Tuesday 9th
April, 2002.
Carlos Demetrius Minor, s/k/a
Carlus Demetrius Minor, Appellant,
against Record No. 1996-00-2
Circuit Court No. 96-606F
Commonwealth of Virginia, Appellee.
Upon Remand from the Supreme Court of Virginia
In accordance with the order of the Supreme Court of
Virginia entered on October 23, 2001, the opinion previously rendered
by this Court on July 3, 2001 is withdrawn and the mandate entered on
that date is vacated.
As further directed by the order of the Supreme Court, and
in accordance with the decision of that Court in Commonwealth v.
Southerly, 262 Va. 294, 551 S.E.2d 650 (2001), the case is hereby
transferred to the Supreme Court of Virginia pursuant to Code
§ 8.01-677.1.
This order shall be published.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia
CARLOS DEMETRIUS MINOR, S/K/A
CARLUS DEMETRIUS MINOR
OPINION BY
v. Record No. 1996-00-2 JUDGE ROBERT P. FRANK
JULY 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Craig W. Sampson for appellant.
Michael T. Judge, Assistant Attorney General (Mark
L. Earley, Attorney General, on brief), for
appellee.
Carlos Demetrius Minor (appellant) was convicted, in a bench
trial, of possession of cocaine with the intent to distribute, in
violation of Code § 18.2-248. On appeal, he contends his conviction
is void under Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394
(1998), aff'd, 258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), because
the juvenile and domestic relations district court failed to give his
mother and father proper notice of the juvenile court proceedings.
We agree and reverse the conviction.
I. BACKGROUND
On April 3, 1996, the Richmond Juvenile and Domestic Relations
District Court issued a petition charging appellant with possession
of cocaine with intent to distribute. Appellant, who was born on
March 21, 1979, was seventeen years old at the time of the offense.
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The petition listed appellant's father's address as "North Carolina"
and indicated that appellant's mother was incarcerated in the
Virginia Department of Corrections. The petition also listed
appellant's grandmother, Barbara Alston, as his legal guardian.
On May 9, 1996, appellant, his attorney and his grandmother were
present for the transfer hearing. 1 The transfer order indicated that
neither parent was present, and there was no documentation that
either parent's location was unascertainable. 2 However, the order
noted that appellant's grandmother was present for the transfer
hearing.
On June 26, 1996, appellant, his attorney, his grandmother, and
the prosecutor appeared in the circuit court, and appellant entered a
plea of guilty. The court accepted the plea and, in accordance with
the plea agreement, directed that appellant be evaluated for the
Shock Incarceration Program.
On August 9, 1996, the trial court suspended imposition of
sentence against appellant on the condition that he enter and
successfully complete the Shock Incarceration Program. Later,
appellant violated the terms of the suspended sentence and,
ultimately, the entire suspended sentence was revoked.
On April 26, 2000, appellant, by counsel, filed a motion to
vacate his conviction. The motion asserted that his August 9, 1996
1
The record does not disclose if appellant's grandmother
received a summons as required by Code § 16.1-263.
2
Neither parent was notified under Code § 16.1-263(A).
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conviction was void because his mother and father were not given
notice of the transfer hearing and there was no indication in the
record that the location or identity of his mother or father was not
reasonably ascertainable.
The trial court heard the motion to vacate on June 5, 2000.
Appellant testified that he was seventeen years old at the time of
the offense and that to his knowledge, his mother and his father
were not notified of or present at the juvenile proceeding or the
transfer hearing. Appellant testified he had not seen his mother or
father in the past four years but he talked by telephone to his
mother, who was in the Goochland Penitentiary. Appellant admitted
that his grandmother was his legal guardian at the time of the
juvenile proceedings.
Appellant's mother, Monica Bryant, testified that she did not
have notice of the original proceedings and she was not present at
any of the hearings. She testified that she was in the Goochland
Penitentiary at the time of the juvenile proceedings. She further
testified that appellant's grandmother was his legal guardian at the
time of the juvenile proceedings.
