COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Willis and
Senior Judge Overton
Argued at Alexandria, Virginia
LOC T. DUONG, S/K/A
LOC TUAN DUONG
OPINION BY
v. Record No. 0522-00-4 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 27, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David T. Stitt, Judge
Kimberly J. Phillips, Assistant Public
Defender (James G. Connell, III, Assistant
Public Defender; Office of the Public
Defender, on briefs), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Pursuant to his guilty plea, Loc Tuan Duong was convicted of
two counts of grand larceny in violation of Code § 18.2-95. He
was sentenced to three years imprisonment with two years
suspended on each count. On appeal, he contends that the trial
court erred in considering at sentencing several juvenile
adjudications that were void under the holding in Baker v.
Commonwealth, 28 Va. App. 306, 505 S.E.2d 394 (1998), aff'd per
curiam, 258 Va. 1, 517 S.E.2d 219 (1999). For the reasons that
follow, we reverse the judgment of the trial court and remand
the case for resentencing.
I. BACKGROUND
On November 23, 1994, while Duong was a juvenile, the
Commonwealth filed two petitions in the Juvenile and Domestic
Relations District Court of Fairfax County (juvenile court)
charging him with receiving stolen goods and failure to appear.
The petitions listed Duong's mother's name and address. On the
line for Duong's father's name and address, the petitions read,
"Houng, Lac -- SAC." Duong was adjudicated delinquent pursuant
to these petitions.
On January 18, 1995, while Duong was a juvenile, the
Commonwealth filed three petitions in the juvenile court
charging him with one count of breaking and entering and two
counts of grand larceny. The petitions listed Duong's mother's
name and address. On the line for Duong's father's name and
address, the petitions read, "Houng, Loc, Address Unknown to
Petitioner." Duong was adjudicated delinquent pursuant to these
petitions.
On November 22, 1999, being then an adult, Duong pled
guilty in the trial court to two counts of grand larceny. The
pleas were entered pursuant to a plea agreement, which provided
that the court would sentence Duong within the range set by the
Virginia Sentencing Guidelines. The trial court accepted the
plea agreement and the pleas and, upon hearing a representation
of the evidence, convicted Duong of grand larceny. On Duong's
request, the court ordered a presentence report.
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Prior to sentencing, Duong moved to preclude consideration
of his juvenile adjudications because no notice had been given
to his father and, therefore, those adjudications were void
under the holding in Baker. The parties agreed that Lac Houng
or Loc Houng, listed on the 1994 and 1995 petitions as Duong's
father, was his stepfather, not his biological or legal father.
The trial court denied the motion, ruling that Duong sought to
make an impermissible collateral attack on the juvenile court
adjudications.
At sentencing, the trial court made Duong's juvenile court
record a part of the proceeding. Duong argued that the juvenile
court record showed neither notice having been given to his
father nor any finding as to why notice could not have been
given. See Code § 16.1-263(A). The court again rejected
Duong's contention, ruling that he could not collaterally attack
his juvenile adjudications and that the sentencing guidelines
were voluntary, not mandatory. The trial court sentenced Duong
to three years imprisonment with two years suspended on each
count, 1 the sentences to be served consecutively.
Duong contends that because his father was not given notice
of the juvenile proceedings against him, his juvenile
1
Considering the 1994 and 1995 juvenile adjudications, the
sentencing guidelines set the range of punishment at one year,
seven months, to three years, eleven months. If the juvenile
adjudications were not considered, the guidelines called for
probation and no imprisonment.
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adjudications are void and, therefore, could not be considered
in sentencing him on the larceny charges. We agree.
II. ANALYSIS
Code § 16.1-263(A) states that "[a]fter a petition has been
filed, the court shall direct the issuance of summonses . . . to
the parents . . . ." Id. 2 "We have held that 'compliance with
[Code § 16.1-263] relating to procedures for instituting
proceedings against juveniles, are mandatory and jurisdictional.
The failure to strictly follow the notice procedures contained
in the Code [deny the defendant] a substantive right and the
constitutional guarantee of due process.'" 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)). Thus, we have held that where a
juvenile court conducts a delinquency proceeding without
notifying the parents or certifying that notice cannot
reasonably be obtained, a resulting conviction order is void.
See Baker, 28 Va. App. at 315, 504 S.E.2d at 399; Williams v.
Commonwealth, 26 Va. App. 776, 781-82, 497 S.E.2d 156, 159
(1998); Karim, 22 Va. App. at 779-80, 473 S.E.2d at 108-09.
2
Although inapplicable here, effective July 1, 1999, Code
§ 16.1-263 was amended to permit the issuance of summonses to
"at least one parent" in lieu of the previous requirement that
summonses be served on "the parents." See 1999 Va. Acts, c.
952.
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The juvenile court did not give notice of the proceedings
against Duong to his father or certify on the record that such
notice could not reasonably be given. Therefore, Duong's prior
juvenile adjudications are void, and the trial court erred in
considering them when sentencing Duong on the grand larceny
charges.
The Commonwealth notes that Duong did not seek, in this
proceeding, to have his juvenile court adjudications voided and
thus extinguished. It argues that he cannot refrain from having
those adjudications ruled void while at the same time arguing
that they are void for the purpose of subsequent sentencing. We
disagree. A determination and adjudication that the earlier
convictions were void and extinguishing them as such would
require a direct attack on those adjudications in a properly
structured proceeding. This is not such a case and is not an
appropriate vehicle for such a direct attack. However, the
failure to have those adjudications officially voided does not
alter the fact that they are void and cannot be used against
Duong.
The Commonwealth argues that the sentencing guidelines are
discretionary and that the failure of a trial court to comply
with any or all of their provisions is not subject to appeal.
See Code § 19.2-298.01. It argues that the sentences imposed
were within the limits provided by law for the offenses for
which Duong pled guilty and, therefore, are sentences that the
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trial court was authorized to impose. Had Duong simply pled
guilty, this argument would be persuasive. However, he pled
guilty pursuant to a plea agreement, which was accepted by the
trial court. The plea agreement expressly provided that the
sentence imposed would be within the limits prescribed by the
guidelines. Having accepted the plea agreement, the trial court
was bound by this provision.
For these reasons, we reverse the judgment of the trial
court and remand this case for resentencing.
Reversed and remanded.
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