Karim v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton, Coleman, Willis,
Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia

KHALID KARIM, S/K/A
KHALID Y. KARIM
OPINION BY
v. Record No. 1711-94-4 JUDGE ROSEMARIE ANNUNZIATA
JULY 30, 1996
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC
Michael J. Cassidy for appellant.

John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on briefs), for appellee.

By opinion issued February 13, 1996, a panel of this Court

vacated Khalid Karim's convictions for murder and abduction and

remanded the case for further proceedings on the ground that the

statutory notice requirements concerning the initiation of

proceedings against juveniles had not been met. Karim v.
Commonwealth, 21 Va. App. 652, 466 S.E.2d 772 (1996). A

rehearing en banc was granted to determine whether the notice

requirements were met and whether the alleged failure to meet the

requirements created a jurisdictional defect, requiring vacation

of the convictions. 1 We conclude the proceedings against Karim

were improperly initiated and, therefore, the juvenile court

lacked jurisdiction over the matter. Because the juvenile court

1
The remaining issues resolved by the panel opinion
were not reheard en banc.
lacked jurisdiction to transfer the case to the circuit court,

the circuit court did not acquire jurisdiction to hear the case.

Accordingly, the order of conviction is vacated and the case is

remanded.

BACKGROUND

Karim was arrested and charged with multiple offenses

relating to a July 31, 1993 shooting incident in which one youth

was killed and two others were wounded. On August 5, 1993,

Investigator Edward R. Guckenberger filed a petition with the

juvenile court asking that Karim, a juvenile, "and the persons

having his or her custody and control be summoned to appear

before" the juvenile court judge. Guckenberger listed a specific

Alexandria address for Karim as well as a phone number. In the

space for the parents' names and addresses, Guckenberger wrote

"Unknown to Petitioner."
The juvenile court appointed Marlene Hahn as Karim's

guardian ad litem. A summons was personally served on Karim on

August 6, 1993. A copy of the petition was attached to the

summons.

The juvenile court record contains an August 6, 1993 order

appointing two attorneys (Cassidy and Adams) to represent Karim.

The juvenile record also contains a document entitled, "Record

of Proceedings." It is signed by the juvenile judge and is dated

August 6, 1993. The document indicates "[t]hat Probable Cause to

detain is Found," and the court ordered that Karim be held at

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Landmark Detention Center.

On September 22, 1993, the Commonwealth's Attorney filed a

notice of intent to certify Karim for trial as an adult. On

October 7, 1993, the juvenile court conducted a hearing "to

determine whether or not there is probable cause to believe that

an offense had occurred." The record contains Karim's motion to

dismiss that was filed on October 7, 1993. In that motion, he

asserted that the juvenile court failed to follow the notice

requirements of Code § 16.1-263.
The following dialogue took place at the October 7, 1993

hearing:
THE COURT: I just wanted to raise something.
When I was going through the pleadings, I
couldn't find the notice of the certification
-- and I did find that. That's why -- mainly
why I had the recess.
And secondly, Mr. Karim, I normally
always ask before the hearing -- I think this
is the first time I've never asked in all
these years -- whether you had a parent here.
I don't think you have a parent here.

FONTE (PROBATION OFFICER): Is your stepmom
here?

KARIM (Karim): I have a stepmom, but she's
not here though.

THE COURT: Your dad is living in the
District of Columbia?

KARIM: Silver Spring.

THE COURT: Silver Spring, Maryland?

KARIM: Yes, sir.

THE COURT: What is your dad's name?

KARIM: Syed Karim.

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 THE COURT: Syed Karim?

KARIM: (Nodding head).

THE COURT: Do you have any way we could
contact him?

KARIM: Yes, sir. His work number.

THE COURT: Could you give that to Mr. Fonte?

KARIM: (Number given).

THE COURT: Okay. And is he aware of this
proceeding?
KARIM: He knows that I went to court last
week. He visited me at the Detention Home,
and I told him I was going to court someday
this week but I wasn't sure what the date
was.

THE COURT: Okay. And he just decided not to
come or --

KARIM: He didn't know when the exact date
was.

The hearing further revealed that Karim's mother lived in

Chicago. However, Karim advised the court that he thought his

stepmother, Delta Karim, had legal custody of him. She lived in

Alexandria, Virginia, and her address and phone number were known

to the probation officer.

At the conclusion of the hearing, the Court made the

following finding:
THE COURT: All right -- I'm going to go
ahead and deny Mr. Cassidy's motion to
strike, and I will make a finding, for
probable cause purposes, that the two
delinquent acts did occur.
And I'll make a finding that the
requirements of 16.1-269a, section 1, 2 and

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 3a have been met. 2 And I'm going to continue
the case for a transfer report and transfer
hearing pursuant to section C of 16.1-269.

