
statute of limitations contained in Code § 8.01-654(A)(2).
However, the Warden makes the overriding argument that this
Court should “take the opportunity to clarify the area of
the law concerned in this [case], hold that lack of notice
to a parent in juvenile court proceedings renders a
judgment voidable and not void and overrule the prior
decisions in David Moore and Baker to the extent they hold
otherwise.” We will consider this argument first.
The Warden’s argument implicates, of course, the
principles of stare decisis. In Selected Risks Ins. Co. v.
Dean, 233 Va. 260, 355 S.E.2d 579 (1987), we stated as
follows:
In Virginia, the doctrine of stare decisis is
more than a mere cliche. That doctrine plays a
significant role in the orderly administration of
justice by assuring consistent, predictable, and
balanced application of legal principles. And when a
court of last resort has established a precedent,
after full deliberation upon the issue by the court,
the precedent will not be treated lightly or ignored,
in the absence of flagrant error or mistake.
Id. at 265, 355 S.E.2d at 581. “Our strong adherence to
the doctrine of stare decisis does not, however, compel us
to perpetuate what we believe to be an incorrect
application of the law.” Nunnally v. Artis, 254 Va. 247,
253, 492 S.E.2d 126, 129 (1997).
In David Moore, this Court undertook to explain its
decision in Baker II. David Moore, 259 Va. at 434, 527
5
S.E.2d at 407 ("[t]he primary focus of this appeal is a
determination of the scope of our recent decision in [Baker
II])." While neither the Court of Appeals' opinion in
Baker I nor ours in Baker II mentioned the phrase "subject
matter jurisdiction," we made a point in David Moore of
"emphasizing the necessary distinction to be drawn . . .
between the power of a court to adjudicate a specified
class of cases, commonly known as 'subject matter
jurisdiction,' and the authority of a court to exercise
that power in a particular case." Id. at 437, 527 S.E.2d
at 409.
We said that "[s]ubject matter jurisdiction is granted
by constitution or statute," that "[i]t cannot be waived,"
that "any judgment rendered without it is void ab initio,"
and that "lack of subject matter jurisdiction 'may be
raised at any time, in any manner, before any court, or by
the court itself.' " Id. (quoting Humphreys v.
Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 893 (1947)).
We made plain, however, that the lack of subject matter
jurisdiction was not at issue in David Moore. Rather, we
said that the issue was "the unique statutory framework
whereby a juvenile court and in turn a circuit court
acquire the authority to exercise their subject matter
6
jurisdiction." 259 Va. at 438, 527 S.E.2d at 409.
(Emphasis added.)
After noting the Court's emphasis on the distinction
between subject matter jurisdiction and the authority to
exercise that jurisdiction, the Court's next step should
have been to demonstrate the difference resulting from the
distinction. Yet, we made a distinction without a
difference for, with our very next step, we elevated the
failure of a court to comply with the requirements for
exercising its authority to the same level of gravity as a
lack of subject matter jurisdiction.
We stated that " '[a] court's authority to exercise
its subject matter jurisdiction over a case may be
restricted by a failure to comply with statutory
requirements that are mandatory in nature and, thus, are
prerequisite to a court's lawful exercise of that
jurisdiction.' " Id. at 437, 527 S.E.2d at 409 (quoting
Dennis Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d
415, 417 (2000)). 5 In other words, we made the statutory
5
Dennis Moore and David Moore are two different
defendants. Dennis Moore involved Code § 16.1-269.6(E),
which provides that "[a]ny objection to the jurisdiction of
the circuit court pursuant to [Article 7 of Chapter 11 of
Title 16.1] shall be waived if not made before
arraignment." This Court said in David Moore that the
section was inapplicable because it relates to a defect in
a transfer hearing while David Moore claimed a defect in
7
requirements both mandatory and jurisdictional. We also
made clear that the requirements were not subject to waiver
by the juvenile's failure to object to a defect in the
proceedings. David Moore, 259 Va. at 439, 527 S.E.2d at
410.
We are of opinion David Moore is flawed by our failure
to recognize that, in the legal and factual framework in
which the decision was made, a different outcome should
have resulted from the distinction we drew between subject
matter jurisdiction and the authority to exercise that
jurisdiction. Analysis of the framework begins with our
decision in Peyton v. French, 207 Va. 73, 147 S.E.2d 739
(1966), cited in both Baker I and David Moore.
