Weese v. Com., Record No. 1712-98-4.

• Court: Court of Appeals of Virginia
• Citation: 517 S.E.2d 740,30 Va. App. 484
• Docket Number: Record No. 1712-98-4.
• Parties: Earnest Eugene WEESE, s/k/a Ernest Eugene Weese v. COMMONWEALTH of Virginia.
• Decision Date: 24 August 1999

517 S.E.2d 740

30 Va. App. 484

Earnest Eugene WEESE, s/k/a Ernest Eugene Weese v. COMMONWEALTH of Virginia.

Record No. 1712-98-4.

Court of Appeals of Virginia, Richmond.

August 24, 1999.

Joseph W. Kaestner, Richmond (J. Paul Walla, Dumfries; Kaestner, Pitney and Jones, P.C., Richmond; Ashton, Walla & Associates, P.C., Dumfries, on briefs), for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: COLEMAN, ELDER and BUMGARDNER, JJ.

COLEMAN, Judge.

Earnest Eugene Weese, a seventeen-year-old juvenile, pled guilty in circuit court to aggravated sexual battery pursuant to a plea agreement. The circuit court, hearing the case de novo on appeal from the juvenile and domestic relations district court, found Weese to be delinquent and committed him to an indefinite term with the Department of Juvenile Justice. After turning eighteen, Weese moved the circuit court to "amend the charge," in accordance with the plea agreement, from aggravated sexual battery to indecent exposure. Weese also moved the circuit court to vacate the conviction and dismiss the petition on the ground that the circuit court had lacked jurisdiction to enter the conviction order. Weese appeals the circuit court's denial of both motions. We hold that the circuit court had jurisdiction to enter the conviction and that the circuit court did not err in denying the motion to amend the charge against Weese. Accordingly, we affirm the rulings and judgment of the trial court.

I. BACKGROUND

The Commonwealth charged Weese in juvenile court with forcible sodomy against a child less than thirteen years of age. After pleading guilty pursuant to a plea agreement to aggravated sexual battery, Weese appealed the conviction to the circuit court for a trial de novo. Eventually, Weese pled guilty in circuit court to aggravated sexual battery pursuant to a second plea agreement. Among the conditions of the plea agreement, "Nit was stated by the Commonwealth for the record, if the defendant has no further violations prior to his eighteenth (18th) birthday they will amend the charge to indecent exposure a misdemeanor." The court accepted the plea, found Weese guilty of aggravated sexual battery and, as a delinquent, committed him for an indeterminate period to the Department of Juvenile Justice.

In the juvenile court proceeding, Weese's legal guardian received notice of the proceeding in accordance with the requirement of Code § 16.1-263 and she attended the juvenile court proceeding. However, after Weese's appeal to the circuit court, the guardian received no additional notice of and did not attend the adjudicatory proceeding at which Weese entered into the plea agreement and pled guilty. Weese's guardian received notice of and attended the dispositional hearing at which the court sentenced Weese to an indeterminate commitment with the Department of Juvenile Justice.

More than one year after entry of the final commitment order, Weese moved the circuit court to enforce the plea agreement by "amending the charge" to indecent exposure. Although the commitment order was final, by requesting amendment of the charge, Weese endeavored to reduce the offense to a misdemeanor for which his maximum term of commitment would have been twelve months, rather than an indeterminate delinquency commitment. Additionally, and for the first time, Weese moved to vacate the conviction and dismiss the petition on the ground that the circuit court lacked jurisdiction because Weese's guardian received no notice of the circuit court adjudicatory proceeding. Weese asserted that notice of the circuit court proceedings was mandatory and jurisdictional under Code § 16.1-263.

The circuit court denied both motions, finding that the juvenile court only had authority to enforce the plea agreement while the defendant was a juvenile and because Weese had waited until after his eighteenth birthday to seek enforcement of the plea agreement, the court had no authority to do so. The circuit court also found that its proceedings did not violate the notice requirements of Code § 16.1-263 and upheld the delinquency conviction and indeterminate commitment.

