COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Bumgardner and Frank
TRAVIS LAMONT POPE
OPINION BY
v. Record No. 0656-01-1 JUDGE ROBERT P. FRANK
FEBRUARY 5, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
(Keith Loren Kimball; Colgan, Kimball &
Carnes, on brief), for appellant. Appellant
submitting on brief.
(Randolph A. Beales, Attorney General;
Michael T. Judge, Assistant Attorney General,
on brief), for appellee. Appellee submitting
on brief.
Travis Lamont Pope (appellant) was convicted in a bench
trial of carjacking, in violation of Code § 18.2-58.1, and use
of a firearm while committing carjacking, in violation of Code
§ 18.2-53.1. On appeal, he contends the trial court erred in
considering sentencing guidelines that used his juvenile robbery
conviction. 1 He argues the juvenile conviction is void and,
therefore, the court should not have considered it. For the
reasons stated, we affirm both convictions.
1
For this case, we use the term "conviction" to refer to
both circuit court final determinations of guilt and findings of
delinquency by a juvenile and domestic relations district court.
BACKGROUND
The facts are not in dispute.
On October 30, 2000, appellant pled guilty to carjacking
and use of a firearm in the commission of carjacking. There was
no plea agreement. During the plea colloquy, appellant
acknowledged he understood the maximum possible sentence for
these offenses was life in prison plus three years. At the
conclusion of the plea proceeding, the circuit court accepted
the pleas and continued the matter for the preparation of a
pre-sentencing report. 2
On January 31, 2001, appellant filed a motion in limine,
asserting the sentencing range recommended by the Commonwealth
was improper because the range was calculated using sentencing
guidelines that considered a 1996 adjudication of delinquency
for a robbery offense, entered by the Juvenile and Domestic
Relations District Court of the City of Norfolk. In his motion,
appellant argued that since his father was not notified of the
juvenile proceeding, the judgment was void under Commonwealth v.
Baker, 258 Va. 1, 516 S.E.2d 219 (1999). 3 The circuit court
heard and denied the motion in limine on February 7, 2000.
2
Appellant does not contest the voluntariness of his guilty
plea nor did he at any time move to withdraw his guilty plea.
3
Prior to sentencing, appellant apparently filed a Baker
motion with the Norfolk Juvenile and Domestic Relations District
Court, but that motion was not heard prior to sentencing on the
carjacking and firearm offenses. Nothing in the record suggests
the juvenile adjudication was ever found void by any court.
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At sentencing, the court considered sentencing guidelines
prepared by defense counsel, which did not include the juvenile
robbery adjudication. These guidelines gave a range of seven
years and seven months to eleven years and ten months, with a
midpoint of ten years and three months. The Commonwealth's
guidelines gave a range of seventeen years and eight months to
twenty-seven years and nine months, with a midpoint of
twenty-three years and eleven months.
At the sentencing hearing, the victim testified that the
carjacking took place in front of his home, requiring that he
re-live the incident daily. He stated, "I'm not sure you can
live there every day and be the same."
Before announcing the sentence, the trial court stated:
I've looked at the guidelines that have been
prepared both by the Commonwealth and the
probation department, and I've also reviewed
the guidelines prepared by [the defense]
attorney. I considered all of them. The
trial court feels that, based on the
totality of the evidence and your record and
what actually occurred, this is not a
guidelines case. I've reviewed them and
considered both of them.
The court sentenced appellant to fifty years in prison, with
twenty-five years suspended, for the carjacking conviction and
three years in prison for the firearm conviction. In setting
this sentence, the court took into account appellant's
"senseless" and "extreme criminal behavior" and the trauma to the
victim.
ANALYSIS
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Appellant argues the juvenile robbery conviction is void
and, therefore, any sentencing that considered that conviction is
tainted. However, his underlying premise is wrong, given the
Supreme Court's recent decision in Nelson v. Warden of the Keen
Mountain Corr. Ctr., 262 Va. 276, 552 S.E.2d 73 (2001).
Prior to Nelson, the Supreme Court had provided support for
appellant's argument in Moore v. Commonwealth, 259 Va. 431, 437-
40, 527 S.E.2d 406, 409-11 (2000). Moore held that a juvenile
court did not have authority to exercise subject matter
jurisdiction over a child faced with criminal charges if that
court failed to notify the parents of the juvenile's charges,
thus making any judgment of that court void. Id.