In Peyton v. French, the juvenile court "certified" a
sixteen-year-old juvenile to the circuit court for trial on
larceny and breaking and entering charges. Neither of the
juvenile's parents was present, they had not received any
notice to appear, and a guardian ad litem was not appointed
the initiation of the juvenile proceedings. David Moore,
259 Va. at 440, 527 S.E.2d at 411. Another statute, Code
§ 16.1-269.1(E), addresses defects in the initiation of
juvenile proceedings. It provides that "[a]n indictment in
the circuit court cures any error or defect in any
proceeding held in the juvenile court except with respect
to the juvenile's age." However, both § 16.1-269.1(E) and
§ 16.1–269.6(E) apply only to offenses committed after July
1, 1996. As noted supra in the text, Nelson's offenses
were committed in 1985.
8
to represent the juvenile. He was convicted in circuit
court and sentenced to the penitentiary. We said "the
failure of the juvenile court to comply with the applicable
statutes rendered the circuit court proceedings void." Id.
at 80, 147 S.E.2d at 743. Similar results were reached
under like circumstances in Gregory v. Peyton, 208 Va. 157,
156 S.E.2d 624 (1967), Gogley v. Peyton, 208 Va. 679, 160
S.E.2d 746 (1968), Pruitt v. Peyton, 209 Va. 532, 165
S.E.2d 288 (1969), and Jones v. Commonwealth, 213 Va. 425,
192 S.E.2d 775 (1972), all referring back to Peyton v.
French.
As Justice Kinser's dissent in David Moore aptly
points out, while we did not specify in Peyton v. French
and its progeny that we were considering subject matter
jurisdictional defects, the question of the juvenile
court's subject matter jurisdiction was implicated because
we allowed the defendants in those cases to mount
collateral attacks upon their convictions. David Moore,
259 Va. at 444, 527 S.E.2d at 413. And as the dissent
further notes, there were two statutory provisions in
effect at the time the Peyton v. French line of cases was
decided that rendered the defects jurisdictional rather
than procedural. Id. at 445, 527 S.E.2d at 413-14.
9
Former Code § 16.1-172 provided that "[i]n no case
shall the hearing proceed until the parent or parents of
the child . . . have been notified." (Emphasis added.)
And former Code § 16.1-173 provided that when no person
required to be notified by former Code § 16.1-172 was
present for the hearing, the "court shall, before
proceeding with the hearing, appoint a . . . guardian ad
litem to represent the interests of the child." (Emphasis
added.)
However, beginning in 1968, the General Assembly made
a series of dramatic changes in the jurisdictional aspect
of the notice requirements of the juvenile statutes. That
year, the General Assembly deleted from former Code § 16.1-
173 the requirement that the "court shall, before
proceeding with the hearing," appoint a guardian ad litem
when no person required to be notified was present at the
hearing. And, in 1977, the General Assembly removed from
former Code § 16.1-172 the provision that "[i]n no case
shall the hearing proceed" until the juvenile's parent or
parents have been notified. Significantly, the General
Assembly has not replaced the language deleted from former
Code §§ 16.1-172 and –173 with anything remotely suggesting
an intention to re-institute a jurisdictional requirement
in the notice provisions of the juvenile statutes.
10
In 1973, the General Assembly enacted Code § 16.1-
176.2 (now Code § 16.1-270). This new section provided
that at any time prior to a transfer hearing, “a child
. . ., with the written consent of his counsel, may elect
in writing to waive the jurisdiction of the juvenile court
and have his case transferred to the appropriate court of
record." (Emphasis added.)
Furthermore, subsequent decisions of this Court
substantially impacted the jurisdictional aspect of the
notice requirements of the juvenile statutes. In 1976,
prompted in large part by the enactment of Code § 16.1-
176.2 permitting a juvenile to waive the jurisdiction of
the juvenile court, this Court decided that a statutory
provision stating that the juvenile court shall give
parents notice in writing of a transfer hearing was
procedural and not jurisdictional in nature. Turner v.
Commonwealth, 216 Va. 666, 222 S.E.2d 517 (1976). We said,
"especially is the jurisdictional argument negated by the
. . . provision that the transfer hearing itself may be
waived." Id. at 669, 222 S.E.2d at 520. As a result, we
held that "any departure from [the] requirement [of written
notice] may be cured or waived by the appearance of proper
11
and necessary parties and a failure to object to inadequacy
of notice." Id. at 668, 222 S.E.2d at 519. 6
In Jamborsky v. Baskins, 247 Va. 506, 442 S.E.2d 636
(1994), the circuit court failed to comply with the then
current juvenile transfer statute, which provided that the
circuit court shall, within twenty-one days after receipt
of the case from juvenile court, conduct an examination to
determine if there had been compliance with the statute.
