COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
JUSTIN WILLIAMS
OPINION BY
v. Record No. 0754-97-2 JUDGE NELSON T. OVERTON
MARCH 17, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
James F. D'Alton, Jr., Judge
Jacqueline Waymack (Butterworth & Waymack, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Justin Williams (defendant) appeals his convictions of one
count of breaking and entering, in violation of Code § 18.2-91,
one count of robbery, in violation of Code § 18.2-58 and one
count of trespassing, in violation of Code § 18.2-119. He
contends the Circuit Court of the City of Hopewell did not have
jurisdiction to convict him because the juvenile and domestic
relations district court (juvenile court) did not properly
transfer him to the circuit court. The transfer was faulty
because defendant's mother was not served with notice of his
juvenile transfer hearing as required by Code § 16.1-263.
Because we agree that the notice requirements for juvenile
transfer hearings were not complied with, we reverse and remand.
I. Facts
Defendant was charged, and later indicted, for three
felonies which occurred on the evenings of June 4 and 15, 1995.
Defendant was seventeen years of age at the time of the offenses.
On October 25, 1995 the Commonwealth, pursuant to Code
§ 16.1-269.1, notified defendant of the Commonwealth's intention
to move the juvenile court to transfer defendant to the circuit
court for trial as an adult. The transfer was eventually set for
hearing on March 20, 1996.
Defendant's many petitions listed three relatives: Sherwood
Disher, defendant's father; Denise Tudor, defendant's mother; and
Jeff Tudor, defendant's stepfather. Mr. Disher's address was
listed as "unknown." Ms. Tudor's residence was listed as
"Dinwiddie County." Mr. Tudor's full address in the City of
Hopewell was given. Mr. Disher was never served nor was service
ever attempted, presumably due to an absence of information as to
his location. Summonses were issued to Mr. Tudor's address in
Hopewell for several hearings in October and December 1995 and
January 1996 but they were all returned with the notation,
"Moved." The record does not indicate that service upon him was
attempted for the March 20 transfer hearing.
On March 7, 1996 a summons was issued to "Denise Tudor, 4015
Lee Blvd., Petersburg, VA." The summons was returned by the City
of Petersburg Sheriff with the notation, "Address not in City,"
and a box with the words, "Not found," checked. Another summons
listing the same address was subsequently issued to the County of
Dinwiddie Sheriff. This summons was received by the sheriff on
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March 20, 1996, at 10:00 a.m., approximately one and one-half
hours after the transfer hearing commenced. The summons was
returned with the inscription, "no service." Strangely,
defendant was served with notice at the same address as his
mother on March 6, 1996. For whatever reason, the sheriff was
able to find the residence one day but unable to do so several
days later.
At the transfer hearing were defendant, his attorney and the
Commonwealth. Neither of defendant's parents was present. The
judge checked off a box on the transfer order indicating "a
transfer hearing was conducted pursuant to proper notice pursuant
to Va. Code §§ 16.1-263 and 16.1-264." He also found that
defendant was "not a proper person to remain in the juvenile
court" and transferred him to the circuit court for the proper
criminal proceedings.
Defendant appealed the transfer, arguing that his mother was
never served with notice of the hearing and, therefore,
jurisdiction over him was not properly in the circuit court. The
circuit court held that defendant's parents need not be actually
notified because "[a]ll the statute requires is . . . the
issuance of a summons." The circuit court subsequently assumed
jurisdiction over defendant. On September 18, 1996 defendant
pled guilty to two felonies and one misdemeanor and was sentenced
by the court.
II. Notice of Transfer Hearing
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We must decide whether Code § 16.1-263 requires more than
the simple issuance of a summons. We believe that if the
pronouncements of this Court and due process are to be honored,
it does.
Code § 16.1-269.1 allows juvenile courts to transfer
jurisdiction to the circuit court over juveniles "charged with an
offense which would be a felony if committed by an adult."
Before such transfer may be completed, a hearing must be held to
determine whether the defendant is amenable to trial in the
juvenile court. Code § 16.1-269.1(A). Notice of the hearing
must be given as prescribed by Code §§ 16.1-263 and 16.1-264.
Code § 16.1-263(A) states that "the court shall direct the
issuance of summonses, one directed to the juvenile . . . and
another to the parents, guardian, legal custodian or other person
standing in loco parentis." Code § 16.1-263(D) excuses lack of
notice if the parent appears at the hearing voluntarily. Code
§ 16.1-263(E) excuses notice if the judge certifies on the record
that the identity of the parent is not reasonably ascertainable.
Neither Code § 16.1-263(D) nor (E) is applicable here because
Ms. Tudor's address was known to the juvenile court, and she did
not appear at the hearing.
Code § 16.1-264(A) states that "[i]f a party designated in
Code § 16.1-263 A to be served with a summons can be found within
the Commonwealth, the summons shall be served upon him in person
or by substituted service as prescribed in § 8.01-296(2)." The
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returned summonses do not reflect that substituted service was
effected or even attempted by the sheriff.
