Present: All the Justices
STEVE EDWARD ROACH
v. Record No. 991816 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 5, 1999
DIRECTOR, DEPARTMENT
OF CORRECTIONS
UPON A PETITION FOR A WRIT OF HABEAS CORPUS
Steve Edward Roach was tried by a jury in the Circuit Court
of Greene County and was convicted of capital murder, robbery,
and use of a firearm in the commission of a felony. The capital
murder conviction was based on the murder of Mary Ann Hughes in
the commission of robbery while armed with a deadly weapon.
Code § 18.2-31(4). Roach, who was 17 years old when the crimes
were committed, was sentenced to death on the capital murder
conviction based on the aggravating factor of "future
dangerousness." The trial court also sentenced Roach to three
years' imprisonment for the use of a firearm in the commission
of a murder and to life imprisonment for robbery. We affirmed
the trial court's judgment in Roach v. Commonwealth, 251 Va.
324, 468 S.E.2d 98, cert. denied, 519 U.S. 951 (1996).
Roach filed the present petition for a writ of habeas
corpus invoking the original jurisdiction of this Court. He
alleges that his parents were not provided notice as required by
former Code § 16.1-263 of proceedings in the Greene County
Juvenile and Domestic Relations District Court (juvenile court)
that resulted in his transfer to the Greene County Circuit Court
(circuit court) for trial as an adult. 1 He contends that under
our recent holding in Commonwealth v. Baker, 258 Va. 1, 516
S.E.2d 219 (1999) (per curiam), the failure to provide such
notice renders his convictions void for lack of jurisdiction.
On December 7, 1993, two juvenile petitions were issued
against Roach, charging him with the capital murder of his 70-
year-old neighbor, Mary Ann Hughes, and use of a firearm in the
commission of that felony. On December 10, 1993, a third
juvenile petition was issued, charging Roach with the robbery of
Hughes. Also on December 10, 1993, Roach's father, John Edward
Roach, and mother, Shirley Ann Roach, were personally served
with written notice that a hearing would be held that day in the
juvenile court to determine whether the criminal charges against
Roach should be transferred to the circuit court.
The transcript of the December 10, 1993 hearing reflects
that both parents were present. During that proceeding, the
juvenile court heard various motions and scheduled the transfer
1
Roach raised the same claims in a petition for writ of
coram vobis filed in the circuit court. That court denied his
petition by order dated July 30, 1999. Roach's appeal of the
circuit court order is pending in this Court and has been
consolidated with this habeas corpus proceeding. See Roach v.
Commonwealth of Virginia, Record. No. 991817. We will decide
the coram vobis appeal separately by order and, for reasons not
2
hearing for February 11, 1994. The juvenile court also issued
written notice of the February 11, 1994 hearing, and a sheriff's
return of service of process reflects that both parents were
personally served with notice of the hearing. On February 11,
1994, both parents were present in the juvenile court, and that
court continued the case until May 6, 1994, "for transfer
hearing."
Prior to the May 6, 1994 transfer hearing, at the request
of Roach's counsel, the juvenile court issued a witness subpoena
for Roach's mother requiring her appearance at the hearing.
Both parents appeared at the May 6, 1994 proceeding. During the
hearing, at the request of Roach's counsel, the juvenile court
excluded all witnesses, including Roach's mother, from the
courtroom. After hearing the evidence and argument of counsel,
the juvenile court stated:
The only thing in this case that I want to read
the authorities more clearly on is the voluntariness
of this statement [Roach's purported confession dated
December 6, 1993] . . . [A]ssuming that that
voluntariness is established and the Court is
satisfied with it, I don't have any reservations about
certifying this case. But it seems to me that the
case, in meeting these standards [for transfer to the
circuit court under former Code § 16.1-269], has to
rest upon this statement being used in evidence, so
that the statement, itself, is very essential and
crucial.
germane to this appeal, we will affirm the circuit court's
judgment in that case.
3
The juvenile court stated that it would take under
advisement the issue of the admissibility of Roach's statement.