Code § 16.1-269(E) (repealed by 1994 Va. Acts ch. 859 and
949) (see present Code § 16.1-269.6(B)). The Court of
Appeals issued a writ of prohibition against further
proceedings in the circuit court, holding that the twenty-
one day requirement was mandatory and jurisdictional. We
reversed, holding that the twenty-one day provision was
"directory and procedural, rather than mandatory and
jurisdictional." Id. at 511, 442 S.E.2d at 639.
Under the doctrine of stare decisis, we are not
obliged to uphold a decision that is itself at odds with
precedent previously established by this Court "after full
6
The view expressed in David Moore that the notice
requirements of the juvenile statutes are jurisdictional in
nature and cannot be waived is contradicted by Morrison v.
Bestler, 239 Va. 166, 387 S.E.2d at 753 (1990). After
noting that "there is a significant difference between
subject matter jurisdiction and the other 'jurisdictional'
elements," including notice jurisdiction, we stated that
12
deliberation upon the issue," Selected Risks, 233 Va. at
265, 355 S.E.2d at 581, that fails to give proper effect to
“the interposition of legislative power," Postal Telegraph-
Cable Co. v. Farmville & Powhatan R.R. Co., 96 Va. 661,
662, 32 S.E. 468, 469 (1899), and that “has produced
‘confusion,’ ” United States v. Dixon, 509 U.S. 688, 711
(1993). David Moore suffers from all of these ills.
David Moore is at odds with Turner, Jamborsky, and
Morrison, precedents previously established by this Court
after full deliberation upon the issues and never
overruled. It fails to give proper effect to the
interposition of legislative power, exemplified by the
substantial statutory changes evincing legislative intent
to make the notice provisions of the juvenile statutes
procedural and not jurisdictional. And it certainly has
produced confusion among the bench and bar of this
Commonwealth.
We indicated supra that we thought a different outcome
should have resulted in David Moore from the distinction we
drew between subject matter jurisdiction and the authority
to exercise that jurisdiction. In our opinion, the
different outcome should have consisted of a finding that
"[s]ubject matter jurisdiction alone cannot be waived."
Id. at 169, 387 S.E.2d 755.
13
the statutory requirement of notice to parents was not
jurisdictional but procedural in nature, that a failure to
notify parents could be waived by a failure to object, and,
correspondingly, that a failure to comply with the
requirement rendered subsequent convictions voidable and
not void. To the extent David Moore conflicts with these
views, it is overruled.
Baker, however, should not suffer the same fate. The
voiding of Baker's convictions was predictable. In this
context, a matter is void either because it has been null
from the beginning (void ab initio) or because it is
declared null although seemingly valid until that point in
time (voidable). See Black's Law Dictionary 1568 (7th ed.
1999). Neither the Court of Appeals nor this Court
classified Baker's convictions as void ab initio, and they
were not void ab initio because David Moore makes clear
that both the juvenile court and the circuit court in Baker
possessed subject matter jurisdiction. David Moore, 259
Va. at 437-38, 527 S.E.2d at 409. But when the Court of
Appeals determined that Baker's father was not given the
notice required by the version of Code § 16.1-263(A) then
in effect and, significantly, it was clear Baker had
preserved the error both by filing in circuit court a
motion to dismiss before he was indicted and by timely
14
raising the issue on appeal, the Court of Appeals was bound
to declare void what theretofore had been merely voidable.
In contrast, Nelson did not preserve the error in the
juvenile court's failure to give his father notice and did
not raise the issue until he filed his petition for a writ
of habeas corpus in this Court. Because Nelson's
convictions were merely voidable, his failure to raise the
issue in a timely manner constitutes a waiver of the error
and results in the dismissal of his petition. In light of
this disposition, we do not reach any of the other issues
in the case.
Petition dismissed.
JUSTICE KOONTZ, with whom JUSTICE HASSELL and JUSTICE
KEENAN join, dissenting.
I respectfully dissent. Today, although expressly
acknowledging “ ‘[o]ur strong adherence to the doctrine of
stare decisis,’ ” a new majority of this Court overrules
our prior decision in David Moore v. Commonwealth, 259 Va.
