COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Agee and Senior Judge Coleman
Argued at Salem, Virginia
LAWRENCE DONAL HOWERTON, S/K/A
LAWRENCE DONAL HOWERTON, JR.
OPINION BY
v. Record No. 1486-00-3 JUDGE G. STEVEN AGEE
JULY 17, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Phyllis Marie Mosby (Office of the Public
Defender, on briefs), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
In January and February, 1996, the appellant, Lawrence
Donal Howerton, Jr. (Howerton), a juvenile, was charged by
petition with murder and the use of a firearm in the commission
of murder. On April 8, 1996, the Juvenile and Domestic
Relations Court for the City of Danville (JDR Court) transferred
these charges to the Circuit Court of the City of Danville where
Howerton was tried and convicted in a jury trial on July 23 and
24, 1996. Subsequent appeals to this Court and the Supreme
Court of Virginia were denied, as were Howerton's petition for a
writ of habeas corpus to the Supreme Court and his motion to
that Court to vacate his convictions.
On April 21, 2000, Howerton filed with the Danville Circuit
Court a motion to vacate void convictions for the murder and use
of a firearm charges. Howerton alleged that the JDR Court did
not have jurisdiction over him because his father never received
proper notice, and the JDR Court failed to properly serve him
with a copy of the petitions against him. He argued that his
convictions were, therefore, void due to lack of jurisdiction of
the JDR Court, thereby rendering the transfer to the circuit
court and the resulting convictions void. In addition, Howerton
argues that the failure of the JDR Court to follow requisite
notification standards violated his right to due process of law.
The circuit court denied Howerton's motion, and Howerton now
appeals that decision. For the following reasons, we affirm the
decision of the circuit court.
BACKGROUND
On January 28, 1996, the JDR Court petition was issued
charging Howerton, age sixteen, with the murder of Anthony
Spraggins, Jr. On the petition, the father's name and address
are blank, but the name of Howerton's mother, Irma Jones, and
her address are shown. On February 22, 1996, a second JDR Court
petition charged Howerton with using a firearm in that same
murder. The parental information shown on the second petition
was identical to the murder petition.
On March 11, 1996, the JDR Court held a detention hearing
on the murder and the firearm charges. The "Record of
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Proceeding" for each charge shows as present "father" and
"juvenile." The record for the murder charge also contains the
following statement under "Findings of Court": "Defendant wants
to retain attorney – parent (father) to notify the Court of
attorney within ten days." A similar notation is written on the
Record of Proceedings for the firearm charge.
The March 11, 1996 records, signed by the JDR judge on
March 21, 1996, denote the next hearing date and time scheduled
in this matter to be "April 1, 1996 – 12:00 p.m." Also on
March 21, Howerton and his parents, Irma Jones and Lawrence
Howerton, completed and signed a form entitled, "Financial
Statement – Eligibility Determination for Indigent Defense
Services." The family also completed a form entitled, "Request
for Representation By A Lawyer" and the JDR Court appointed
Public Defender Phyllis Mosby as counsel.
On March 14, 1996, the Commonwealth filed a notice of
motion to transfer that was "mailed or delivered" to Howerton
and his mother. On March 25, 1996, the JDR Court granted
defense counsel's motion for a continuance to April 8, 1996.
Howerton and his mother were each personally served with a
summons to appear at the April 8, 1996 hearing, but the summons
does not indicate the petition was attached.
On April 8, 1996, the JDR Court held a transfer hearing on
both charges, and ordered the matters transferred to the circuit
court for Howerton to be tried as an adult. A
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"Transfer/Retention Order" for each charge and the two
accompanying "Record of Proceedings" indicate that the "father",
"mother" and "juvenile" were all present.
Howerton was tried and convicted of both charges in a
two-day jury trial on July 23 and 24, 1996. On August 29, 1996,
Howerton was sentenced to serve a total of thirty-three years
incarceration for murder and three years incarceration for the
use of a firearm in the commission of a murder.