On July 24, 2000, the trial court issued an opinion denying
appellant's motion to vacate. The court found appellant's
grandmother had legal custody at the time of the offense and,
although his grandmother had not been given written notice of the
transfer hearing, she was present at the transfer hearing and the
subsequent trial. The court concluded that because appellant's
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grandmother was his legal guardian at the time of the offense and she
was present at the transfer hearing on May 9, 1996, the requirements
of Code § 16.1-263 were satisfied.
II. ANALYSIS
Appellant, relying on Baker, 28 Va. App. 306, 504 S.E.2d 394,
contends the trial court lacked jurisdiction to convict him because
he was a juvenile at the time of the offense and the record failed to
establish that his biological parents were served with summonses as
required by Code § 16.1-263.
Former Code § 16.1-263(A) required that, "after a petition has
been filed," the juvenile court "shall direct the issuance of
summonses, one directed to the juvenile . . . and another to the
parents, guardian, legal custodian or other person standing in loco
parentis . . . . Where the custodian is summoned and such person is
not the parent of the juvenile in question, the parent shall also be
served with a summons. 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."
We have previously held "the provisions of Code §§ 16.1-263 and
16.1-264, 'relating to procedures for 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, 28 Va. App. at 310, 504 S.E.2d at 396 (quoting
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Karim v. Commonwealth, 22 Va. App. 767, 779, 473 S.E.2d 103, 108-09
(1996) (en banc)). Thus, a default in the requisite "notice of the
initiation of juvenile proceedings" renders "the transfer of
jurisdiction" "ineffectual and the subsequent
convictions . . . void." Id. at 315, 504 S.E.2d at 399.
The Commonwealth concedes that neither parent was notified of
the original juvenile proceedings or appeared at any stage of that
proceeding. However, the Commonwealth contends that the presence of
the grandmother as appellant's "legal guardian" satisfied the notice
requirements of Code § 16.1-263.
The Commonwealth maintains that the grandmother, not the
parents, was the only person with any custody interest in appellant,
citing Thomas v. Garraghty, 258 Va. 530, 522 S.E.2d 865 (1999), cert.
denied, 528 U.S. 1106 (2000). However, this reference ignores the
substantial difference between custody and adoption.
In Thomas, Thomas was adopted by his maternal grandparents with
the consent of both natural parents. Id. at 533, 522 S.E.2d at 867.
Prior to his commission of the offenses, Thomas' adoptive parents
died. Id. at 534, 522 S.E.2d at 867. He lived with his aunt and
uncle at the time of the offenses. Id. At the time of the offenses,
no legal guardian or custodian had been appointed by a court. Id.
The uncle and aunt, persons standing "'in loco parentis,'" were
notified of the juvenile proceedings under Code § 16.1-263(A). Id.
at 535, 522 S.E.2d at 868. Thomas contended his natural father
should have been given notice and the failure to do so rendered his
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capital murder conviction void under Baker. Id. at 532, 522 S.E.2d
at 866. The Supreme Court of Virginia held that the natural father,
after the entry of the final order of adoption, was divested of all
legal parental rights. Id. at 535, 522 S.E.2d at 867. The Supreme
Court wrote, "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." Id.
In this case, appellant's parents were not "divested" of their
parental rights. While appellant's grandmother had legal custody, an
award of custody does not divest non-custodial parents of all rights
concerning their child. The legislature recognized that
non-custodial parents retain certain rights when their minor child is
arrested. Code § 16.1-263 requires that notice be given to
non-custodial parents, in addition to the child's custodian. The
statute does not apply a different standard for notification of a
non-custodial parent than for notification of a custodial parent.
Indeed, Baker involved a non-custodial father who had no involvement
with Baker. In Karim, 22 Va. App. 767, 473 S.E.2d 103, the father
also was a non-custodial parent. We, therefore, hold that Code
§ 16.1-263(A) requires notice to both the custodian and parents, even
if the minor was not in the custody of one or both parents, unless
parental rights have been terminated.
