COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Senior Judge Cole
Argued at Richmond, Virginia
EUGENE ARTHUR PORTER, JR.
v. Record No. 0757-95-2 OPINION
BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA MAY 28, 1996
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
W. Park Lemmond, Jr., Judge
Reginald M. Barley for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Eugene Arthur Porter, Jr. (appellant) appeals from his bench
trial first degree murder conviction by the Circuit Court of the
City of Hopewell (trial court). Appellant contends that the
trial court lacked jurisdiction over him because in a transfer
hearing held in the Juvenile and Domestic Relations District
Court (J&D court) the detention order recited that:
The Court finds that the evidence presented
at the transfer hearing was insufficient to
establish probable cause to believe that the
juvenile committed the alleged delinquent
act, and therefore the case is retained in
1
this Court for trial at a later date.
For the reasons that follow, we affirm.
1
The order further directed that appellant "be detained in an
appropriate secure juvenile detention facility."
The record discloses the following procedures and findings:
On December 15, 1993, a petition was issued in the J&D court
against appellant, then seventeen years old, charging him with
murder.
On December 17, 1993, pursuant to Code § 16.1-269 (since
repealed), the Commonwealth moved to transfer the case to the
circuit court for trial of appellant as an adult. A transfer
hearing was held in the J&D court on February 4, 1994. That
court denied the Commonwealth's motion, finding that "the
evidence presented at the transfer hearing was insufficient to
establish probable cause to believe that the juvenile committed
the alleged delinquent act, and therefore, the case is retained
in this Court for trial at a later date." On February 25, 1994,
the Commonwealth, pursuant to former Code § 16.1-269(E), filed a
notice of removal in the circuit court.
On April 13, 1994, appellant filed a motion to dismiss in
response to the Commonwealth's notice of removal, claiming that
the circuit court lacked jurisdiction (1) "to review the issue of
transfer since no decision on such issue was made by [the J&D
court]" and (2) "to determine the issue of probable cause since
such determination lies within the exclusive original
jurisdiction of the appropriate [J&D] court." After a hearing on
the Commonwealth's motion to remove the case and upon appellant's
motion to dismiss the proceedings, the circuit court held that
the requirements of former Code § 16.1-269(E) had been satisfied
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and authorized the Commonwealth to seek an indictment against
appellant.
On April 20, 1994, appellant was indicted for murder.
On July 29, 1994, appellant filed an application for a writ
of prohibition with this Court alleging that the circuit court
lacked jurisdiction to permit the Commonwealth to seek an
indictment because the J&D court had failed to find probable
cause. This Court denied the application, stating that "the
relief sought [was] not cognizable for review by a petition for
writ of prohibition."
On November 9, 1994, appellant was tried and convicted.
The issue appellant raises on appeal is not entirely
consistent with the finding of the J&D court. The hearing held
in that court was a transfer hearing, not a preliminary hearing
to determine probable cause of guilt. Former Code § 16.1-269
provided a vehicle by which the J&D court may hold a hearing for
the sole purpose of determining whether a juvenile charged with a
crime should be retained in the J&D court for trial or
transferred to the circuit court for criminal proceedings as if
the juvenile were an adult. That vehicle was appropriately
referred to as a "transfer hearing," and the finding made there
did not determine guilt or innocence, only whether the case
should be transferred to the circuit court or retained in the J&D
court for trial.
When the J&D court denied the motion to transfer and ordered
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that the juvenile's case be retained in that court, subsection
(E) of former Code § 16.1-269 provided the Commonwealth with a
method of review by the circuit court of the J&D court's
decision. That subsection provided that in such cases, when the
attorney for the Commonwealth "deems it to be in the public
interest," the Commonwealth may seek a removal of the case to the
proper circuit court. After notice as provided in former Code
§ 16.1-269(E), the circuit court must then
within a reasonable period of time after
receipt of the case from the juvenile court,
(i) examine all such papers, reports and
orders and (ii) conduct a hearing to take
further evidence on the issue of transfer, to
determine if there has been compliance with
this section, but without redetermining
whether the juvenile court had sufficient
evidence to find probable cause, and enter an
order either remanding the case to the
juvenile court or advising the attorney for
the Commonwealth that he may seek an
indictment.
The record before us discloses that the transfer hearing and
review thereof were conducted in accordance with the requirements
of former Code § 16.1-269.
The issue as stated by appellant fails to recognize that the
hearing in the J&D court was for the purpose of determining
whether a transfer of the case should be made. The J&D court
ruled that the case should be retained. While the J&D court
cited a lack of "probable cause" as the basis for denying the
Commonwealth's motion to transfer appellant's case, the record
makes clear that the J&D court concluded that the Commonwealth
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had failed to demonstrate probable cause or cause to justify a
transfer under former Code § 16.1-269. If the J&D court had, in
fact, found probable cause lacking against appellant, it would
not have retained the case for trial at a later date; rather, it
would have dismissed the charge against appellant outright. On
the issue whether proper procedure was followed in transferring
the case to the circuit court, it is clear that no constitutional
or statutory right has been abridged. Appellant was accorded all
rights and protections required by law.
For the reasons stated, the judgment of the trial court is
affirmed.
Affirmed.
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