431, 527 S.E.2d 406 (2000), after concluding that decision
is “flawed by our failure to recognize that, in the legal
and factual framework in which the decision was made, a
different outcome should have resulted from the distinction
we drew between subject matter jurisdiction and the
authority to exercise that jurisdiction.” The new majority
15
reasons that “the different outcome should have consisted
of a finding that the statutory requirement of notice to
parents was not jurisdictional but procedural in nature,
that a failure to notify parents could be waived by a
failure to object, and, correspondingly, that a failure to
comply with the requirement rendered subsequent convictions
voidable and not void.” (Emphasis added). Of course,
because David Moore is otherwise dispositive of the issue
whether the convictions of Robert Nelson, Jr. in June 1985
were merely voidable and not void, it is necessary for the
majority now to cast the decision in David Moore aside in
order to reach a different outcome in Nelson’s case and to
dismiss his petition.
In my view, David Moore was correctly decided and is
entirely consistent with established precedent of this
Court. Beyond question it was decided after full
deliberation upon the issue presented. However, I do not
dissent here merely to defend our decision in David Moore.
I do so also because the new majority in this case
necessarily labors to obtain a desired “outcome,” and in
that process brings into question whether this Court
consistently heeds its pronouncement that “the doctrine of
stare decisis is more than a mere cliché.” Selected Risks
Ins. Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579, 581
16
(1987). I cannot join in an opinion that fosters the
perception that this Court does not.
With regard to our decision in David Moore, and the
precedent upon which it relies, the failure of the juvenile
court to give parental notification of the initiation of
proceedings against a juvenile alleged to have committed a
criminal offense, as required by the then applicable
provisions of Code §§ 16.1-263 and 16.1-264, is
particularly significant. That notification is critical to
the proper application of the unique statutory scheme in
which such a juvenile is initially brought within the
purview of the juvenile court system and then “transferred”
to the appropriate circuit court to be tried as an adult.
Under this unique statutory scheme the juvenile court is
given “exclusive original jurisdiction” over all cases
involving a juvenile who is alleged to have committed a
criminal offense. Code § 16.1-241. Thus, the circuit
court has no jurisdiction over such cases in the absence of
the juvenile court’s compliance with a mandatory procedure
to invoke its initial exclusive jurisdiction and thereby
subsequently to transfer a juvenile to be tried as an adult
in the circuit court. It is that process, whether labeled
jurisdictional or mandatory, that is the focus of the
present case, just as it was in Peyton v. French, 207 Va.
17
73, 147 S.E.2d 739 (1966), subsequently in Commonwealth v.
Baker, 258 Va. 1, 516 S.E.2d 219 (1999)(per curiam), aff’g
Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394
(1998) (hereafter Baker II and Baker I, respectively), and
thereafter in David Moore.
In this context, it has long been understood and
accepted that a juvenile, even one alleged to have
committed a serious crime, is to be treated differently
from an adult when the juvenile’s conduct brings him within
the purview of the juvenile court system. One difference
is that a child is entitled to the guidance of his parents
or guardian at a juvenile court proceeding. Undoubtedly,
the most significant proceeding in a juvenile court is when
a juvenile is transferred to a circuit court to be tried as
an adult. See Kent v. United States, 383 U.S. 541, 553
(1966). Thus, in French, where, among other things, the
juvenile court failed to give the required parental notice
of the initiation of the proceedings in that court, we
noted that the juvenile court had exclusive original
jurisdiction over the offense alleged to have been
committed by the juvenile. We also observed that “the
clear purpose and intent of the Juvenile and Domestic
Relations Court Law cannot be achieved if it is not
mandatory that the proceedings set forth in [the several
18
statutes requiring the filing of a petition and parental
notification prior to certifying a juvenile’s case to the
circuit court] be complied with. Indeed, the very language
of the statutes makes it mandatory that the aforesaid . . .
statutes be followed before criminal jurisdiction in a
proper court of record comes into being.” 207 Va. at 79,
147 S.E.2d at 743 (emphasis added). Accordingly, we
expressly and purposefully held that “the failure of the
juvenile court to comply with the applicable statutes
rendered the circuit court proceeding void.” Id. at 80,
147 S.E.2d at 743 (emphasis added).
Relying, in part, upon our decision in French, the
Court of Appeals in Baker I held that “[b]ecause the notice
of the initiation of juvenile court proceedings was not
properly served [on the juvenile’s biological father as
required by the then applicable version of Code § 16.1-
263], the transfer of jurisdiction was ineffectual and the
subsequent convictions [of the juvenile in the circuit
court] are void.” 28 Va. App. at 315, 504 S.E.2d at 399
(emphasis added). In reaching this judgment, the Court of
Appeals drew upon its prior decision in Karim v.
