COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Bumgardner
Argued at Richmond, Virginia
EARNEST EUGENE WEESE, S/K/A
ERNEST EUGENE WEESE
OPINION BY
v. Record No. 1712-98-4 JUDGE SAM W. COLEMAN III
AUGUST 24, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
LeRoy F. Millette, Jr., Judge
Joseph W. Kaestner (J. Paul Walla; Kaestner,
Pitney and Jones, P.C.; Ashton, Walla
& Associates, P.C., on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Earnest Eugene Weese, a seventeen-year-old juvenile, pled
guilty in circuit court to aggravated sexual battery pursuant to a
plea agreement. The circuit court, hearing the case de novo on
appeal from the juvenile and domestic relations district court,
found Weese to be delinquent and committed him to an indefinite
term with the Department of Juvenile Justice. After turning
eighteen, Weese moved the circuit court to "amend the charge," in
accordance with the plea agreement, from aggravated sexual battery
to indecent exposure. Weese also moved the circuit court to
vacate the conviction and dismiss the petition on the ground that
the circuit court had lacked jurisdiction to enter the conviction
order. Weese appeals the circuit court's denial of both motions.
We hold that the circuit court had jurisdiction to enter the
conviction and that the circuit court did not err in denying the
motion to amend the charge against Weese. Accordingly, we affirm
the rulings and judgment of the trial court.
I. BACKGROUND
The Commonwealth charged Weese in juvenile court with
forcible sodomy against a child less than thirteen years of age.
After pleading guilty pursuant to a plea agreement to aggravated
sexual battery, Weese appealed the conviction to the circuit court
for a trial de novo. Eventually, Weese pled guilty in circuit
court to aggravated sexual battery pursuant to a second plea
agreement. Among the conditions of the plea agreement, "[i]t was
stated by the Commonwealth for the record, if the defendant has no
further violations prior to his eighteenth (18th) birthday they
will amend the charge to indecent exposure a misdemeanor." The
court accepted the plea, found Weese guilty of aggravated sexual
battery and, as a delinquent, committed him for an indeterminate
period to the Department of Juvenile Justice.
In the juvenile court proceeding, Weese's legal guardian
received notice of the proceeding in accordance with the
requirement of Code § 16.1-263 and she attended the juvenile court
proceeding. However, after Weese's appeal to the circuit court,
the guardian received no additional notice of and did not attend
the adjudicatory proceeding at which Weese entered into the plea
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agreement and pled guilty. Weese's guardian received notice of
and attended the dispositional hearing at which the court
sentenced Weese to an indeterminate commitment with the
Department of Juvenile Justice.
More than one year after entry of the final commitment order,
Weese moved the circuit court to enforce the plea agreement by
"amending the charge" to indecent exposure. Although the
commitment order was final, by requesting amendment of the charge,
Weese endeavored to reduce the offense to a misdemeanor for which
his maximum term of commitment would have been twelve months,
rather than an indeterminate delinquency commitment.
Additionally, and for the first time, Weese moved to vacate the
conviction and dismiss the petition on the ground that the circuit
court lacked jurisdiction because Weese's guardian received no
notice of the circuit court adjudicatory proceeding. Weese
asserted that notice of the circuit court proceedings was
mandatory and jurisdictional under Code § 16.1-263.
The circuit court denied both motions, finding that the
juvenile court only had authority to enforce the plea agreement
while the defendant was a juvenile and because Weese had waited
until after his eighteenth birthday to seek enforcement of the
plea agreement, the court had no authority to do so. The circuit
court also found that its proceedings did not violate the notice
requirements of Code § 16.1-263 and upheld the delinquency
conviction and indeterminate commitment.
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II. ANALYSIS
A. Notice
Weese contends that the circuit court erred when it tried
Weese without giving notice of the adjudicatory hearing to Susan
Atkins, his legal guardian who stood in loco parentis, as required
by either Code § 16.1-263(A) or (B).