After ordering the transfer study, the court scheduled the

next hearing for December 2, 1993. On November 12, 1993, Sean

Coleman was appointed as Karim's guardian ad litem.

On November 30, 1993, Probation Officer Frank A. Fonte typed

and filed a transfer study/report with the juvenile court. The

front sheet of the report contained the following information:
2
Code § 16.1-269(A) deals with the juvenile court's
decision whether to retain jurisdiction or transfer jurisdiction
to a circuit court so the juvenile can be tried as an adult. The
portion of the statute cited by the juvenile judge provides:

If a child fifteen years of age or older
is charged with an offense which, if
committed by an adult, could be punishable by
confinement in a state correctional facility,
the court shall on motion of the attorney for
the Commonwealth and prior to a hearing on
the merits, hold a transfer hearing and may
retain jurisdiction or transfer such child
for proper criminal proceedings to the
appropriate circuit court having criminal
jurisdiction of such offenses if committed by
an adult. Any transfer to the appropriate
circuit court shall be subject to the
following conditions:
1. The child was fifteen or more years
of age at the time of the alleged commission
of the offense.
2. Notice as prescribed in §§ 16.1-263
and 16.1-264 shall be given to the child and
his parent, guardian, legal custodian or
other person standing in loco parentis or
attorney.
3. The court finds:

a. There is probable cause to believe
that the child committed the delinquent act
. . . which would be a felony if committed
by an adult[.]

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 FATHER: Syeed Kharim, (street address listed)
MOTHER: Anita Kharim, Chicago, Illinois
GUARDIAN: Delta Kharim
ADDRESS: (street address listed)

The record does not contain a transcript of the December 2,

1993 transfer hearing. After the hearing, at which Karim's

attorney and guardian ad litem were present, the juvenile judge

entered a transfer order. The judge checked boxes for the

following statements on the preprinted order:
The Court finds from the evidence presented
that there is probable cause to believe the
juvenile committed the delinquent act
alleged.
That the child was fifteen or more years of
age at the time of the alleged commission of
the offense; the child is competent to stand
trial; and the interests of the community
require that the child be placed under legal
restraint or discipline.
the child is charged with an
offense (murder, rape, robbery) for
which amenability to treatment or
rehabilitation as a juvenile is not
a factor in this proceeding.

The Court
TRANSFERS and so certifies the child for
proper criminal proceedings to the
Circuit Court.

On December 20, 1993, the grand jury indicted Karim. On

January 28, 1994, Karim filed notice that he intended to argue a

number of pretrial motions, including a motion to dismiss the

indictment. On February 4, 1994, Karim argued his motion to

dismiss. He alleged that the juvenile court never acquired

jurisdiction because neither of his parents received proper

notice. The trial court denied this motion.

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 JURISDICTION AND TRANSFER

Code § 16.1-263, governing the institution of proceedings

against a juvenile, provides in pertinent part as follows:
A. After 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, 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. The summons shall require them
to appear personally before the court at the
time fixed to answer or testify as to the
allegations of the petition. Where the
custodian is summoned and such person is not
the parent of the child in question, the
parent shall also be served with a summons.
The court may direct that other proper or
necessary parties to the proceedings be
notified of the pendency of the case, the
charge and the time and place for the
hearing.
B. The summons shall advise the parties of
their right to counsel as provided in
§ 16.1-266. A copy of the petition shall
accompany each summons for the initial
proceedings. Notice of subsequent
proceedings shall be provided to all parties
in interest. In all cases where a party is
represented by counsel and counsel has been
provided with a copy of the petition and due
notice as to time, date and place of the
hearing, such action shall be deemed due
notice to such party, unless such counsel has
notified the court that he no longer
represents such party.

* * * * * * *

E. No such summons or notification shall be
required if the judge shall certify on the
record that the identity of a parent or

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 guardian is not reasonably ascertainable. An
affidavit of the mother that the identity of
the father is not reasonably ascertainable
shall be sufficient evidence of this fact,
provided there is no other evidence before
the court which would refute such an
affidavit.

"If a party designated in § 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." Code § 16.1-264. Service on one

parent is sufficient in cases of delinquency. Id.
If a party designated to be served in
§ 16.1-263 is within the Commonwealth and
cannot be found, but his address is known or
can with reasonable diligence be ascertained,
the summons may be served upon him by mailing
a copy thereof by certified mail return
receipt requested. If he is without the
Commonwealth but can be found or his address
is known, or can with reasonable diligence be
ascertained, service of summons may be made
either by delivering a copy thereof to him
personally or by mailing a copy thereof to
him by certified mail return receipt
requested.

