Karim v. Com.
| Decision Date | 30 July 1996 |
| Docket Number | No. 1711-94-4,1711-94-4 |
| Citation | 22 Va.App. 767,473 S.E.2d 103 |
| Court | Virginia Court of Appeals |
| Parties | Khalid KARIM, s/k/a Khalid Y. Karim v. COMMONWEALTH of Virginia. Record |
Michael J. Cassidy, Fairfax, for appellant.
John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on briefs), for appellee.
Present: MOON, C.J., and BENTON, COLEMAN, WILLIS, ELDER, BRAY, FITZPATRICK, ANNUNZIATA and OVERTON, JJ.
UPON A REHEARING EN BANC
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 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.
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 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 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 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:
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.
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.
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 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.
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...
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