Moore, like appellant here, had not preserved this argument
for direct appeal of the challenged conviction. Id. at 436, 527
S.E.2d at 408. The Supreme Court, however, found Moore's
conviction was void, explaining:
Subject matter jurisdiction is granted by
constitution or statute. Humphreys v.
Commonwealth, 186 Va. 765, 772, 43 S.E.2d
890, 894 (1947). It cannot be waived and
any judgment rendered without it is void ab
initio. Moreover, lack of subject matter
jurisdiction "may be raised at any time, in
any manner, before any court, or by the
court itself." Id., 43 S.E.2d at 893. In
contrast, "[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." [Dennis] Moore v.
Commonwealth, 259 Va. 405, 409, 527 S.E.2d
415, 417 (2000) (decided today) (holding
that the failure to give statutorily
required notice of initiation of juvenile
court proceeding to juvenile's parent is a
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defect in those proceedings cured by Code
§ 16.1-269.1(E)).
* * * * * * *
[W]e have held that the statutory
requirement of parental notice of the
initiation of proceedings in the juvenile
court, under various former versions of what
is now Code § 16.1-263, are mandatory in
nature and limit a court's rightful exercise
of its subject matter jurisdiction.
* * * * * * *
Based on this Court's unswerving adherence
to the nature of this notice requirement to
parents, this requirement as applied to
Moore's case was "mandatory." Thus,
because it failed to comply with this
mandatory requirement, the juvenile court
lacked authority to exercise its subject
matter jurisdiction over the offenses
charged against Moore.
Id. at 437-39, 527 S.E.2d at 409-10.
Nelson effectively overruled this analysis in Moore. The
Supreme Court stated in Nelson, "We are of [the] 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." 262 Va. at 282, 552 S.E.2d at 76. The Court
explained that the parental notification requirement is not
jurisdictional, but procedural, and "a failure to notify parents
[can] be waived by a failure to object," meaning "a failure to
comply with the requirement [would render] subsequent convictions
voidable and not void. To the extent David Moore conflicts with
these views, it is overruled." Id. at 285, 552 S.E.2d at 77.
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As in Nelson, appellant herein did not preserve his argument
that the juvenile court failed to give his father notice of the
robbery charge. Instead, he raised this issue collaterally by
filing a motion in limine to exclude consideration of that
juvenile conviction, after he pled guilty to the two separate
offenses appealed here.
A voidable judgment is subject to direct attack at any time
before the judgment becomes final, but is not subject to
collateral attack. 4 Jones v. Willard, 224 Va. 602, 607, 299
S.E.2d 504, 508 (1983); Commonwealth v. Brown, 28 Va. App. 781,
790, 508 S.E.2d 916, 921 (1999); Commonwealth v. Holtz, 12 Va.
App. 1151, 1154, 408 S.E.2d 561, 563-64 (1991).
Appellant said during the proceedings on the carjacking and
firearm charges that he was not asking the court to "wipe out"
the juvenile conviction. However, he argued that the previously
final judgment of delinquency was invalid based on Baker and its
progeny and, therefore, should not be considered for sentencing
purposes. This attack on the robbery conviction, made during an
unrelated case, is clearly collateral. See Black's Law
Dictionary 255 (7th ed. 1999) (defining "collateral attack" as
"[a]n attack on a judgment entered in a different proceeding").
Appellant also cites Duong v. Commonwealth, 34 Va. App. 424,
542 S.E.2d 47 (2001), to support his position that the juvenile
robbery conviction should not have been used in the sentencing
guidelines to calculate a sentencing range. The Duong panel
4
Limited exceptions to this rule do exist, such as
petitions for a writ of habeas corpus, see Code § 8.01-654 et
seq. However, those exceptions are not relevant here.
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found, since Duong's juvenile convictions were void for failure
to notify his father, that those convictions could not be used to
calculate a sentencing recommendation under the guidelines. Id.
at 428, 542 S.E.2d at 49.
However, Duong is not controlling here. Inasmuch as Duong
stands for the proposition that a prior juvenile conviction can
be collaterally attacked as void based on the failure to notify a
parent, Nelson effectively overrules that proposition. Compare
id. at 428, 542 S.E.2d at 48-49, with Nelson, 262 Va. at 281-82,
552 S.E.2d at 75-76.
Based on the Supreme Court's decision in Nelson, we find
appellant's argument is without merit. Accordingly, we affirm
the convictions.
Affirmed.
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