The Commonwealth further contends appellant's guilty plea waived
the notice defect. A guilty plea "is a waiver of all defenses other
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than those jurisdictional . . . ." Peyton v. King, 210 Va. 194, 196,
169 S.E.2d 569, 571 (1969). The Commonwealth claims that neither
Baker nor Dennis Moore v. Commonwealth, 259 Va. 405, 527 S.E.2d 415
(2000), holds that a Baker claim is a jurisdictional defect. The
Commonwealth concludes that because a Baker notice defect is not
jurisdictional, it is waived by a guilty plea.
The Commonwealth misreads the entire line of Baker
jurisprudence. In Karim, we held that the provisions of Code
§§ 16.1-263 and 16.1-264, "relating to procedures for 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." Karim, 22 Va. App. at 779, 473 S.E.2d at
108-09.
In Dennis Moore, the Supreme Court of Virginia distinguished
subject matter jurisdiction from a court's authority to exercise that
jurisdiction by stating:
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. See, e.g., Jones
v. Commonwealth, 213 Va. 425, 428, 192 S.E.2d
775, 777 (1972); Gregory v. Peyton, 208 Va. 157,
159-60, 156 S.E.2d 624, 626 (1967); Peyton v.
French, 207 Va. 73, 80, 147 S.E.2d 739, 743
(1966) . . . .
The trial court's judgment in Baker was void
because the notice of initiation of juvenile
proceedings was not served on a required party,
the juvenile's biological father. Id. Thus,
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although the trial court had subject matter
jurisdiction over the felony indictments before
it, the court lacked authority to exercise its
subject matter jurisdiction over those offenses
because the Commonwealth failed to comply with
the mandatory notice requirements of former Code
§§ 16.1-263 and -264.
Dennis Moore, 259 Va. at 409-10, 527 S.E.2d at 417-18.
In each of the Baker claim cases, the circuit court and juvenile
and domestic relations district court had subject matter jurisdiction
to hear a criminal case. Code §§ 19.2-239 and 16.1-241. However,
due to the lack of notice in each case, the court lacked authority to
exercise that jurisdiction.
"The failure of the juvenile and domestic relations district
court to summon both of Southerly's parents, as then required by Code
§ 16.1-263, rendered the hearing in that court ineffective to
transfer jurisdiction to the trial court. As a consequence, all
subsequent proceedings in the trial court were void." Southerly v.
Commonwealth, 33 Va. App. 650, 655, 536 S.E.2d 452, 454 (2000).
Our recent decision in Langhorne v. Commonwealth, 35 Va. App.
19, 542 S.E.2d 780 (2001), resolved the very issue raised by the
Commonwealth. As in the present case, Langhorne's father was not
notified of the juvenile court proceedings under Code § 16.1-263.
Id. at 21, 542 S.E.2d at 781. Langhorne pled guilty in circuit court
and later challenged the validity of his conviction. Id. at 22, 542
S.E.2d at 781. We held:
[D]espite Langhorne's guilty plea, the
absence of notice to his father, under these
facts, rendered the juvenile court powerless to
exercise jurisdiction in order to conduct the
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transfer hearing. Thus, the circuit court's
judgment, and later revocation of probation, was
void because it lacked authority to exercise
subject matter jurisdiction.
Id. at 25, 542 S.E.2d at 782-83. We, therefore, hold that
appellant's guilty plea did not waive the defect of non-notification
of a parent.
Lastly, the Commonwealth contends that because a motion to
vacate is civil in nature, the Supreme Court of Virginia, not this
Court, has jurisdiction to hear this appeal. We have held that
"although a motion to vacate or set aside a conviction may be civil
in nature, the underlying charges [] were criminal," thus, giving us
jurisdiction to hear the appeal. Asby v. Commonwealth, 34 Va. App.
217, 221, 539 S.E.2d 742, 744 (2001), aff'd, ___ Va. App. ___,
___S.E.2d ___ (2001) (en banc).
Finding that appellant's conviction is void, we reverse the
judgment of the trial court and order appellant's conviction vacated.
We remand the case to the trial court for further proceedings, if the
Commonwealth be so advised.
Reversed and remanded.
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