Initially, we must determine whether Weese is barred by Rule
1:1 from challenging the circuit court's jurisdiction more than
twenty-one days after the final commitment order and whether it is
proper to do so merely by filing a motion to set aside a
conviction in the circuit court. Weese raised no objection at
trial to the Commonwealth's failure to notify Atkins of the
proceedings pending against him in the circuit court. In fact,
Weese first presented the argument to the circuit court over one
year after the court had entered the final commitment order. He
raised the issue by filing a motion to set aside the conviction.
This preliminary issue is controlled by the Supreme Court's
decision in Matthews v. Commonwealth, 216 Va. 358, 359, 218 S.E.2d
538, 540 (1975), which held that notwithstanding Rule 1:1, when a
defendant moves a trial court to set aside a void judgment more
than twenty-one days after its entry, the trial court has
jurisdiction to vacate that judgment and the Court further held
that filing a motion to set aside is a proper method for doing so.
Thus, unless the failure to follow Code § 16.1-263 rendered the
circuit court without jurisdiction to convict Weese, Rule 1:1 bars
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our review of this issue. However, if the trial court lacked
jurisdiction, then Weese's conviction would be void ab initio,
permitting Weese to challenge it at any time in an appropriate
proceeding. Accordingly, the jurisdictional issue was properly
before the circuit court by motion. Therefore, we must determine
whether the failure to notify Atkins, Weese's guardian, deprived
the circuit court of jurisdiction to convict Weese.
Code § 16.1-263(A) states that "[a]fter a petition is filed
the court shall direct the issuance of summonses . . . to the
parents, guardian, legal custodian, or other person standing in
loco parentis, and such other persons as appear to the court to be
proper or necessary parties to the proceedings." Code
§ 16.1-263(B) further provides that notice "of subsequent
proceedings shall be provided to all parties in interest."
We have held that "compliance with [Code §§ 16.1-263 and
16.1-264] 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." 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 parents, or the person in loco parentis, a
conviction order resulting from the proceedings is void. See
Baker v. Commonwealth, 28 Va. App. 306, 314-15, 504 S.E.2d 394,
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398-99 (1998), affirmed per curiam, 258 Va. 1, ___ S.E.2d ___
(1999); 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; see also, Jones v. Commonwealth, 213 Va. 425, 427-28,
192 S.E.2d 775, 777 (1972) (finding that the failure of a Court of
Hustings to notify a juvenile's parents rendered that court's
judgment void); Peyton v. French, 207 Va. 73, 79-80, 147 S.E.2d
739, 743-44 (1966) (involving former Code sections requiring
notice in juvenile hearings). Where the void juvenile court order
purported to transfer jurisdiction over the juvenile to a circuit
court, the resulting orders from the circuit court, which is
without jurisdiction, are void. See e.g. Karim, 22 Va. App. at
779-80, 473 S.E.2d at 108-09. To satisfy the constitutional due
process and jurisdictional notice requirements of Code § 16.1-263
and vest the juvenile court with jurisdiction, the juvenile
court's record must establish that the required parties received
proper notice of the proceedings. See id.
Weese does not argue that the juvenile court failed to notify
Atkins, Weese's guardian. The juvenile court served Atkins with a
summons, and she attended the juvenile court hearings. Instead,
Weese argues that the failure of the circuit court to serve notice
upon Atkins violated the mandate of Code § 16.1-263 and without
such notice in the de novo proceeding, the circuit court lacked
jurisdiction to hear the petition.
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As previously noted, the notice requirement of Code
§ 16.1-263(A), as it applies to the initiation of delinquency
proceedings and petitions against a juvenile, is mandatory and
jurisdictional. See id. Weese contends the language of Code
§ 16.1-263(A) has the same jurisdictional significance to a
juvenile petition heard de novo in the circuit court. In
addition, Weese claims the circuit court violated the mandate of
Code § 16.1-263(B) requiring that notice "of subsequent
proceedings . . . be provided to all parties in interest" which,
Weese asserts, is also mandatory and jurisdictional.
Code § 16.1-263(A) is mandatory and jurisdictional, and in
order to satisfy constitutional due process requirements, the
court must notify a juvenile's guardian 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).
