Thomas v. Garraghty

Present:   All the Justices

DOUGLAS CHRISTOPHER THOMAS

v.   Record No. 991284  OPINION BY JUSTICE BARBARA MILANO KEENAN
                                        November 5, 1999
DAVID GARRAGHTY, WARDEN,
GREENSVILLE CORRECTIONAL CENTER


            UPON A PETITION FOR A WRIT OF HABEAS CORPUS


      Douglas Christopher Thomas was convicted in the Circuit

Court of Middlesex County (circuit court) of capital murder,

first degree murder, and two counts of using a firearm in the

commission of a felony.   The first degree murder conviction was

based on the killing of James Baxter Wiseman, II, Code § 18.2-

32, and the capital murder conviction arose from the killing of

Kathy J. Wiseman as a part of the same act or transaction of

killing James Baxter Wiseman, II, Code § 18.2-31(7).    The other

two convictions were based on Thomas's use of a firearm in the

commission of these murders.   Code § 18.2-53.1.   Thomas, who was

17 years old at the time of these offenses, was sentenced to

death on the capital murder conviction based on the aggravating

factor of "vileness."    He also received a sentence of 65 years'

imprisonment for first degree murder and a total of six years'

imprisonment for the two firearms convictions.     We affirmed the

trial court's judgment in Thomas v. Commonwealth, 244 Va. 1, 419

S.E.2d 606, cert. denied, 506 U.S. 958 (1992).
     Thomas filed the present petition for a writ of habeas

corpus invoking this Court's original jurisdiction.    He alleges

that his biological father was not provided notice of the

proceedings in the Middlesex County Juvenile and Domestic

Relations District Court (juvenile court) that resulted in his

transfer to the circuit court for trial as an adult, as required

by former Code § 16.1-263. 1   He asserts that under our recent

holding in Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219

(1999) (per curiam), the Commonwealth's failure to provide such

notice created a jurisdictional defect that rendered his

convictions void.

     In November 1990, the juvenile court issued criminal

petitions against Thomas in which his mother was identified as

Margaret M. Thomas and his aunt and uncle, Brenda J. and Herbert

Marshall, were identified under the heading, "guardian, legal

custodian or person in loco parentis."    Thomas does not dispute

that these three individuals were given notice of the transfer

proceedings in the juvenile court.    Thomas's father was

identified in the petitions as "Robert Christopher Thomas[,]

     1
      Thomas raised the same claim in a motion for writ of coram
vobis filed in the circuit court, which denied the motion by
order dated June 16, 1999. Thomas's appeal of the circuit court
order is pending in this Court and has been consolidated with
this habeas corpus proceeding. See Thomas v. Commonwealth of
Virginia, Record. No. 991291. We will decide the coram vobis
appeal separately by order and, for reasons not germane to this



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Whereabouts unknown."   No notice of the juvenile court

proceedings was provided to Robert Christopher Thomas, and the

record does not reflect that any effort was made to locate him.

     On the date set for the transfer hearing in the juvenile

court, Thomas and his counsel executed a written document

waiving his right to the hearing.    The document stated in part:

"IT IS THE CONCLUSION of the Defendant and his counsel that the

statutory requirements for transfer to Circuit Court are met and

that the waiver of both a probable cause hearing and transfer

hearing is in the best interest of the Defendant."    After

informing Thomas of the purpose of a transfer hearing and asking

him questions to determine whether his waiver was voluntary and

intelligent, the juvenile court accepted Thomas's waiver

pursuant to former Code § 16.1-270 and transferred Thomas to the

circuit court for further criminal proceedings.   Following the

transfer, Thomas was indicted, tried, and convicted in the

circuit court on the four felony charges.

     The following facts concerning Thomas's family

relationships are not in dispute.    Thomas's biological parents,

Margaret M. Thomas and Robert Christopher Thomas, separated in

1973, several months before Thomas was born.   They divorced in




appeal, we will affirm the circuit court's judgment in that
case.

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1974.    In 1982, Thomas was adopted by his maternal grandparents,

Herbert B. Marshall, Sr., and Virginia J. Marshall.

        Prior to the adoption, both of Thomas's biological parents

executed documents indicating their consent to the adoption.

The following handwritten language appeared on the consent form

signed by Thomas's biological mother:

        Also, I would like to know by signing this paper will
        Douglas C. Thomas at [my parents'] death come back to
        me is why I gave consent for them to have custody of
        my son is because [his grandfather] wanted to put him
        on his social security & his insurance papers.

        The consent form signed by Thomas's biological father

contained the following typewritten language:

        3) That respondent . . . would like for the records to
        reflect that due to serious illness or death to the
        [adoptive parents] that the child be returned to the
        custody and care of his natural Mother.

        4) That respondent . . . would also like for the
        records to reflect that due to the death or serious
        illness of the child's natural Mother . . . that the
        child be awarded to the custody of his natural Father.

        In 1985, after both adoptive parents died, Thomas lived

with his biological mother for a period of time.    In 1988, he

began living with his aunt and uncle, Brenda and Herbert

Marshall, in Middlesex County, where he was residing when he

committed these offenses.    During the years after his adoptive

parents died, Thomas did not have a legal guardian or custodian

appointed by any court.