At no time before or during his trial or at sentencing did
Howerton challenge the circuit court's jurisdiction for any of
the reasons he now raises in this appeal. On April 21, 2000,
Howerton, pro se, filed a motion to vacate void convictions in
the circuit court, alleging the contentions now before us.
Howerton attached to his motion affidavits from his biological
father and mother. His father's affidavit states, inter alia:
On or about March 21, 1996, Mrs. Howerton
and I appeared before the Juvenile and
Domestic Relations District Court and signed
a document captioned Financial Statement –
Eligibility Determination for Indigent
Defense Services, verifying that we were
unable to afford the services of a retained
lawyer for Howerton, Jr., on said charges
. . . . I did not ever again appear before
any court of law with respect to the crimes
allegedly committed by Howerton, Jr.
The affidavit further states that the father was never
personally served with a summons and a petition informing him of
the charges against his son and the time, date and place of the
hearings on those charges.
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Howerton's mother's affidavit states, in relevant part,
that:
On or about April 8, 1996, the Juvenile and
Domestic Relations District Court conducted
a hearing to determine whether it should
retain jurisdiction over my son's charges or
certify him to the Circuit Court of
Danville, Virginia, to be tried as an adult.
Mr. Howerton, Sr., was not present at that
hearing; instead Lloyd Jefferies, who is my
current husband, attended that hearing with
me. Howerton, Sr., did not attend my son's
hearing or trial.
Howerton did not request a hearing on his motion, and none
occurred. On June 2, 2000, the circuit court judge entered a
written order in which he held:
For reasons appearing to the Court and after
due consideration and review of the written
motion which was filed in the Circuit Court
Clerk's office on April 21, 2000 to vacate
convictions, the response and the argument
presented, the Court's record in said case
indicates the father was present and had
notice of the charges. As a result, there
is no due process violation and the
petitioner is not entitled to the relief
sought. The said motion is hereby
dismissed.
ANALYSIS
A. Jurisdiction
Code § 16.1-263(A) states that "[a]fter 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 . . . ." Code § 16.1-263(B)
further provides that "[a] copy of the petition shall accompany
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each summons for the initial proceedings. Notice of subsequent
proceedings shall be provided to all parties in interest."
Howerton argues on appeal that neither his father nor he was
served with copies of the petitions and, therefore, his
convictions must be vacated due to noncompliance. Under the
circumstances of this case, we disagree.
1. Father's Notification
"We have held that 'compliance with [Code § 16.1-263]
relating to procedures for instituting proceedings against
juveniles, [is] mandatory and jurisdictional. The failure to
strictly follow the notice procedures contained in the Code
[deny the defendant] a substantive right.'" Weese v.
Commonwealth, 30 Va. App. 484, 489, 517 S.E.2d 740, 743 (1999)
(quoting Karim v. Commonwealth, 22 Va. App. 767, 779, 473 S.E.2d
103, 108-09 (1996) (en banc)). We have also held that where a
JDR Court conducts a delinquency proceeding without notifying
the parents or certifying that notice cannot reasonably be
obtained, a conviction order resulting from the proceedings is
void. See Baker v. Commonwealth, 28 Va. App. 306, 315, 504
S.E.2d 394, 399 (1998), aff'd per curiam, 258 Va. 1, 517 S.E.2d
219 (1999).
Furthermore, where the void juvenile court order purports
to transfer jurisdiction over the juvenile to a circuit court,
the circuit court does not acquire jurisdiction and the
resulting conviction orders are void, unless the necessary
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parties have waived the defect or the defect has been otherwise
corrected. See e.g., Baker, 28 Va. App. at 313, 504 S.E.2d at
398; Karim, 22 Va. App. at 779-80, 473 S.E.2d at 108-09. Based
on these holdings and citing his parents' affidavits, Howerton
argues that his convictions must be overturned because his
father was not served with a summons and a copy of the petition
nor was the father notified of subsequent proceedings. We
disagree.
