COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
WILLIAM DAMOND CHEEKS
v. Record No. 0983-94-2 OPINION BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA JULY 25, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Bradford F. Johnson (Johnson & Walker, on
brief), for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief) for appellee.
William Damond Cheeks was convicted of malicious wounding
and use of a firearm in the commission of a felony. On appeal,
he contends that the trial court violated Code § 16.1-269 when it
conducted a review of the juvenile court transfer hearing on
October 27, 1993, without giving him any notice or opportunity to
be heard and that such violation requires a remand to the
juvenile court. We agree that the hearing without notice
violated Cheeks' due process rights and remand the case to the
circuit court. We do not agree with Cheeks' contention that the
case must be remanded to the juvenile court.
Cheeks, a seventeen year old juvenile, was charged in the
Richmond Juvenile and Domestic Relations Court (juvenile court)
with maliciously wounding Walter Booker on September 13, 1993,
and using a firearm in the commission of a felony. On October 5,
1993, he and his attorney appeared before the juvenile court for
a transfer hearing pursuant to Code § 16.1-269(E). After the
presentation of evidence, the juvenile court entered an order
transferring both cases to the Richmond Circuit Court for trial
of the appellant as an adult. Cheeks appealed the transfer
decision, and the juvenile court's file was delivered to the
circuit court for review pursuant to Code § 16.1-269(E).
The transfer appeal review appeared on the circuit court's
docket on October 27, 1993. Neither Cheeks nor his attorney
appeared. The assistant Commonwealth's attorney assigned to the
case advised the court that she had scheduled the hearing but had
not notified the appellant or his attorney. She thought that the
court was required to review the juvenile court's decision within
twenty-one days from the receipt of the file or the cases would
be remanded to the juvenile court. 1 She was not aware of the
change in the statute that occurred on July 1, 1993, providing
that the circuit court had a reasonable amount of time to decide
the transfer appeal. The court, nonetheless, proceeded to hear
the case. During the October 27, 1993 ex parte hearing, the
court examined the papers, reports, and orders from the juvenile
court, upheld the transfer of the cases, and granted permission
for the Commonwealth's attorney to seek indictments at the next
1
Prior to July 1, 1993, Code § 16.1-269(E) provided that
"[t]he circuit court shall, within twenty-one days after receipt
of the case from the juvenile court, and after examination of all
such papers, reports and orders, enter an order either remanding
the case to the juvenile court or advising the Commonwealth's
attorney that he may seek an indictment."
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grand jury meeting, which was scheduled to be held on November 8,
1993.
Cheeks contends that failure to provide him with notice of
the October 27, 1993, hearing violated his due process rights,
and, despite being provided subsequent opportunities to present
evidence, his convictions must be reversed because he was not
provided a transfer review hearing in the circuit court. The
Commonwealth admits that Cheeks was entitled to notice of the
transfer review hearing, but it argues that this error was cured
because the circuit court on two occasions afforded Cheeks an
opportunity to present any evidence he wished to tender. Cheeks
refused, claiming that the error was irremediable and that he was
entitled to a reversal or a remand to the juvenile court.
In Harris v. Deal, 189 Va. 675, 686-87, 54 S.E.2d 161, 166
(1949), the Supreme Court stated that
[n]o judicial proceeding can deprive a man of
his property without giving him an
opportunity to be heard in accordance with
the provisions of the law, and if a judgment
is rendered against him without such
opportunity to be heard, it is absolutely
void. A void judgment is in legal effect no
judgment. By it no rights are obtained.
See also Matthews v. Commonwealth, 216 Va. 358, 359, 218 S.E.2d
538, 540 (1975) (holding that "'"it is well settled that a void
decree or order is a nullity and may on proper application be
vacated at any time."'") (citation omitted). Applying this
principle, we find that the order of October 27, 1993, entered in
the circuit court is void for lack of notice to the appellant.
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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."
Jamborsky v. Baskins, 247 Va. 506, 509, 442 S.E.2d 636, 637
(1994). 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 in others.'" Ladd v. Lamb, 195 Va. 1031, 1035, 81
S.E.2d 756, 759 (1954) (citation omitted). See also Jamborsky,
247 Va. at 511, 442 S.E.2d at 638 (holding that the twenty-one
day period in the transfer statute under former Code
§ 16.1-269(E) is directory and procedural and not mandatory and
jurisdictional). However, the denial of a transfer hearing and
the opportunity to present evidence deprived the accused of a
substantive right and the constitutional guarantee of due
process. Id. at 509, 442 S.E.2d at 637.
The procedure for a transfer appeal review in the circuit
court is set forth in Code § 16.1-269(E) and provides, in
pertinent part:
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If the court, after a hearing on whether the
transfer should be made or whether jurisdiction
should be retained, . . . transfers the case, the
juvenile may, within ten days of such decision,
note an appeal of the decision to transfer to the
circuit court . . . . Within three days after
receipt of . . . such notice, the judge of the
juvenile court shall forward to the circuit court
all papers connected with the case, including the
report required by this section, as well as a
written order setting forth the reasons for the
juvenile court's opinion. The circuit court
shall, 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. If
the grand jury returns a true bill upon such
indictment the jurisdiction of the juvenile court
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as to such case shall terminate. The judge of the
circuit court who reviewed the case after receipt
from the juvenile court shall not over the
objection of an interested party preside over the
trial of such charge or charges.