In an order dated May 13, 1994, the juvenile court directed that
Roach be transferred to the circuit court for further criminal
proceedings. In that order, the juvenile court ruled, among
other things, that "from the evidence presented . . . there is
probable cause to believe the juvenile committed the delinquent
act[s] alleged."
Roach noted his appeal from the transfer decision pursuant
to former Code § 16.1-269(E). On June 16, 1994, the circuit
court conducted a review of the transfer decision. On July 5,
1994, the circuit court entered an order stating that "[a]
review of the transcript of the transfer hearing [in the
juvenile court] shows the statement was never admitted into
evidence and it was necessary as evidence in order to show
probable cause." The order remanded the case to the juvenile
court "for a ruling on whether the Defendant's statement is to
be admitted into evidence."
On July 22, 1994, the juvenile court conducted a hearing in
response to the circuit court's order. The record does not show
that Roach's parents were given notice of that hearing or that
they were present in the juvenile court. At the hearing, the
juvenile court heard argument concerning the admissibility of
Roach's statement and whether the Commonwealth had established
4
probable cause to believe that Roach committed the three
offenses. After Roach made a motion to strike the evidence, the
juvenile court reviewed the content of Roach's purported
confession and stated:
Having reviewed that again, I find that the case
should be sent up and that a motion to strike is
overruled and I find that that statement in itself,
coupled with the other evidence . . . all of it led
. . . to the conclusion that this was a case which
should be transferred, and I restate that and confirm
that decision, particularly in light of the remand
which indicated that the Court should make a specific
finding on the record that the statement is
admissible.
The juvenile court then entered an order entitled "Transfer
Order." In that order, the juvenile court specified that
Roach's statement "is hereby admitted into evidence" and found
that there was probable cause to believe that Roach committed
the crimes charged. The order concluded: "This case is again
Transferred and Certified to the Circuit Court . . . for further
proceedings in accordance with the previous Transfer Order dated
May 13, 1994."
The circuit court held a hearing on September 1, 1994, to
complete its review of the juvenile court's transfer decision.
After the hearing, the circuit court entered an order
authorizing the Commonwealth to seek an indictment on all three
charges.
5
In his petition for a writ of habeas corpus, Roach alleges
that his parents were not given notice of all the transfer
proceedings in the juvenile court. He argues that our decision
in Baker compels a conclusion that the circuit court did not
acquire jurisdiction to try him on the three felony charges.
In Baker, 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). 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.
Roach contends that the May 6, 1994 transfer hearing was
defective because his mother was not given the required
statutory notice, and that her compulsory attendance as a
6
witness at this hearing did not constitute a waiver of notice.
Roach also asserts that the circuit court did not acquire
jurisdiction over him as a result of the May 13, 1994 transfer
order because the juvenile court did not make a "valid" probable
cause determination in that order. Roach contends that the July
22, 1994 hearing in the juvenile court, at which a probable
cause determination was made, also was defective because neither
parent was given notice of that hearing, which rendered the
later proceedings in the circuit court void. We disagree with
Roach's arguments.
We consider these arguments in the context of the statutory
framework established by the General Assembly for the
adjudication of offenses allegedly committed by a juvenile.
These statutes give the juvenile and domestic relations district
courts "exclusive original jurisdiction" over "all cases,
matters and proceedings" concerning a juvenile who is alleged to
have been delinquent. Code § 16.1-241(A). The transfer
decision made by a juvenile and domestic relations district
court is a proceeding within the meaning of this provision. 2
When a juvenile court transfers a juvenile to a circuit court
for further criminal proceedings, the circuit court has
exclusive jurisdiction on appeal of that decision to review the
7
juvenile court proceedings to determine whether "there has been
compliance with [former Code § 16.1-269]." See former Code
§ 16.1-269(A)(3).
In 1993, when Roach was charged with the three felony
offenses, the notice provisions of former Code § 16.1-263
stated, in relevant part:
A. 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.
B. . . . Notice of subsequent proceedings shall be
provided to all parties in interest.