On the issue of service upon Howerton's father, we agree
that the record fails to show that the mandatory service
required by Code § 16.1-263(A) was made. However, failure to
comply with this requirement does not preclude the JDR Court
from obtaining jurisdiction. The version of Code § 16.1-263(D)
then in effect permitted a party other than the juvenile to
waive service of the summons by voluntary appearance at the
hearing. Here, the record reflects that at the initial
detention hearing, Howerton's "father" was present and informed
the court that he wished to obtain an attorney for his son.
A court speaks through its orders, and we presume that
these orders accurately reflect what transpired. Waterfront
Marine Constr., Inc. v. North End 49ers, 251 Va. 417, 427 n.2,
468 S.E.2d 894, 900 n.2 (1996); Stamper v. Commonwealth, 220 Va.
260, 280-81, 257 S.E.2d 808, 822 (1979), cert. denied, 445 U.S.
972 (1980). The burden is on the party alleging an irregularity
in a court proceeding to show affirmatively from the record that
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the irregularity exists. Hagood v. Commonwealth, 157 Va. 918,
929, 162 S.E. 10, 13 (1932). Howerton has not met this burden.
The record shows the JDR Court referring to the father as
the one who informed the court at the initial proceeding that he
wished to obtain an attorney for Howerton. This record was not
challenged until years after the conviction, and it was not
challenged by showing flaws in the record but rather by
submitted affidavits that do not explain why the court would
have erroneously thought the father was present at the hearing
on March 11, 1996. Finding Howerton's burden is not met, we
presume the record is correct and the failure of the court to
serve a summons and petition on the father is waived pursuant to
former Code § 16.1-263(D) by father's appearance.
In regards to the father being given notice of the transfer
hearing pursuant to subsection B, we find the father was
notified on March 21, 1996 of the April 1, 1996 hearing. The
father admits he was present in court on March 21 to make
arrangements for appointed counsel. The court's records from
that day show that counsel was appointed at that time and the
April 1 date was denoted.
The April 1, 1996 hearing, however, was continued until
April 8, 1996 on the motion of defense counsel. Nothing in the
record indicates that the father had written notice of this new
date. Yet, in Roach v. Director, Department of Corrections, 258
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Va. 537, 522 S.E.2d 869 (1999), the Supreme Court of Virginia
held
that when a parent had actual notice of a
transfer hearing, any 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 545, 522 S.E.2d at 873 (quoting Turner v. Commonwealth,
216 Va. 666, 668, 222 S.E.2d 517, 519 (1976)). The record
indicates that the father was present at the continued April 8,
1996 transfer hearing and, therefore, he had actual notice. His
voluntary appearance waived any notice defect.
Thus, any defect in the manner of notice to Howerton's
father was cured by his appearances at the hearings, denoted in
the court records, and the absence of any objection at the
hearing to the adequacy of that notice. See id.
While Howerton now challenges the record on appeal,
claiming his father was not in fact present, he has not
convinced us that the record reflecting his father's presence is
wrong and we must presume the transfer order accurately reflects
what transpired that day. See Stamper, 220 Va. at 280-81, 257
S.E.2d at 822 (where a defendant does not object to the accuracy
of an order within 21 days after its entry, an appellate court
may "presume that the order, as the final pronouncement on the
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subject, rather than a transcript that may be flawed by
omissions, accurately reflects what transpired.").
Under these circumstances, the lack of service and written
notice on Howerton's father did not prevent the JDR Court from
obtaining subject matter jurisdiction to transfer the matter to
circuit court for Howerton to be tried and convicted as an
adult.
2. Service on the Juvenile
Howerton also contends he was never served with copies of
the petitions filed against him, as required by Code § 16.1-263,
and, therefore, the JDR Court lacked jurisdiction to transfer
his case to the circuit court. He argues that the trial court
was required to vacate his convictions due to this
noncompliance. In support of his argument, Howerton cites our
holding that compliance with Code § 16.1-263 is "mandatory and
jurisdictional". See Baker at 310, 504 S.E.2d at 396; Karim at
779, 473 S.E.2d at 108-09. While we agree that the record does
not show actual service of the petitions (as opposed to the
summons, which discloses proof of service) on Howerton, we
disagree with his conclusion that such noncompliance mandates
the vacating of his convictions.
