Asby v. Commonwealth

ELDER, Judge.

Via a motion to set aside the judgment, Paul Trevor Asby (appellant) challenges his 1996 convictions for murder, malicious wounding, and use of a firearm in the commission of both murder and malicious wounding. Appellant contends the circuit court lacked jurisdiction to convict him because he was a *219juvenile at the time of the alleged offenses and the record failed to establish that his father received notice of institution of the juvenile proceedings which resulted in his transfer to circuit court for trial as an adult. We hold, pursuant to the Supreme Court’s recent ruling in Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 (2000), that appellant’s conviction as an adult on January 29, 1996, for the unrelated offense of attempted grand larceny, committed while he was a juvenile, divested the juvenile and domestic relations district court (J & DR court) of jurisdiction over the subject offenses, which were then pending in the J & DR court. Thus, appellant no longer had a right to any proceedings in the J & DR court on those offenses, and the purported lack of notice to his father of the initiation of the juvenile proceedings did not invalidate the indictments for the subject offenses, which were subsequently issued in the circuit court. For these reasons, we affirm the circuit court’s denial of appellant’s motion to set aside the judgment without addressing the Commonwealth’s other arguments.

I.

BACKGROUND

Appellant was born on September 18, 1977. On August 28, 1994, when appellant was sixteen years old, he committed the murder, malicious wounding and firearm offenses at issue here. On January 5, 1996, when appellant was eighteen years old, the Commonwealth obtained juvenile petitions charging him with these four offenses. At the time of appellant’s February 27, 1996 transfer hearing for these offenses, appellant had outstanding charges for unrelated juvenile offenses— attempted grand larceny and possession of burglary tools. On November 18, 1995, these charges were “transfer[red] to circuit court for trial as an adult.” The Commonwealth’s attorney represented that, as of February 27, 1996, appellant had pleaded guilty at least to the attempted grand larceny charge and that he was then awaiting sentencing on that charge in the circuit court. The subsequently filed presen*220tence report indicated that appellant was convicted in circuit court for both the larceny and burglary tools offenses on January 29, 1996, and sentenced for these offenses on March 20, 1996.1 Appellant’s counsel posed no objections in the trial court to the Commonwealth’s oral and written representations regarding these unrelated offenses.

After hearing the Commonwealth’s evidence on the murder, malicious wounding and firearms charges allegedly committed on August 28, 1994, the J & DR court found probable cause and certified the four offenses for further proceedings in circuit court. Indictments were issued on April 3, 1996, and appellant was tried, convicted and sentenced for those offenses.

In late 1999, appellant filed the present motion to set aside judgment on the subject offenses based on lack of notice to his father pursuant to Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), aff'g, 28 Va.App. 306, 504 S.E.2d 394 (1998). The circuit court denied appellant’s motion, holding that Baker did not require the vacation of appellant’s conviction because appellant was an adult when charged with the offenses at issue.

II.

ANALYSIS

A.

COMMONWEALTH’S MOTION TO TRANSFER TO SUPREME COURT

The Commonwealth contends this Court lacks jurisdiction to consider a motion to vacate a final judgment in a criminal case and, therefore, that we should transfer the appeal to the Virginia Supreme Court pursuant to Code *221§ 8.01-677.1. The cases upon which the Commonwealth relies are distinguishable, and we conclude that appellate jurisdiction properly lies in this Court.

Virginia Department of Corrections v. Crowley, 227 Va. 254, 316 S.E.2d 439 (1984), which was decided before the Court of Appeals came into being, addressed whether “the jurisdictional question [involved in the denial of related motions to vacate was] ripe for appellate review on the merits” and required resolution of the question whether the proceedings instituted by the motions to vacate were civil or “merely another stage in the course of a continuing criminal prosecution.” Id. at 261-62, 316 S.E.2d at 443. In that context, the Court held the proceedings on the motions to vacate were civil in nature and, therefore, were properly before the Supreme Court. See id. at 262-63, 316 S.E.2d at 443 — 44.

We have since confronted more directly the issue of our jurisdiction over appeals which contain both civil and criminal components. See Nicely v. Commonwealth, 23 Va.App. 327, 477 S.E.2d 11 (1996) (involving administrative license suspension and related DUI charge). We concluded that the classification of “the underlying charge” as criminal governed our appellate jurisdiction, despite the fact that the dispositive issue on appeal was civil. See id. at 329 n. 1, 477 S.E.2d at 12 n. 1 (citing Brame v. Commonwealth, 252 Va. 122, 125, 476 S.E.2d 177, 179 (1996) (holding that appellate jurisdiction rested in Supreme Court because nature of underlying charge was civil)).

Applying these principles to appellant’s case, we hold that appellate jurisdiction properly lies in this Court because, although a motion to vacate or set aside a conviction may be civil in nature, the underlying charges here were criminal.

