Shackleford v. Com., Record No. 2883-98-3.

Docket NºRecord No. 2883-98-3.
Citation32 Va. App. 307, 528 S.E.2d 123
Case DateMarch 28, 2000
CourtCourt of Appeals of Virginia

528 S.E.2d 123
32 Va.
App. 307

Dorian Lee-Kirk SHACKLEFORD
v.
COMMONWEALTH of Virginia

Record No. 2883-98-3.

Court of Appeals of Virginia. Salem.

March 28, 2000.


528 S.E.2d 126
Elizabeth P. Murtagh, Senior Assistant Public Defender; Office of the Public Defender, on brief, for appellant

John H. McLees, Jr., Assistant Attorney General; Mark L. Earley, Attorney General, on brief, for appellee.

Present: COLEMAN and FRANK, JJ., and HODGES, Senior Judge.

COLEMAN, Judge.

Dorian Lee-Kirk Shackleford, a juvenile, was transferred to the circuit court for trial as an adult and was convicted in a bench trial

528 S.E.2d 127
of possession with intent to distribute cocaine in violation of Code § 18.2-248, transporting cocaine into the Commonwealth with the intent to sell or distribute in violation of Code § 18.2-308.4(b), and possession of a firearm with intent to distribute a controlled substance in violation of Code § 18.2-248(c). On appeal, Shackleford contends that the trial court erred by: (1) denying his motion to dismiss the indictment for lack of jurisdiction because his father was not notified of the transfer hearing or the appeal from that hearing; (2) denying his motion to dismiss because his mother was not notified of the appeal pending in the circuit court of the transfer hearing; (3) denying his motion to continue the appeal of the transfer proceedings due to his mother's lack of notice; (4) denying his motion to suppress his confession and the evidence found during the search of the taxicab; and (5) finding the evidence sufficient to support his convictions. Finding no error, we affirm

BACKGROUND

On January 7, 1998, Special Agent J.C. Miers and Trooper Mike Hall were conducting an undercover drug interdiction at the Greyhound bus station in Lynchburg, Virginia. Miers and Hall observed Shackleford exit a bus with a single carry-on bag and enter the bus terminal. Shackleford later approached Miers and asked for the phone number of the local cab company. After Shackleford called to summon a cab, Miers approached him, displaying his badge. Shackleford accompanied Miers to a remote corner of the bus terminal to speak with him. Shackleford stated that he was traveling from New York to Lynchburg to visit his sick aunt in the hospital. He then stated that he was going to take a cab to some other location and his aunt would pick him up later and take him to her residence. Miers testified that he became suspicious and asked Shackleford for permission to search his bag. Shackleford did not consent, stating that the bag contained his aunt's personal items. The taxicab arrived and Shackleford left. Shackleford advised the cab driver to take him to a motel on the outskirts of town, which further aroused Miers' suspicions. While following the cab to the motel, Miers and Hall observed Shackleford shifting from side to side and leaning over in the cab. Hall contacted a K-9 unit and requested that an officer meet him at the motel.

When Shackleford arrived at the motel, a uniformed police officer was waiting by his patrol vehicle. Shackleford exited the cab and set his bag on the ground. Miers approached Shackleford and informed him that he was free to go but that his bag would be detained in order to allow the K-9 unit to sniff the bag. Miers testified that Shackleford consented to the search of his bag, stating that "there's no drugs or anything in it." Simultaneously, Hall requested and received permission from the cab driver to search the taxicab where he discovered a semi-automatic weapon and an oblong package on which the K-9 unit alerted. The package contained fourteen individual plastic baggies of crack cocaine. The cab driver stated that he had cleaned his taxi the previous night and that Shackleford was the first fare of the day. The cab driver testified that, although he was unable to visually observe Shackleford while en route to the motel, the cab driver heard what sounded like someone "stuffing" a bag or paper under the seat.

Shackleford was arrested and transported to the police station. Miers advised Shackleford of his Miranda rights and because he was a minor, his right to have his parents present. Shackleford signed a waiver-of-rights form and, without requesting his parents' presence, made a statement. Shackleford also informed Miers that he was a naturalized citizen and resident of New York.

The Commonwealth filed three petitions in juvenile and domestic relations district court charging Shackleford with the three drug-related offenses. The petitions listed Shackleford's mother's name and address. The petition also listed Shackleford's father's name; however, the petition stated only that he lived in Kingston, Jamaica and gave no further information.