In addition to his statutory right to a transfer hearing,
the appellant is entitled to certain constitutional due process
rights. These are spelled out in Kent v. United States, 383 U.S.
541 (1966). In Kent, the petitioner attacked the waiver
(transfer) of jurisdiction on a number of statutory and
constitutional grounds. He contended that the waiver was
defective because no hearing was held, no findings were made in
the juvenile court, no reasons were stated for the waiver by the
juvenile court, and counsel was denied access to the social
service file. After discussing the importance of the waiver
procedure to the juvenile and referring to it as "critically
important," the Supreme Court held:
The net, therefore, is that petitioner--then
a boy of 16--was by statute entitled to certain
procedures and benefits as a consequence of his
statutory right to the "exclusive" jurisdiction of
the Juvenile Court. In these circumstances,
considering particularly that decision as to
waiver of jurisdiction and transfer of the matter
to the District Court was potentially as important
to petitioner as the difference between five
years' confinement and a death sentence, we
conclude that, as a condition to a valid waiver
order, petitioner was entitled to a hearing,
including access by his counsel to the social
records and probation or similar reports which
presumably are considered by the court, and to a
statement of reasons for the Juvenile Court's
decision. We believe that this result is required
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by the statute read in the context of
constitutional principles relating to due process
and the assistance of counsel.
Id. at 557 (footnote omitted).
We find that compliance with the substantive provisions of
Code § 16.1-296(E) is mandatory and jurisdictional and,
therefore, cannot be waived by a juvenile. This case is clearly
distinguishable from the twenty-one day rule at issue in
Jamborsky.
On November 8, 1993, the grand jury indicted Cheeks for
malicious wounding and use of a firearm in the commission of a
felony. On November 12, 1993, Cheeks filed a motion to quash the
indictments and to remand the cases to the juvenile court for
final adjudication because he was not present or represented by
counsel at the October 27, 1993, transfer appeal hearing. A
hearing on the motion to quash was held on November 16, 1993.
The circuit court judge refused to quash the indictments but
offered Cheeks an opportunity to present evidence regarding the
transfer proceeding in the juvenile court. Cheeks declined to
put on any evidence. Instead, he asserted that he had a right to
a de novo hearing in the circuit court, that under the provisions
of the fourteenth amendment he had a right to be notified of the
transfer hearing on October 27, 1993, and that he had a right to
be heard and to present evidence at the hearing. He further
argued that once the grand jury indicted him on the charges, the
only remedy available to him was to quash the indictments because
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the circuit court could not thereafter remand the cases to the
juvenile court. The trial court refused to quash the
indictments.
In the court's order, entered following the hearing, no
recitation was made that a transfer review hearing was held. The
order denied the motion to quash the indictments and granted the
appellant's motion for a psychiatric examination. The order
neither indicated that the trial judge had examined all the
papers, reports and orders from the juvenile court, nor stated
that the court conducted a hearing to take further evidence on
the transfer issue. The order did not remand the cases to the
juvenile court or advise the attorney for the Commonwealth that
he could seek an indictment on the charges. We hold that this
hearing did not constitute a transfer appeal review in compliance
with Code § 16.1-269(E) and the constitutional requirements of
due process.
On March 17, 1994, the two criminal cases were scheduled for
trial before another circuit court judge pursuant to the
provisions of the statute. Defense counsel represented to the
court that he and the Commonwealth's attorney had agreed to a
special plea of guilty pursuant to Code § 19.2-254, leaving open
only "the issue of the transfer hearing." Upon ascertaining that
no de novo transfer review had taken place, the trial judge
offered to conduct a hearing at that stage of the proceedings and
to determine whether the cases should have been in the circuit
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court or whether appellant should be reindicted. The appellant
declined these offers, contending that the indictments had to be
quashed. Instead, he insisted that the court proceed upon the
conditional guilty pleas. Accordingly, appellant was adjudged
guilty and, on April 28, 1994, the court imposed sentences upon
the appellant.
We hold that the circuit court did not conduct a transfer
appeal review as contemplated by statute, but instead held a
trial on the merits of the case. The order that was entered
following the trial did not recite that a transfer hearing had
been held nor did it indicate that the judge had examined all the
papers, reports and orders from the juvenile court. Also, the
order did not indicate that the court had conducted a hearing to
take further evidence on the issue of transfer. The order did
not remand the cases or advise the attorney for the Commonwealth
that he could seek indictments.
Because the circuit court failed to grant the appellant a
transfer appeal review in compliance with Code § 16.1-269(E) and
the constitutional requirements set forth in Kent, we vacate
appellant's convictions for malicious wounding and use of a
firearm in the commission of a felony and remand the cases to the
circuit court with directions to provide a transfer appeal
hearing in accordance with law. If the circuit court determines
that the appellant should be tried as an adult, it shall enter an
order containing appropriate and proper findings and advising the
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Commonwealth's attorney that he may seek new indictments on the
charges. If the circuit court determines that the appellant
should be tried as a juvenile, it shall enter an order containing
appropriate and proper findings and remand the cases to the
juvenile court for further proceedings as a juvenile.
Vacated and remanded.
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