Our holding that compliance with Code § 16.1-263 is
"mandatory and jurisdictional" means the JDR Court must notify
the parents and the juvenile that petitions have been filed with
the JDR Court against the juvenile. This notice requirement is
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mandatory and jurisdictional. Undisputedly, Howerton was served
with the summonses requiring his appearances in the JDR court.
The fact that the petitions may not have been attached is a
procedural, not a jurisdictional, defect that did not affect
Howerton's substantive rights. The requirement that the
juvenile be served with the petition(s) is not a provision
created by the legislature to protect juvenile defendants, but,
rather, is the same requirement that is provided for any
criminal defendant generally. See Code § 19.2-75.
The Supreme Court of Virginia has held that the requirement
of providing a criminal defendant with a copy of a criminal
process is to inform the alleged offender of the specific
charge(s) made against him so that he may intelligently prepare
his defense. Dorchincoz v. Commonwealth, 191 Va. 33, 59 S.E.2d
863 (1950). Failure by the Commonwealth to comply, however, is
not reversible error unless it affirmatively appears that the
defendant was prejudiced thereby. Id. at 36, 59 S.E.2d at 864.
Compliance is not jurisdictional and any objection to
noncompliance is waived unless raised at trial. Rose v.
Commonwealth, 189 Va. 771, 55 S.E.2d 33 (1949).
Upon a review of the record, it is clear that Howerton did
not raise this objection at trial, but, instead, waited four
years after the trial. In addition, it is clear that Howerton
was not prejudiced by the failure of the Commonwealth to comply
with the service requirement. Evidenced by the record, the JDR
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Court provided Howerton and his attorney with the information
contained in the petitions, allowing them to intelligently
prepare Howerton's defense. First, on March 11, 1996, pursuant
to Code § 16.1-250, a detention hearing was held and nothing in
the record negates the presumption that the proceeding was
properly held. Therefore, we assume the presiding judge
informed Howerton of the "contents of the petition[s]," as
required by Code § 16.1-250(D). See id. Secondly, on March 21,
1996, court-appointed counsel was provided with the details of
the petition, as evidenced by the promptly-filed motion for a
continuance referring to the specific charges pending against
Howerton.
Finding no prejudicial effect caused by noncompliance with
Code § 16.1-263 and based upon Howerton's failure to object in a
timely fashion, we hold that the trial court correctly denied
the motion to vacate on this ground.
B. DUE PROCESS
Finally, Howerton alleges the trial court erred when it
overruled his motion to vacate based on his contention that his
constitutional due process rights were violated by the JDR
Court's failure to strictly follow the notification requirements
of Code § 16.1-263. Howerton bases this argument on his
father's lack of requisite notice.
As previously stated, we find any defect arising from
failure to follow the notice requirements as to the father was
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cured by his presence at the various court proceedings in the
JDR Court. Finding the notice errors cured, we hold no due
process violation occurred.
In addition, we find no violation of due process as it
pertains to notice to Howerton. In order to satisfy
constitutional due process requirements, the court must notify
the juvenile or his attorney prior to the hearing of the nature
of the charges against the juvenile and when and where the
petition and charges are to be heard.
An elementary and fundamental requirement of
due process in any proceeding which is to be
accorded finality is notice reasonably
calculated, under all the circumstances, to
apprise interested parties of the pendency
of the action and afford them the
opportunity to present their objections. The
notice must be of such a nature as
reasonably to convey the required
information.
Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314-15 (1950) (citations omitted). As the previous discussion
demonstrates, Howerton and his attorney were notified of the
pending action, the date of the transfer hearing and the
specific charges involved. We, therefore, find no due process
violation.
The circuit court's denial of the motion to vacate void
convictions is hereby affirmed.
Affirmed.
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