Quincy Damon Phillips v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Humphreys
Argued at Chesapeake, Virginia
QUINCY DAMON PHILLIPS
MEMORANDUM OPINION * BY
v. Record No. 2938-99-1 JUDGE JAMES W. BENTON, JR.
MARCH 6, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Bryan L. Saunders for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Quincy Damon Phillips, who was convicted of criminal
offenses in 1995, appeals the denial of his motion for a new
trial. He contends that the precedent of 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), mandates the reversal of his
conviction and a new trial because the juvenile and domestic
relations district court did not give notice to his biological
father in the manner required by law. We agree and reverse the
trial judge's decision.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In 1995, the Commonwealth filed petitions in juvenile court
charging Phillips's, who was then 15 years old, with robbery and
attempted robbery. The petitions identified Phillips's father
and mother to be Ricky Phillips and Sharon Phillips. The record
also indicates that they both signed Phillips's "recognizance"
bail form at the line designated "Custodian." Ricky Phillips
also signed a "notification of rights" form on the line
designated "Parent(s) or Guardian(s)."
When the juvenile court transferred Phillips to the circuit
court for trial as an adult, the order noted that both "mother"
and "father" were present. In the circuit court, Phillips pled
guilty to robbery and attempted robbery. The 1995 conviction
and sentencing orders noted that "the defendant's parents, Ricky
Phillips and Sharon Phillips, were also present."
In July 1999, Phillips filed the motion for a new trial.
The motion alleged that the courts had failed to notify
Phillips's "biological parents." At the hearing on the motion,
Sharon Phillips testified that she was Phillips's mother and
Franklin Allen was Phillips's biological father. She also
testified that when the petition against Phillips was served on
Ricky Phillips, she and Ricky Phillips were married and had been
married since 1984. They had sought to have Ricky Phillips adopt
Phillips in 1985 while Ricky Phillips was in the military. When
they contacted a military Judge Advocate General officer for
- 2 -
assistance, he "guided [them] through it, told [them] a little bit
about it and began the paperwork." After Allen executed the
notarized form, Sharon Phillips filed in the circuit court
pleadings, which had been prepared by the JAG officer and which
she "thought was going to be an adoption." The 1985 circuit court
order, which was filed as an exhibit at the hearing, indicates
only that Phillips's name was changed from Quincy Damon Washington
to Quincy Damon Phillips.
Sharon Phillips testified further that Allen attended none of
the proceedings in juvenile or circuit court in 1995. She did not
know Allen's location and last had contact with Allen in 1985.
She testified, however, that Phillips occasionally visited Allen's
parents when he was a child but that she was unaware of any
contact he may have had with Allen.
Upon this evidence, the trial judge denied the motion for a
new trial. Phillips appeals.
II.
As a preliminary matter, we address the Commonwealth's
contention that the Supreme Court of Virginia has jurisdiction
over this appeal. Relying on Virginia Dep't of Corrections v.
Crowley, 227 Va. 254, 263, 316 S.E.2d 439, 443-44 (1984), the
Commonwealth argues that this action is civil in nature and that
we should transfer it to the Supreme Court. We disagree with
this contention for the reasons stated in Asby v. Commonwealth,
34 Va. App. 217, 539 S.E.2d 742 (2001).
- 3 -
III.
Phillips contends that the juvenile court never had proper
jurisdiction of this case. Thus, he contends the transfer of
the case to the circuit court for trial was void.
At the time of these events in 1995, former Code § 16.1-263
stated in pertinent part as follows:
A. After a petition is filed, the court
shall direct the issuance of summonses, one
directed to the juvenile, if the juvenile 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 juvenile 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. The summons shall include
notice that in the event that the juvenile
is committed to the Department or to a
secure local facility, the parent or other
person legally obligated to care for and
support the juvenile may be required to pay
a reasonable sum for support and treatment
of the juvenile pursuant to § 16.1-290.
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
- 4 -
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.
