Williams v. Commonwealth

                  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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