Commonwealth, 22 Va. App. 767, 779, 473 S.E.2d 103, 108-09
(1996) (en banc), wherein it stated that “the provisions of
Code §§ 16.1-263 and 16.1-264, ‘relating to procedures for
19
instituting proceedings against juveniles, are mandatory
and jurisdictional’ and the failure to ‘strictly follow’
these notice procedures denies a juvenile defendant ‘a
substantive right and the constitutional guarantee of due
process.’ ” Baker I, 28 Va. App. at 310, 504 S.E.2d at 396
(emphasis added). In Baker II, we affirmed this judgment
of the Court of Appeals “[f]or the reasons set forth in the
opinion” in Baker I. Indeed, these decisions reflect our
consistent observation that “jurisdiction of the person and
the proceeding is the very basis of a full and fair hearing
at a criminal trial.” Gogley v. Peyton, 208 Va. 679, 682,
160 S.E.2d 746, 748 (1968).
Contrary to the position now taken by the majority in
the present case, there is no suggestion in French, Baker
I, or Baker II that our use of the term “void” was intended
to mean “voidable.” Remarkably, the majority finds its
only support in Black’s Law Dictionary 1568 (7th ed. 1999)
to reason that by not characterizing a void judgment as
“void ab initio” such a judgment is merely voidable
“because it is declared null although seemingly valid until
that point in time.” I am unaware that the appellate
courts of this Commonwealth are so imprecise when
concluding that a particular judgment is either “void” or
“voidable.” See, e.g., Roach v. Director, Dep’t of
20
Corrections, 258 Va. 537, 547, 522 S.E.2d 869, 873 (1999);
Pigg v. Commonwealth, 17 Va. App. 756, 760, 441 S.E.2d 216,
219 (1994)(en banc).
Moreover, the view now taken by the majority with
regard to Baker I and Baker II, that because the juvenile
there preserved the error of the failure of the juvenile
court to give the required parental notice “the Court of
Appeals was bound to declare void what theretofore had been
merely voidable,” is at best circular reasoning. In
reality, the majority equates the preservation of the error
with an analysis of the character of the error. However,
if the error causes a judgment to be void, that is, a
nullity, the failure to preserve that error in the trial
court or upon appeal does not and cannot cause the judgment
to be merely voidable. Rather, the void judgment may be
challenged “at any time, in any manner, before any court,
or by the court itself.” Humphreys v. Commonwealth, 186
Va. 765, 772, 43 S.E.2d 890, 893 (1947). And so it was in
Baker II that after careful consideration we specifically
declined the Attorney General’s request that we apply our
judgment in that case prospectively only and held that
retrospective application was mandated. 258 Va. at 2, 516
S.E.2d at 219.
21
With this background, we next decided David Moore.
The issue presented was whether the failure to give the
statutory notice of the initiation of juvenile court
proceedings to a juvenile’s parent was a defect in the
proceedings such that it was not subject to waiver by the
juvenile either in the juvenile court or the circuit court.
Because David Moore had raised no such objection either in
the juvenile court or the circuit court where he was
convicted of various criminal offenses as an adult, we took
the opportunity to determine the scope of our decision in
Baker II where, as previously noted, the juvenile preserved
the objection. The majority in the present case, as if
newly discovered, finds a flaw in our analysis because in
David Moore “we made the statutory requirements [of
parental notification] both mandatory and jurisdictional.”
But, we did so expressly because in Baker II we adopted the
reasoning of the Court of Appeals in Baker I that such
requirements are “mandatory and jurisdictional.” Despite
its assertion to the contrary, the majority does have “the
same quarrel with Baker [II] as with David Moore;” the
majority simply wants to now declare “voidable” what has
consistently been declared “void.” ∗
∗
The majority also concludes that “David Moore is at
odds” with our prior decisions in Turner v. Commonwealth,
22
In David Moore we explained why Code § 16.1-269.1(E)
(indictment in circuit court cures any error or defect in
any proceeding held in juvenile court except with respect
to juvenile’s age) was not applicable to Moore’s case.