Code § 16.1-263 (emphasis added). Code § 16.1-264 provided for
service of process by publication if a parent's location could
not be ascertained.
In Baker I, we held that a plain reading of Code § 16.1-263
"manifests legislative intent that both parents be notified and
dispenses with this requirement only when the trial judge has
certified on the record that the identity of a parent is not
reasonably ascertainable." 28 Va. App. at 312, 504 S.E.2d at
394. The Commonwealth must make a reasonable inquiry to find
the juvenile's parent and effect service of the summons by
publication should that inquiry fail. Id. Because we had
previously held that these notice requirements were mandatory
and jurisdictional in nature, see Karim v. Commonwealth, 22 Va.
App. 767, 779, 473 S.E.2d 103, 108-09 (1996), we held in Baker I
that the circuit court proceedings were void and reversed
- 5 -
Baker's conviction. 28 Va. App. at 315, 504 S.E.2d at 399. In
Baker II, the Supreme Court affirmed those rulings. See 258 Va.
at 2, 516 S.E.2d at 219.
Subsequent to Baker, the Supreme Court has had several
opportunities to re-visit questions of this nature. In David
Moore v. Commonwealth, 259 Va. 431, 527 S.E.2d 406 (2000), the
Court reversed the conviction of a defendant whose father was
never summoned to appear in juvenile or circuit court. Lack of
a timely objection constitutes the primary distinction between
the Baker case and David Moore. See 259 Va. at 437, 527 S.E.2d
at 409. In David Moore, the Court held that an objection was
not necessary because the statutory notice of the initiation of
juvenile court proceedings to a juvenile's parent was not
subject to waiver. 259 Va. at 440, 527 S.E.2d at 410-11. In
doing so, the Court distinguished between "the power of a court
to adjudicate a specified class of cases, commonly known as
'subject matter jurisdiction,' and the authority of a court to
exercise that power in a particular case." Id. at 437, 527
S.E.2d at 409. A court's authority to exercise its power may be
"'restricted by a failure to comply with statutory requirements
that are mandatory in nature and, thus, are prerequisite to a
court's lawful exercise of jurisdiction.'" Id. (citation
omitted). The requirement of notice to both parents was one
such mandatory requirement under former Code § 16.1-263. Id. at
438, 527 S.E.2d at 409-10.
- 6 -
The juvenile court in Phillips's case never lawfully
exercised its subject matter jurisdiction because it failed to
notify Allen, who is Phillips's father. Here, no one, not even
Phillips, his mother, his father or his putative father,
realized that Ricky Phillips was not Phillips's father within
the meaning of then Code § 16.1-263. Because of that fact, no
notice was sent to Allen and the courts did not satisfy the
statutory requirements necessary to exercise power in this
particular case. Therefore, the juvenile court could not have
transferred this case to the circuit court's jurisdiction.
Phillips's conviction is void.
The Commonwealth seeks to create an exception to the law.
It argues that the juvenile court made the "reasonable inquiry"
mentioned in Baker I and that the court could not possibly have
determined that Allen was the real father and notified him of
the charges. The Commonwealth contends that this case differs
from David Moore because the courts were not put on notice that
the adult appearing with Phillips was only a stepfather.
Relying on Erickson-Dickson v. Erickson-Dickson, 12 Va. App.
381, 404 S.E.2d 388 (1991), the Commonwealth argues that once a
court has jurisdiction it may not lose that jurisdiction simply
because it made an incorrect factual determination necessary to
continue exercising its jurisdiction.