The juvenile court held a transfer hearing pursuant to Code § 16.1-269.1. The transfer report listed Leon Shackleford as Shackleford's father and listed his address as Kingston, Jamaica, but provided no further information. The juvenile court judge found

528 S.E.2d 128
probable cause to believe that Shackleford had committed the charged offenses, see Code § 16.1-269.1(A)(2), and found that Shackleford was "not a proper person to remain within the jurisdiction of the juvenile court." Code § 16.1-269.1(A)(4). Accordingly, the juvenile court transferred Shackleford to the circuit court to be tried as an adult

Prior to hearing the appeal of the transfer decision in circuit court, Shackleford filed a motion to continue the proceedings because his mother had not been notified. The circuit court denied the motion. Shackleford was subsequently indicted in circuit court on the three charges. After indictment, Shackleford filed a motion to dismiss arguing that the trial court lacked jurisdiction because neither parent had been notified of the appeal of the transfer hearing and because his father was not notified of the filing of the petition and transfer hearing in juvenile court. The trial court denied the motion.

Prior to trial, Shackleford filed a motion to suppress his statement and the physical evidence found in the taxicab. He argued that his statement was obtained in violation of his constitutional rights in that he was not adequately advised of his right to counsel and his rights under the Vienna Convention in that he was denied his right to consult a member of the Jamaican Embassy in Washington, D.C. Shackleford further argued that the firearm and the cocaine should be suppressed because the discovery of the physical evidence was tainted by his illegal detention after he exited the taxicab. The trial court denied the motion.

The circuit court found Shackleford guilty of the three charges and sentenced him to a total of twenty-three years with sixteen years suspended, a $2,500 fine, and suspension of his operator's license for six months.

ANALYSIS

A. Jurisdiction

1. Father's Notification

Shackleford argues that the circuit court lacked jurisdiction because the juvenile court did not comply with the mandatory notice requirements of Code §§ 16.1-263 and -264 by failing to provide notice of the transfer hearing to his father.

Code § 16.1-263(A) states that "[a]fter a petition has been filed, the court shall direct the issuance of summonses . . . to the parents . . . ."1 Code § 16.1-263 further provides that notice "of subsequent proceedings shall be provided to all parties in interest." Code § 16.1-263(B). "We have held that `compliance with [Code §§ 16.1-263 and 16.1-264] relating to procedures for instituting proceedings against juveniles, are mandatory and jurisdictional. The failure to strictly follow the notice procedures contained in the Code [deny the defendant] a substantive right and the constitutional guarantee of due process.'" Weese v. Commonwealth, 30 Va. App. 484, 489, 517 S.E.2d 740, 743 (1999) (quoting Karim v. Commonwealth, 22 Va. App. 767, 779, 473 S.E.2d 103, 108-09 (1996) (en banc)). Thus, we have held that where a juvenile court conducts a delinquency proceeding without notifying the parents or certifying that notice cannot reasonably be obtained, a conviction order resulting from the proceedings is void. See Baker v. Commonwealth, 28 Va.App. 306, 315, 504 S.E.2d 394, 399 (1998), aff'd per curiam, 258 Va. 1, 516 S.E.2d 219 (1999); Williams v. Commonwealth, 26 Va.App. 776, 781-82, 497 S.E.2d 156, 159 (1998); Karim, 22 Va.App. at 779-80, 473 S.E.2d at 108-09. Furthermore, where the void juvenile court order purports to transfer jurisdiction over the juvenile to a circuit court to be tried as an adult, the circuit court is without jurisdiction and the resulting conviction orders are void, unless the necessary parties have waived the defect or the defect has been otherwise corrected. See e.g. Baker, 28 Va.App. at 313, 504 S.E.2d at 398; Karim, 22 Va.App. at 779-80, 473 S.E.2d at 108-09.

In Moore v. Commonwealth, 259 Va. 405, 527 S.E.2d 415 (2000), the Virginia Supreme

528 S.E.2d 129
Court held that, in cases where the offense was committed on or after July 1, 1996, the notice requirements of Code §§ 16.1-263 and -264 are subject to waiver by virtue of Code § 16.1-269.1(E), which was enacted by the General Assembly in 1996, and any defect or error in the proceedings is cured if not raised before indictment. The Supreme Court held that Code § 16.1-269.1(E) controls, which provides in relevant part: "[a]n indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age." The Supreme Court found that, although "the Commonwealth's failure to notify the defendant's biological father of the initiation of juvenile court proceedings. . . created a defect in those proceedings[,]. . . that defect was cured when the grand jury returned indictments against the defendant of the offenses certified to it by the juvenile court." The curative statutory provision of Code § 16.1-269.1(E) allowed the circuit court to exercise its subject matter...

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