B.

SCOPE OF APPELLANT’S ASSIGNMENT OF ERROR ON APPEAL

The Commonwealth contends appellant’s assignment of error on appeal consists only of the contention that his father *222did not receive notice of the transfer hearing and does not cover the lack of notice to his father of initiation of the juvenile proceedings as a whole. We disagree. Appellant’s assignment of error refers specifically to Code §§ 16.1-263 and -264 and appellant’s motion to vacate of November 29, 1999. The legal arguments in the motion relate directly to “the mandatory notice requirements of Code Sections 16.1-263 and 16.1-264 concerning the initiation of proceedings against a juvenile” via “service of summonses [on] the ‘parents’ of a juvenile,” as addressed in Baker. Further, the trial court’s ruling on the motion relates specifically to the impact of failure to serve appellant’s father with the juvenile petition rather than notice of the transfer hearing. Therefore, the reasonable import of appellant’s assignment of error sufficiently covers the issue of the initiation of the juvenile proceedings to allow us to address this issue on appeal.

C.

EFFECT OF PRIOR TRANSFER TO CIRCUIT COURT ON CONTINUING JURISDICTION OF JUVENILE COURT

The Commonwealth argues, under Code §§ 16.1-271 and 16.1-269.6(C), that appellant’s prior conviction in the circuit court for other unrelated offenses precluded the juvenile court from exercising jurisdiction over the charges at issue here regardless of appellant’s age at the time of institution of these proceedings. Because the juvenile court was precluded from exercising jurisdiction, it contends, any defects in the juvenile court proceedings did not invalidate appellant’s circuit court convictions. We agree in regard to appellant’s conviction for attempted grand larceny, entered upon his plea of guilty.

As the Supreme Court held recently in Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 (2000),

[u]nder the plain language of [paragraph 2 of] Code § 16.1-271, a juvenile who has been convicted as an adult in circuit court [under the provisions of this article] is not entitled to a *223transfer hearing in juvenile court [for any pending allegations of delinquency which have not been disposed of by the juvenile court at the time of the criminal conviction]. Since Johnson had no right to a transfer hearing, the notice requirements pertaining to such a hearing are inapplicable and do not provide a basis for challenging either set of indictments returned in this case.

Id. at 669, 529 S.E.2d at 777.

Similarly in appellant’s case, his January 29, 1996 conviction for the unrelated offense of attempted grand larceny divested the juvenile court of jurisdiction over any pending allegations of delinquency not disposed of by the juvenile court at the time of the criminal conviction, which included the subject murder, malicious wounding and related firearms charges. Although appellant had not yet been sentenced on the attempted grand larceny offense at the time of his February 27, 1996 transfer hearing, the Commonwealth represented without objection that the grand larceny conviction was based on a guilty plea, which rendered it final for purposes of Johnson and Code § 16.1-271. “A plea of guilty that is voluntarily and intelligently made by an accused is a conviction----” Miracle v. Peyton, 211 Va. 123, 126, 176 S.E.2d 339, 341 (1970); cf. Jewel v. Commonwealth, 30 Va.App. 416, 422-23, 517 S.E.2d 264, 267-68 (1999) (noting that guilty plea accepted by court is “a self-supplied conviction” which may be used for impeachment prior to sentencing whereas jury verdict is not final for impeachment purposes until accused is sentenced because judge could set aside jury’s verdict (citation omitted)).

Relevant policy considerations support this result. Appellant had already had a transfer hearing in the J & DR court on the attempted grand larceny offense, at which he was found “ ‘not a proper person to remain within the jurisdiction of the juvenile court.’ ” Burfoot v. Commonwealth, 23 Va.App. 38, 46-48 & n. 4, 473 S.E.2d 724, 728-29 & n. 4 (1996) (quoting Code § 16.1-269.1(A)). Pursuant to that determination, the J & DR court transferred appellant for trial as an adult in the *224circuit court, where he entered a guilty plea and was convicted. Thus, the policies behind the juvenile transfer statute were no longer applicable, appellant no longer had a right to a transfer hearing on the murder, malicious wounding and related firearms charges, and any defects in the initiation of juvenile proceedings on those charges did not provide a basis for challenging the circuit court indictments.

For these reasons, we hold the J & DR court lost jurisdiction over appellant before transferring the charges against him to circuit court for trial as an adult. Because any defects in the juvenile court proceedings were obviated by this divestiture of jurisdiction, we hold the circuit court did not err in denying appellant’s motion to set aside the judgment of conviction, and we affirm its ruling without addressing the Commonwealth’s other arguments.

Affirmed.

. Appellant contends we may not consider the presentence report because it was not contained in the appendix. However, Rule 5A:25(h) permits us, in our discretion to “consider other parts of the record” not contained in the appendix.