In the context of juvenile delinquency hearings, the United
States Supreme Court has held that due process requires written
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notice to a child's parent or guardian of the charge pending
against his or her ward at the earliest practicable time. See
In Re Gault, 387 U.S. 1, 33 (1967). Due process "does not allow
a hearing to be held in which a youth's freedom and his parents'
right to his custody are at stake without giving [the parents]
timely notice, in advance of the hearing, of the specific issues
that they must meet." Id. at 33-34.
We find that the constitutional and jurisdictional notice
requirements were satisfied by notifying Atkins of the pendency
of the petition and hearing in the juvenile court. For
jurisdictional purposes, due process does not require the
circuit court to give Atkins notice after Weese appealed the
petition from the juvenile court. Just as with civil or
misdemeanor appeals from a general district court, no new
process or warrant need issue merely because the parties are
entitled to a de novo hearing. The initial pleadings and notice
given in the district court satisfy the constitutional and
jurisdictional notice requirements even though the case may be
heard de novo in the circuit court. Although Code § 16.1-263(A)
and (B) require a summons and additional notice of the
"subsequent" proceedings in the circuit court, we find that the
additional notice is not constitutionally required and is not
jurisdictional. Therefore, so long as Atkins received notice of
the nature of the petition and a summons indicating the time,
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date, and place of the initial hearing, the constitutional and
jurisdictional notice requirements were satisfied.
Because Atkins received notice of the original proceedings,
she had the opportunity, following Weese's appeal, to appear and
be involved in subsequent proceedings, including the de novo
hearings in the circuit court. Although Code § 16.1-263(B) may
require additional notice of "subsequent proceedings" where
necessary to inform the parent or guardian of such proceedings,
failure to give such notice does not divest the court of
jurisdiction, even though the omission may have been reversible
error had the issue been appealed. Accordingly, we find that
the notice Atkins received satisfied due process requirements
for a de novo trial in the circuit court. The failure to give
other statutory notice that may have been required by Code
§ 16.1-263 did not divest the circuit court of jurisdiction and,
accordingly, we are procedurally barred by Rule 1:1 from
addressing it.
B. Plea Agreement
Over a year after the circuit court entered the final
commitment order, Weese unsuccessfully moved the circuit court
to amend the charge against him from aggravated sexual battery
to indecent exposure in compliance with the plea agreement.
Because the circuit court lacked jurisdiction to amend the
charge after Weese had been found guilty of aggravated sexual
battery and committed to the Department of Juvenile Justice, the
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circuit court did not err in denying the motion to amend the
charge.
A trial court's final judgment remains under the control of
the court for twenty-one days after its entry; after twenty-one
days, the trial court loses jurisdiction to suspend, modify, set
aside, or vacate its judgment. See Rule 1:1; Virginia Dept. of
Corrections v. Crowley, 227 Va. 254, 264, 316 S.E.2d 439, 444
(1984) (finding that twenty-one days from the entry of the final
order and after the defendant had been transferred to the
penitentiary, a trial court had no authority to suspend
sentences). Furthermore, a trial court's order purporting to
extend its jurisdiction over a case past the twenty-one days is
ineffectual. See Godfrey v. Williams, 217 Va. 845, 846, 234
S.E.2d 301, 302 (1977).
Here, the defendant asked the trial court, in accordance
with the terms of a plea agreement, to modify or amend the
charge against him more than twenty-one days after the final
judgment and after the defendant had been committed to the
Department of Juvenile Justice. The court's jurisdiction to
amend the charge and dispose of the case on an amended charge
expired twenty-one days from entry of the final judgment order
as provided by Rule 1:1. The Commonwealth and defendant could
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not by agreement extend that time. 1 Furthermore, the fact that
the trial court memorialized the plea agreement in the final
order had no effect on the application of Rule 1:1 and did not
extend the trial court's authority to modify the charge against
Weese. Accordingly, the trial court did not err in denying
Weese's motion to enforce the plea agreement.
Finding no error, we affirm the circuit court's order.
Affirmed.
1
In the trial court, the appellant sought to enforce the
plea agreement; he did not seek alternate relief in the event
the plea agreement was unenforceable. Although the trial court
was procedurally barred by Rule 1:1 from modifying the final
conviction order and thereby enforcing the plea agreement, we do
not address what alternate avenues of relief might be available
to appellant for the Commonwealth's alleged breach of the plea
agreement.
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