In Erickson-Dickson, a circuit judge had awarded a divorce
but postponed a decision on equitable distribution until a later
- 7 -
date. Former Code § 20-107.3 required a joint motion of both
parties and a finding by the judge that the distribution
involved complex matters before the judge could postpone such a
decision. 12 Va. App. at 383, 404 S.E.2d at 389. Although both
parties had requested equitable distribution in their original
pleadings, they had made no joint motion to postpone that
determination and the judge made no finding of sufficient
complexity. Id. The husband, who did not object at trial to
the postponement, argued on appeal that the failure to satisfy
the two statutory requirements deprived the court of
jurisdiction and, thus, barred equitable distribution. We
disagreed because the issue was not whether the court properly
had acquired jurisdiction, but whether it had retained
jurisdiction. Thus, we held that "[w]hen the court has acquired
jurisdiction over the parties and the subject matter, and its
continued exercise of that jurisdiction requires a ruling which
depends upon factual determinations, an error in deciding the
facts or the failure to decide them does not render the ruling
void or a nullity." Id. at 388, 404 S.E.2d at 392.
Nevertheless, nothing in Erickson-Dickson suggests that the
statutory procedures at issue were "mandatory and
jurisdictional." See Baker I, 28 Va. App. at 310, 504 S.E.2d at
396; Karim, 22 Va. App. at 779, 473 S.E.2d at 108-09 (holding
that the provisions "relating to procedures for instituting
proceedings against juveniles, are mandatory and
- 8 -
jurisdictional"). Furthermore, as the Supreme Court noted in
David Moore, the statutes concerning these procedures "provide
the statutory means by which a circuit court acquires the
authority to exercise its subject matter jurisdiction over a
class of offenses committed by a juvenile that would otherwise
fall within the exclusive original subject matter jurisdiction
of the juvenile court." 259 Va. at 438, 527 S.E.2d at 409.
Thus, it is not simply the jurisdiction of one court that is at
issue in juvenile transfer cases.
There is no question that when the
statutory requirements related to the
juvenile court proceedings are followed, a
circuit court's subject matter jurisdiction
over the class of offenses committed by a
juvenile that are at issue here is invoked.
It is the unique statutory framework whereby
a juvenile court and in turn a circuit court
acquire the authority to exercise their
subject matter jurisdiction that is at issue
here and was at issue in a number of our
prior cases.
259 Va. at 438, 527 S.E.2d at 409 (citations omitted). The
convictions at issue in this case occurred in the circuit court,
whose authority to exercise its jurisdiction depended on
compliance with the mandatory procedures. Because that process
was flawed, the circuit court never acquired jurisdiction and
the convictions are void.
The Commonwealth also asks us, in effect, to distinguish
between the conduct of the juvenile court in David Moore and the
conduct in this case and label one of them a factual error that
- 9 -
has no effect. In both cases, however, the juvenile courts
failed to give proper notice to a parent of the juvenile
defendant. The fact that the juvenile court in this case
believed that it had done so correctly does not change the fact
that it failed to fulfill the statutory requirements necessary
to exercise jurisdiction.
The Commonwealth argues that Phillips should not be able to
benefit from a misrepresentation that Ricky Phillips was his
father. The trial judge noted that Ricky Phillips signed the
juvenile court forms at the lines indicated for "Custodian" and
"Parent(s) or Guardian(s)." Neither that evidence nor any other
evidence indicates, however, that Phillips, Sharon Phillips, or
Ricky Phillips made representations with knowledge of the true
facts. A court may not acquire subject matter jurisdiction and
exercise it in a specific case based on the unknowing
misrepresentation of a party. Because of the basic nature of
jurisdiction, the fact that the record indicates an unknowing
misrepresentation of Phillips's family situation will not alter
our decision.
Lastly, the Commonwealth argues that Phillips waived all of
his objections by pleading guilty. A guilty plea waives all
non-jurisdictional defects in a court proceeding. Peyton v.
King, 210 Va. 194, 196-97, 169 S.E.2d 569, 571 (1969). While
the David Moore decision distinguished between subject matter
jurisdiction and the exercise of subject matter jurisdiction,
- 10 -
both issues are "jurisdictional" and a guilty plea does not
waive objections to them.
For these reasons, we reverse the ruling of the trial court
and remand this case for a new trial.
Reversed and remanded.
- 11 -