"'Neither man nor child can be allowed to stand condemned by
methods which flout constitutional requirements of due process of
law.'" In re Gault, 387 U.S. 1, 13 (1967) (quoting Haley v.
Ohio, 332 U.S. 596, 601 (1948)). Juveniles have been afforded
many of the same constitutional guarantees as adults. Indeed,
"society's special concern for children" leads us to a more
vigorous examination of proceedings where the young have been
accused of violating the law. See Kent v. United States, 383
U.S. 541, 554 (1966).
The threshold question before us is whether the court's
failure to direct notice to defendant's parent was a procedural
error which did not impact the jurisdiction of the court. See,
e.g., Peyton v. French, 207 Va. 73, 80, 147 S.E.2d 739, 743
(1966) ("a preliminary hearing in the juvenile court was
jurisdictional and not procedural"); Turner v. Commonwealth, 216
Va. 666, 668, 222 S.E.2d 517, 519 (1976) ("the form of notice and
method of giving notice are ordinarily considered matters of
procedural and not substantive due process") (emphasis in
original). If merely procedural, then defective notice could
have been waived or cured later in the proceedings. Id. at 669,
222 S.E.2d at 520. If substantive, then the circuit court did
not have jurisdiction over defendant and his conviction is void.
See Cheeks v. Commonwealth, 20 Va. App. 578, 582-83, 459 S.E.2d
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107, 109 (1995); Jones v. Commonwealth, 220 Va. 666, 672, 261
S.E.2d 538, 672 (1980).
Much of our analysis on that issue has already been
performed by this Court in Karim v. Commonwealth, 22 Va. App.
767, 473 S.E.2d 103 (1996) (en banc). In that case, a juvenile
defendant, Khalid Karim, was transferred from the juvenile court
to the circuit court for trial as an adult. The juvenile court
judge had the names and addresses of Karim's father and
stepmother, who was also Karim's guardian. Yet no notice was
sent informing them of their son's transfer hearing. This Court
sitting en banc unanimously held:
[C]ompliance with the Code sections at issue
here, relating to procedures for instituting
proceedings against juveniles and for
transferring jurisdiction to a circuit court,
are mandatory and jurisdictional. The
failure to strictly follow the notice
procedures contained in the Code denied
appellant a substantive right and the
constitutional guarantee of due process.
Id. at 779, 473 S.E.2d at 108-09. 1
The law on this point is clear: noncompliance with the
mandatory notice requirements of the statute necessitates
reversal of the conviction. See Burfoot v. Commonwealth, 23 Va.
App. 38, 48, 472 S.E.2d 724, 729-30 (1996). In this case, as in
Karim, it is not the method or form of the notice that is
questioned. The form of the summons clearly notified defendant's
1
The Karim court was construing Code § 16.1-269 before it
was repealed and recodified as Code § 16.1-269.1 et. seq. The
provisions relevant to this appeal, however, were unchanged.
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mother of the time and nature of the hearing. Its method of
service was similarly straightforward: delivery by a sheriff
employed by the county. It is the timing and direction of the
notice that raise questions of error in this appeal. Pursuant to
the previous holdings of this Court and the Supreme Court of
Virginia, we must examine the facts to determine whether the
"issuance" of the summons in this case abridged defendant's
substantive due process rights.
The factual differences between Karim and the instant matter
are slight. In Karim, notice was not sent to defendant's parent
or guardian even though the juvenile judge had the names and
addresses of those parties. In the instant matter, the summons
was sent. However, it was first sent to a jurisdiction where the
defendant's mother did not live. It was later re-issued only
days before the hearing and did not arrive until after the
hearing had commenced.
According to the trial court, "issuance" of the summons in
whatever direction or to whatever jurisdiction the issuer chooses
is sufficient to satisfy the statute, regardless of the
likelihood of receipt. Surely we must require more. To hold
that notice was properly given when the juvenile court, with
knowledge of the proper residence of the intended recipient,
dispatched the summons to a different jurisdiction does not
comport with our duty to ensure "the procedural regularity and
the exercise of care implied in the phrase 'due process.'" In re
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Gault, 387 U.S. at 27-28. See also Jones, 220 Va. at 670, 261
S.E.2d at 540 (finding that the juvenile criminal statutes evince
the intent to hold the "the welfare of the child . . .
paramount").
III. Conclusion
We hold that when the juvenile court has the address of a
party named in Code § 16.1-263 and it issues a summons to a
different jurisdiction or does so at a time which makes timely
arrival impossible, the notice requirements of Code § 16.1-269.1
have not been satisfied. When, as here, the notice of the
transfer hearing was not properly issued, the transfer of
jurisdiction was ineffectual and the subsequent convictions are
void. We, therefore, reverse defendant's convictions and remand
to the circuit court with instructions to remand to the juvenile
and domestic relations district court to take further action if
the Commonwealth be so advised.
Reversed and remanded.
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