The May 6, 1994 transfer hearing was a "subsequent
proceeding" within the meaning of former Code § 16.1-263 and,
thus, under the language of the statute, Roach's mother was
required to be given "notice" of that proceeding. Roach argues,
however, that actual notice to the mother did not satisfy this
requirement because she appeared under compulsory process and,
therefore, did not "waive service of summons by written
stipulation or by voluntary appearance at the hearing," as
2
Effective July 1, 1994, the statutes governing the transfer
of juveniles were repealed and replaced with new statutes. See
1994 Va. Acts of Assembly, ch. 859 and ch. 949.
8
permitted by the statute. See former Code § 16.1-263(D)
(emphasis added).
We find no merit in this argument because former Code
§ 16.1-263(D) refers only to the initial summons to be served on
parties in interest. Following service of that summons, which
was effected on both parents in this case, there was no
prescribed method of notice of subsequent proceedings. See
former Code § 16.1-263(B). The mother was served with a summons
to appear as a potential witness, she appeared at the hearing,
and she was excluded from the courtroom at the request of
Roach's counsel while waiting to testify. Neither Roach nor his
mother objected to the adequacy of the notice she received.
Under these circumstances, we hold that the mother's appearance
in court satisfied the statutory notice requirements of former
Code § 16.1-263.
Our decision in Turner v. Commonwealth, 216 Va. 666, 222
S.E.2d 517 (1976), directly supports this conclusion. In
Turner, the record failed to show that the juvenile's parents
received written notice of his transfer hearing as required by
former Code § 16.1-176(a)(3). However, his parents were present
at the transfer hearing, along with the juvenile and his
attorney, and no one objected to the adequacy of the parents'
notice of the hearing. Id. at 668, 222 S.E.2d at 519. We held
that when a parent had actual notice of a transfer hearing, any
9
departure from the statutory requirement of written notice was a
procedural, rather than a jurisdictional, defect that "may be
cured or waived by the appearance of proper and necessary
parties and a failure to object to inadequacy of notice." Id.
at 668, 222 S.E.2d at 519. Thus, in the present case, any
defect in the manner of notice to Roach's mother was cured by
her appearance at the hearing and the absence of any objection
at the hearing to the adequacy of that notice. See id.
We also find no merit in Roach's assertion that his
mother's exclusion from the courtroom as a potential witness
eliminated the substantive protection of the notice requirement
because she was not able to be present with Roach at the hearing
and provide him guidance. The mother was excluded from the
hearing on the motion of Roach's counsel without any suggestion
that her dual role as parent and potential witness required that
she be allowed to remain in the courtroom. Thus, her absence
from the courtroom during the hearing was attributable only to
Roach, and not to the juvenile court or the Commonwealth.
We next address Roach's contention that the May 13, 1994
order did not result in a valid transfer of Roach's cases to the
circuit court, and that the transfer actually occurred at the
July 22, 1994 hearing in the juvenile court, of which Roach's
parents were not given notice. Contrary to Roach's assertion,
the May 13, 1994 order demonstrates that the juvenile court made
10
the findings required by statute for the jurisdictional
transfer. Former Code § 16.1-269 did not require the juvenile
court to state the basis for its probable cause determination.
Thus, the juvenile court was not required to include in its
order a specific ruling on the admissibility of Roach's
confession. See former Code § 16.1-269(A)(3).
On Roach's appeal from the May 13, 1994 order, the circuit
court initiated its compliance review under former Code § 16.1-
269(A)(3). At a June 16, 1994 hearing, the circuit court
considered the sufficiency of the evidence of probable cause to
show that Roach committed the charged offenses. This review of
the juvenile court's probable cause determination was contrary
to the directive of former Code § 16.1-269(E), which provided in
relevant part that on a juvenile's appeal of a transfer
decision:
The circuit court shall, within a reasonable time
after receipt of the case from the juvenile court, (i)
examine all such papers, reports and orders and (ii)
conduct a hearing to take further evidence on the
issue of transfer, to determine if there has been
compliance with this section, but without
redetermining whether the juvenile court had
sufficient evidence to find probable cause, and enter
an order either remanding the case to the juvenile
court or advising the attorney for the Commonwealth
that he may seek an indictment. [Emphasis added.]