Id.
An important consideration in
interpreting the meaning of a statute is
whether it is mandatory and jurisdictional or
directory and procedural. When asked to
decide whether various provisions relating to
juvenile transfer proceedings are
jurisdictional in nature, the Supreme Court
has analyzed the provisions "to determine
whether they impart a substantive right to
the juvenile or merely impose a procedural
requirement." A mandatory provision in a
statute is one that connotes a command and
the omission of "'which renders the
proceeding to which it relates illegal and
void, while a directory provision is one the
observance of which is not necessary to the
validity of the proceeding; and a statute may
be mandatory in some respects, and directory

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 in others.'"

Cheeks v. Commonwealth, 20 Va. App. 578, 582-83, 459 S.E.2d 107,

109 (1995) (citations omitted) (holding that failure to give

notice denied appellant substantive right to meaningful transfer

appeal hearing at which he could present further evidence on

issue of transfer; also finding constitutional due process

violation).

"It is clear beyond dispute that the waiver of jurisdiction

[by a juvenile court] is a 'critically important' action

determining vitally important statutory rights of the juvenile."
Kent v. United States, 383 U.S. 541, 556 (1966) (holding that

the "critically important" decision to try juvenile as adult

entitles juvenile to certain procedures and benefits as a

consequence of his statutory right to the "exclusive"

jurisdiction of the juvenile court).
Notice, to comply with due process
requirements, must be given sufficiently in
advance of scheduled court proceedings so
that reasonable opportunity to prepare will
be afforded, and it must "set forth the
alleged misconduct with particularity." . . .
Due process of law requires notice of the
sort we have described -- that is, notice
which would be deemed constitutionally
adequate in a civil or criminal proceeding.
It 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 them timely notice, in advance of the
hearing, of the specific issues that they
must meet.

In re Gault, 387 U.S. 1, 33-34 (1967) (footnote omitted).

The provisions in the Code specifying parents of a juvenile

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as proper and necessary parties who must receive notice are

mandatory. See Peyton v. French, 207 Va. 73, 79, 147 S.E.2d 739,

743 (1966) (construing former Code §§ 16.1-166, 16.1-167, and

16.1-172). In French, petitions were filed against a juvenile

defendant, and the juvenile judge transferred the case to the

circuit court for the defendant to be tried as an adult. The

defendant's parents did not receive notice and were not present

at the transfer hearing; a guardian ad litem had not been

appointed. The Supreme Court of Virginia stated:
Since the [juvenile] court did not follow the
mandatory requirements of Code §§ 16.1-166,
16.1-167, 16.1-172, 16.1-173 and 16.1-174,
supra, the petitioner was not afforded a
proper hearing under the Juvenile and
Domestic Relations Court Law before being
sent on to the circuit court to be indicted
and tried as an adult.

Id. at 77, 147 S.E.2d at 742. The Court held that the circuit

court's order of conviction was void because the juvenile court

failed to give "notice to all proper and necessary parties." Id.

The Court refused to adopt the Commonwealth's contention "that

the statutes relating to proceedings in juvenile courts are

procedural and not jurisdictional." Id.
Code § 16.1-158 gives the juvenile court
exclusive original jurisdiction over the
offenses alleged to have been committed by
the petitioner, and the clear purpose and
intent of the Juvenile and Domestic Relations
Court Law cannot be achieved if it is not
mandatory that the proceedings set forth in
§§ 16.1-164, 16.1-166, 16.1-167, 16.1-172,
16.1-173 and 16.1-176(a) be complied with.
Indeed, the very language of the statutes
makes it mandatory that the aforesaid
mentioned statutes be followed before

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 criminal jurisdiction in a proper court of
record comes into being.

Id. at 79, 147 S.E.2d at 743.

In Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775

(1972), the defendant collaterally attacked a past conviction

that was rendered when he was a juvenile, twenty-two years

earlier. Although Jones "conceded the 'possibility' that the

juvenile court [might] have appointed a lawyer for him" at the

juvenile proceeding, at the hearing to attack the conviction,

Jones testified "that his parents were not present and that a

guardian ad litem was not appointed for him." Id. at 426-27, 192

S.E.2d at 777. The applicable juvenile statute at the time of

the original prosecution was Code § 63-273 (1948); that Code

section used language substantially similar to former Code

§ 16.1-172, found by the French Court to be mandatory. In

reversing the conviction, the Court explained:
[T]he official records of the court are
completely silent as to any notification of
the parents, certification by the judge as to
such notification, the presence of the
parents at the trial, the appointment of a
probation officer or guardian ad litem to
represent defendant, and the presence of
either of the latter two at the trial.

Jones, 213 Va. at 427, 192 S.E.2d at 777.

The Court noted that, although "significant changes in

philosophy regarding juvenile proceedings have taken place since"

the defendant's original trial, "the requirement that the parents

of an infant defendant charged with a crime have notification of

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the time and place of his trial and an opportunity to be present

has remained constant." Id. at 427-28, 192 S.E.2d at 777.