II. ANALYSIS

A. Notice

Weese contends that the circuit court erred when it tried Weese without giving notice of the adjudicatory hearing to Susan Atkins, his legal guardian who stood in loco parentis, as required by either Code § 16.1-263(A) or (B).

Initially, we must determine whether Weese is barred by Rule 1:1 from challenging the circuit court's jurisdiction more than twenty-one days after the final commitment order and whether it is proper to do so merely by filing a motion to set aside a conviction in the circuit court. Weese raised no objection at trial to the Commonwealth's failure to notify Atkins of the proceedings pending against him in the circuit court. In fact, Weese first presented the argument to the circuit court over one year after the court had entered the final commitment order. He raised the issue by filing a motion to set aside the conviction.

This preliminary issue is controlled by the Supreme Court's decision in Matthews v. Commonwealth, 216 Va. 358, 359, 218 S.E.2d 538, 540 (1975), which held that notwithstanding Rule 1:1, when a defendant moves a trial court to set aside a void judgment more than twenty-one days after its entry, the trial court has jurisdiction to vacate that judgment and the Court further held that filing a motion to set aside is a proper method for doing so. Thus, unless the failure to follow Code § 16.1-263 rendered the circuit court without jurisdiction to convict Weese, Rule 1:1 bars our review of this issue. However, if the trial court lacked jurisdiction, then Weese's conviction would be void ab initio, permitting Weese to challenge it at any time in an appropriate proceeding. Accordingly, the jurisdictional issue was properly before the circuit court by motion. Therefore, we must determine whether the failure to notify Atkins, Weese's guardian, deprived the circuit court of jurisdiction to convict Weese.

Code § 16.1-263(A) states that "[a]fter a petition is filed the court shall direct the issuance of summonses 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." Code § 16.1-263(B) further provides that notice "of subsequent proceedings shall be provided to all parties in interest."

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." 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 parents, or the person in loco parentis, a conviction order resulting from the proceedings is void. See Baker v. Commonwealth, 28 Va.App. 306, 314-15, 504 S.E.2d 394, 398-99 (1998),

affirmed 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; see also, Jones v. Commonwealth, 213 Va. 425, 427-28, 192 S.E.2d 775, 777 (1972) (finding that the failure of a Court of Hustings to notify a juvenile's parents rendered that court's judgment void); Peyton v. French, 207 Va. 73, 79-80, 147 S.E.2d 739, 743-44 (1966) (involving former Code sections requiring notice in juvenile hearings). Where the void juvenile court order purported to transfer jurisdiction over the juvenile to a circuit court, the resulting orders from the circuit court, which is without jurisdiction, are void. See e.g. Karim, 22 Va.App. at 779-80,

473 S.E.2d at 108-09. To satisfy the constitutional due process and jurisdictional notice requirements of Code § 16.1-263 and vest the juvenile court with jurisdiction, the juvenile court's record must establish that the required parties received proper notice of the proceedings. See id.

Weese does not argue that the juvenile court failed to notify Atkins, Weese's guardian. The juvenile court served Atkins with a summons, and she attended the juvenile court hearings. Instead, Weese argues that the failure of the circuit court to serve notice upon Atkins violated the mandate of Code § 16.1-263 and without such notice in the de novo proceeding, the circuit court lacked jurisdiction to hear the petition.

As previously noted, the notice requirement of Code § 16.1-263(A), as it applies to the initiation of delinquency proceedings and petitions against a juvenile, is mandatory and jurisdictional. See id. Weese contends the language of Code § 16.1-263(A) has the same jurisdictional significance to a juvenile petition heard de novo in the circuit court. In addition, Weese claims the circuit court violated the mandate of Code § 16.1-263(B) requiring that notice "of subsequent proceedings... be provided to all parties in interest" which, Weese asserts, is also mandatory and jurisdictional.

Code § 16.1-263(A) is mandatory and...