Howerton v. Commonwealth

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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