In Turner v. Commonwealth, 216 Va. 666, 222 S.E.2d 517

(1976), after a juvenile petition was filed, the juvenile

defendant and the defendant's father appeared before the juvenile

court for a detention hearing on October 7, 1974. On October 8,

1974, the juvenile judge appointed an attorney for the juvenile

defendant, who was "'notified of [the transfer] hearing date.'

The record fail[ed] to show, however, that any written notice of
the time, place, and purpose of the October 24 [transfer] hearing

was given the defendant, his parents, or his attorney." Id. at

667, 222 S.E.2d at 518. Turner, his attorney, and his parents

were present at the transfer hearing.

Turner argued that "the circuit court lacked jurisdiction to

try him because notice in writing of the transfer hearing was not

given him, his parents, or his attorney." The Court noted that

"the form of notice and the method of giving notice are

ordinarily considered matters of procedural and not substantive

due process." Id. at 668, 222 S.E.2d at 519. Because the form

of the notice was procedural rather than jurisdictional, and

because the parents were present at the hearing, the Court held

that "any departure from" the requirement of written notice could

"be cured or waived by the appearance of proper and necessary

parties." Id. (emphasis added). Turner, however, is

distinguishable from the present case because neither Karim's

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parents nor legal guardian were given proper notice or were

present at the hearing.

The record clearly shows that at the initiation of the

proceedings on October 7, 1993, the juvenile judge knew Karim's

father's Maryland address and knew that the father had recently

visited his son in jail. The juvenile judge had evidence that

Karim's stepmother was his guardian and knew her Virginia

address. Despite having this information, the juvenile judge

failed to give notice to the father or stepmother, but instead

determined probable cause and ordered a transfer report.
The transfer order entered by the juvenile judge on December

2, 1993, declared that the hearing "was conducted pursuant to

proper notice pursuant to Va. Code §§ 16.1-263 and 16.1-264 to

the juvenile, the juvenile's parents, guardian, legal custodian

or other person standing in loco parentis or attorney." However,

the record fails to establish that the juvenile proceedings

against Karim were properly initiated such that the court had

jurisdiction to proceed with the October 7, 1993 probable cause

hearing.

The record does not show that Karim's parents or legal

guardian were present on October 7, 1993 or that the juvenile

judge redetermined probable cause on any subsequent date.

Instead, the record shows that, on December 2, 1993, the juvenile

judge merely continued where he left off after the October 7,

1993 proceeding in which he found probable cause. On December 2,

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1993, the court used the earlier-requested transfer report, found

Karim to be nonamenable to treatment as a juvenile, and

transferred jurisdiction to the circuit court. Therefore, the

avowal in the December 2, 1993 order that proper notice had been

given was belied by the absence of evidence that the juvenile

judge attempted to excuse or correct the earlier failure to give

proper notice prior to finding probable cause and transferring to

the circuit court.
Based on French, Jones, and Cheeks, we find that compliance

with the Code sections at issue here, relating to procedures for

instituting proceedings against juveniles, are mandatory and

jurisdictional. The failure to strictly follow the notice

procedures contained in the Code denied Karim a substantive right

and the constitutional guarantee of due process. 3

The record failed to establish that Karim's parents or

guardian, who were proper and necessary parties, were properly

given notice. The juvenile judge did not certify on the record

that the identity of a parent or guardian was not reasonably

ascertainable. Therefore, the juvenile court did not acquire

jurisdiction. Because it did not possess jurisdiction, the

juvenile court lacked authority to transfer the case to the

circuit court, and, consequently, the circuit court lacked

3
We disagree with the Commonwealth's contention that the
cases stand for the proposition that a juvenile's representation
by a guardian ad litem effectively cures non-compliance with Code
§ 16.1-263.

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jurisdiction to try Karim as an adult. See State v. Taylor, 498

N.E.2d 211 (Ohio Ct. App. 1985) (reversing and remanding adult

conviction where failure to give notice to parent of juvenile

proceeding resulted in due process violation; appellate court

held that juvenile court was without jurisdiction to effect

transfer of jurisdiction to adult trial court).

Because the circuit court had no jurisdiction, we vacate the

order of conviction and remand the case to the circuit court with

instructions to remand the case to the juvenile court for further

proceedings against Karim as are appropriate and consistent with
4
this opinion, if the Commonwealth be so advised.
Vacated and remanded.

4
We do not hold that notice for the transfer hearing was
improperly given. Notwithstanding the provision of proper
statutory notice for the transfer hearing, the juvenile and
domestic relations court's failure to initiate proceedings upon
proper notice in accordance with Code § 16.1-263 deprived it of
jurisdiction and the attendant power to transfer the case to the
circuit court.

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