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       In his petition for a writ of habeas corpus, Thomas relies

primarily on our holding in Baker.    There, for the reasons

stated in the opinion of the Court of Appeals, we affirmed the

Court's judgment voiding the circuit court convictions of a

juvenile because the required notice of transfer hearing was not

provided to the juvenile's father.    258 Va. at 2, 516 S.E.2d at

220.   The Court of Appeals held that "[a] plain reading of Code

§§ 16.1-263 and 16.1-264 manifests legislative intent that both

parents be notified and dispenses with this requirement only

when the trial judge has certified on the record that the

identity of a parent is not reasonably ascertainable."     Baker v.

Commonwealth, 28 Va. App. 306, 312, 504 S.E.2d 394, 397 (1998)

(emphasis added).   The Court of Appeals concluded that

"[b]ecause the notice of the initiation of juvenile proceedings

was not properly served on the required parties, the transfer of

jurisdiction was ineffectual and the subsequent convictions are

void."    Id. at 315, 504 S.E.2d at 399.

       Thomas argues that the circuit court did not acquire

jurisdiction to try him as an adult because the transfer

proceedings in the juvenile court were invalid.   He essentially

contends that after the death of his adoptive parents, his

biological mother and father again became his "parents" and,

thus, were entitled under former Code § 16.1-243 to notice of




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the transfer proceedings in the juvenile court.   We disagree

with Thomas's argument.

       In 1990, when Thomas was charged with the four offenses,

former Code § 16.1-263(A) provided, in relevant part:

       After a petition has been filed, the court shall
       direct the issuance of summonses, one directed to the
       child, if the child is twelve or more years of age,
       and another to the parents, guardian, legal custodian
       or other person standing in loco parentis, and such
       other persons as appear to the court to be proper or
       necessary parties to the proceedings . . . . The court
       may direct that other proper or necessary parties to
       the proceedings be notified of the pendency of the
       case, the charge and the time and place for the
       hearing.

       In accordance with these provisions, Thomas's aunt and

uncle, as persons "standing in loco parentis," were served

with notice of the transfer hearing.   This service of

process, along with the notice that was provided to Thomas,

fully complied with the requirements of former Code § 16.1-

263 because, at that time, Thomas had no parents, guardian,

or legal custodian.   Under Code § 63.1-233, the final

adoption order entered in 1982 divested Thomas's biological

parents of all legal rights and obligations with respect to

him.   That order, in conformance with the provisions of the

statute, stated that Thomas was "to all intents and

purposes . . . the child of said petitioners, Herbert B.

Marshall and Virginia Marshall, husband and wife."    See

Code § 63.1-233.


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     We find no merit in Thomas's contention that the consent

forms executed by his biological parents imposed limiting

conditions on the adoption, which resulted in their resuming the

status of "parents," for purposes of former Code § 16.1-263,

when the adoptive parents died.    The final adoption order

unconditionally divested the biological parents of all legal

rights with respect to Thomas.     See Code § 63.1-233; Doe v. Doe,

222 Va. 736, 746, 284 S.E.2d 799, 805 (1981); Sozio v. Thorpe,

22 Va. App. 271, 275, 469 S.E.2d 68, 70 (1996); Cage v.

Harrisonburg Dept. of Social Services, 13 Va. App. 246, 249-50,

410 S.E.2d 405, 406-07 (1991).    Since the adoption order was not

appealed within six months after it was entered, its validity is

"not subject to attack in any proceedings, collateral or

direct."    Code § 63.1-237.   Thus, Thomas's biological father was

not his "parent" within the meaning of former Code § 16.1-263 at

the time of the transfer proceedings and was not entitled to

notice under that statute.

     Thomas next asserts an alternative argument that, if he had

no parents at the time of the juvenile court proceedings, "there

was a jurisdictional defect in the transfer proceedings because

a person required to be summonsed, i.e., the legal guardian or

guardian ad litem, was not notified."     We disagree with this

argument.




                                   7
       First, Thomas had no legal guardian.     Second, there is no

requirement that a guardian ad litem be appointed to represent a

juvenile defendant in a transfer proceeding.      We resolved this

issue in Wright v. Commonwealth, 245 Va. 177, 184, 427 S.E.2d

379, 384 (1993), vacated on other grounds, 512 U.S. 1217 (1994),

stating that "[a] defendant under a disability who is

represented by counsel need not have appointed to him a guardian

ad litem unless a statute applicable to a particular case

expressly requires such an appointment."       Id. at 183, 427 Va. at

384.       We held that because the juvenile transfer statutes

(former Code §§ 16.1-269 to –272) did not expressly require the

appointment of a guardian ad litem for a juvenile defendant at a

transfer hearing, the juvenile defendant had no such right.       Id.

Thus, in the present case, we conclude that the statutory notice

requirements for a transfer hearing, recognized by this Court in

Baker, were fully satisfied. 2

       For these reasons, we will deny Thomas's petition for a

writ of habeas corpus.

                                                          Writ denied.




       2
      We reject Thomas's additional argument that because the
transfer petitions listed Robert Thomas as the defendant's
father, the Commonwealth should be barred from asserting that
Robert Thomas was not the defendant's "parent" at the time of
the transfer proceedings. The terms "father" and "parent" are
not synonymous under the facts of this case.

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