This provision applies only to offenses committed on or
after July 1, 1996. Nelson’s offenses were committed in
1985 and, therefore, this provision does not apply to his
case. In David Moore, we also addressed Code § 16.1-
269.6(E) (any objection to the jurisdiction of the circuit
court waived if not made before arraignment). This statute
216 Va. 666, 222 S.E.2d 517 (1976), Jamborsky v. Baskins,
247 Va. 506, 442 S.E.2d 626 (1994), and Morrison v.
Bestler, 239 Va. 166, 387 S.E.2d 753 (1990). None of these
cases, however, involved a “Baker claim.” Turner involved
a failure to give written notice of a transfer hearing.
Jamborsky involved a failure of the circuit court to
conduct an examination within twenty-one days after receipt
of the case to determine whether a transfer was proper. We
held that these statutory requirements were procedural and
not mandatory and jurisdictional. Morrison was a medical
malpractice case and, obviously, does not purport to
address the jurisdictional aspect of the statutory mandate
of parental notification of the initiation of juvenile
court proceedings specifically addressed in French,
Baker I, Baker II, and David Moore.
Moreover, the enactment of Code § 16.1-176.2 (now Code
§ 16.1-270) permitting a juvenile to waive a transfer
hearing does not lessen the jurisdictional aspect of the
requirement of parental notification of the initiation of
juvenile court proceedings against a juvenile alleged to
have committed a criminal offense. This statute
necessarily assumes that there is an otherwise proper
proceeding to be waived in the first place; it is not a
curative statute such as Code §§ 16.1-269.1(E) and 16.1-
269.6(E).
23
also does not apply to offenses committed prior to July 1,
1996 and, therefore, does not apply to Nelson’s case.
The significance of these statutory enactments then
becomes readily apparent in the context of what the
majority appropriately labels a “Baker claim.” In short,
with regard to offenses committed by a juvenile prior to
July 1, 1996, the failure of the juvenile court to give the
statutorily mandated parental notification of the
initiation of proceedings in that court is a defect in the
proceedings such that the circuit court has no jurisdiction
over the juvenile’s case and the circuit court’s judgment
of conviction is void and not merely voidable. As such,
the judgment is subject to successful attack by a
subsequent petition for a writ of habeas corpus. Nelson’s
claims fall well within this analysis and the applicable
timeframe.
Finally, the majority’s acknowledgment of our
adherence to the doctrine of stare decisis in the present
case rings hollow in light of our prior considerations of
the issue addressed. After this Court issued its per
curiam opinion in Baker II, the Commonwealth filed a
petition to reconsider. The Commonwealth stated in its
petition to reconsider:
24
Within a matter of days, if not hours, of this Court’s
decision [in Baker], Virginia prisoners seized upon the
Court’s citation of Gogley [v. Peyton, 208 Va. 679, 160
S.E.2d 746 (1968)] in support of the proposition that a so-
called “Baker” error raises a matter of “subject matter”
jurisdiction that may be raised at any time, regardless of
whether the alleged lack of notice to a biological parent
had been raised at trial and on direct appeal . . . .
It is a matter of utmost importance to the
Commonwealth, therefore, that the Court grant rehearing in
order to thoroughly and carefully consider, and expressly
decide, whether a so-called “Baker” error raises an issue
of “subject matter” jurisdiction that may be raised at any
time and never may be waived, or whether it merely raises a
matter of “notice” jurisdiction, unlike “subject matter”
jurisdiction, [which] is an issue that must be raised at
trial and preserved for direct appeal.
The Court declined the Commonwealth’s invitation because
the Court was of the view that a circuit court cannot
acquire subject matter jurisdiction over a juvenile’s case
if the juvenile court failed to give the statutorily
required parental notification of the initiation of
proceedings in the juvenile court.
I also observe that the majority fails to mention or
discuss this Court’s decision in Jackson v. Warden, 259 Va.
566, 529 S.E.2d 587 (2000), which should be controlling in
this case. Chauncey Jacob Jackson, who had been convicted
and sentenced to death, Jackson v. Commonwealth, 255 Va.
675, 499 S.E.2d 538 (1998), cert. denied, 525 U.S. 1067
(1999), filed a petition for writ of habeas corpus styled
Chauncey Jacob Jackson, Petitioner v. John B. Taylor,
25
Warden Sussex I State Prison, Record No. 991477. Jackson
asserted, among other things, in his petition that his
convictions were void because the juvenile court failed to
notify his father of the juvenile court proceedings, citing
our decision in Baker II and the Court of Appeals’ decision
in Baker I.