A court has only such jurisdiction as is granted to it by
statute or by the Constitution. Morrison v. Bestler, 239 Va.
166, 169, 387 S.E.2d 753, 755 (1990); County School Bd. v.
11
Snead, 198 Va. 100, 104-05, 92 S.E.2d 497, 501 (1956); Humphreys
v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 894 (1947).
In granting the circuit court subject matter jurisdiction to
determine whether the juvenile court complied with the transfer
requirements of former Code § 16.1-269, the legislature
expressly excluded from that authority any substantive review of
the sufficiency of the evidence to support a finding of probable
cause. The juvenile court's order of May 13, 1994, showed on
its face that the juvenile court found probable cause to believe
that Roach committed the charged offenses. 3 Thus, in conducting
its compliance review of Roach's transfer, the circuit court had
no authority to review this aspect of the juvenile court's
transfer decision.
Because the circuit court exceeded its jurisdiction in
ruling on the sufficiency of the evidence to support a finding
of probable cause, the July 5, 1994 order purporting to remand
the issue of the admissibility of Roach's statement was void.
See Parrish v. Jessee, 250 Va. 514, 520-21, 464 S.E.2d 141, 145
(1995); Morrison, 239 Va. at 170, 387 S.E.2d at 755-56; Brown v.
Commonwealth, 215 Va. 143, 145, 207 S.E.2d 833, 835-56 (1974);
3
Roach's argument that the juvenile court failed to make
this probable cause determination is without merit, because the
argument is based on Roach's unsupported allegation that the
court failed to decide the admissibility of his statement in the
week after the transfer hearing before entering the May 13, 1994
order.
12
Bryant v. Commonwealth, 198 Va. 148, 151, 93 S.E.2d 130, 132
(1956). Thus, the proceedings in the juvenile court based on
that order were a nullity, and the juvenile court's July 22,
1994 order also was void. See Parrish, 250 Va. at 520, 464
S.E.2d at 145; Morrison, 239 Va. at 170, 387 S.E.2d at 755-56;
New York, Philadelphia & Norfolk R.R. Ferry Co. v. Commonwealth,
196 Va. 428, 432, 83 S.E.2d 782, 784 (1954).
The Commonwealth's effective consent to remand the issue of
the admissibility of Roach's statement to the juvenile court
does not alter this result because neither consent of the
parties, nor waiver, can confer subject matter jurisdiction on a
court. Morrison, 239 Va. at 169-70, 387 S.E.2d at 755; Brown,
215 Va. at 145, 207 S.E.2d at 836; Snead, 198 Va. at 105, 92
S.E.2d at 501; Humphreys, 186 Va. at 772-73, 43 S.E.2d at 894.
Therefore, because the proceedings in the juvenile court on July
22, 1994, were a nullity and, thus, had no legal effect, the
Commonwealth was not required to notify Roach's parents of that
hearing.
When Roach appeared in the circuit court with his parents
and counsel on September 1, 1994, for review of the transfer
decision, the circuit court had jurisdiction to consider the
transfer decision under former Code § 16.1-269 and the juvenile
court's May 13, 1994 transfer order. Thus, the circuit court's
order of September 1, 1994, which authorized the Commonwealth to
13
seek an indictment in the case, confirmed the juvenile court's
transfer decision and completed the jurisdictional transfer of
Roach's offenses to the circuit court in compliance with the
provisions of former Code § 16.1-269. We conclude, therefore,
that the statutory notice requirements for a transfer hearing,
recognized by this Court in Baker, were fully satisfied in the
present case.
For these reasons, we will deny Roach's petition for a writ
of habeas corpus.
Writ denied.
14