In response, the Commonwealth stated in its motion to
dismiss:
In an attempt to circumvent his default/waiver of his
[Baker claim], Jackson asserts that a “Baker” error is a
subject matter jurisdiction that absolutely voids his
conviction and that can be raised at any time. The error
identified in Baker v. Commonwealth, 28 Va. App. 306, 504
S.E.2d 394 (1998), affirmed, 258 Va. 1, 516 S.E.2d 219
(1999) and alleged by Jackson, however, is not the type of
“subject matter” jurisdiction defect that may be raised at
any time. It is, rather, a mere defect in “notice”
jurisdiction which, as with any jurisdictional defect other
than one of subject matter jurisdiction, “will be
considered waived unless raised in pleadings filed with the
trial court and properly preserved on appeal.”
The Commonwealth essentially relied upon the same
argument and cases in its motion to dismiss in Jackson v.
Warden that it relied upon in Baker II and in the present
proceeding. A panel of this Court denied Jackson’s
petition for habeas corpus. Jackson filed a petition for
rehearing that was considered by the full Court. Jackson
reasserted his jurisdictional arguments in his petition for
a rehearing.
26
The full Court, upon consideration of the petition for
rehearing, unanimously held that the circuit court did not
have jurisdiction to try Jackson for the capital murder and
related offenses. In its published order, this Court
stated:
On consideration of the petition of petitioner to
set aside the judgment rendered herein on the
18th day of November, 1999 and grant a rehearing
thereof, it is ordered that the said judgment
dismissing the petition be reversed and set aside
and a rehearing is granted.
On consideration of the pleadings filed in this case,
the Court is of opinion that the Circuit Court of the City
of Norfolk never acquired jurisdiction to try the
petitioner for capital murder and five companion felonies.
David Moore v. Commonwealth, 259 Va. 431, 527 S.E.2d 406
(2000). Accordingly, a writ of habeas corpus is awarded
the petitioner and petitioner’s convictions for capital
murder, attempted robbery, conspiracy to commit robbery,
two counts of use of a firearm in the commission of a
felony and receipt of stolen property are vacated. This
matter is remanded to the Circuit Court of the City of
Norfolk for a new trial if the Commonwealth be so advised.
The Clerk of this Court shall certify copies of this
order to the petitioner, to the respondent, to the Clerk of
the Circuit Court of the City of Norfolk, and to the
Attorney General of Virginia which certification shall have
the same force and effect as if a writ of habeas corpus
were formally issued and served.
Jackson v. Warden, 259 Va. at 566-67, 529 S.E.2d at 587
(emphasis added).
It is abundantly clear from the record in Jackson v.
Warden that this Court unanimously and expressly rejected
the arguments that the Commonwealth again advances today
27
and which the majority, after a change of mind, has decided
to embrace. Procedurally, the Jackson v. Warden case is
virtually identical to the present case. Jackson, just as
Nelson, did not assert during the trial of the underlying
convictions that the Commonwealth failed to notify a parent
of proceedings in the juvenile court. Jackson, just as
Nelson, alleged in his habeas petition that his father was
not notified of the initiation of proceedings in the
juvenile court or of the transfer hearing. Jackson, just
as Nelson, alleged that the juvenile court’s failure to
notify his father of the proceedings rendered his
convictions in the circuit court void.
Thus, I fail to understand how the majority, which
participated and voted in Jackson v. Warden, can somehow
conclude that David Moore is at odds with precedent
previously established by this Court after full
deliberation upon the issue. The majority simply ignores
the record and our published decision in Jackson v. Warden
as if that case does not exist. This Court did not err in
Baker II, David Moore, and Jackson v. Warden. Rather, the
majority has abandoned the consistent and longstanding
juvenile court jurisprudence of this Court, dating back to
the French decision, to reach a different outcome, abruptly
discarding the principle of stare decisis.
28
Because I would hold that Nelson’s convictions were
void and not merely voidable, I would also hold that his
petition for a writ of habeas corpus is not barred by the
statute of limitations contained in Code § 8.01-654(A)(2).
Accordingly, I would grant the relief sought by Nelson in
his habeas corpus petition and remand this case to the
trial court for a new trial if the Commonwealth be so
advised.
29