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ROACH v. DIRECTOR, DEPT. OF CORRECTIONS



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ROACH

v.

DIRECTOR, DEPT. OF
CORRECTIONS


November 5, 1999

Record No. 991816

STEVE EDWARD ROACH

v.

DIRECTOR, DEPARTMENT OF CORRECTIONS

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

Present: All the Justices

OPINION BY JUSTICE BARBARA MILANO KEENAN


Steve Edward Roach was tried by a jury in the
Circuit Court of Greene County and was convicted of capital
murder, robbery, and use of a firearm in the commission of a
felony. The capital murder conviction was based on the murder of
Mary Ann Hughes in the commission of robbery while armed with a
deadly weapon. Code ? 18.2-31(4). Roach, who was 17 years
old when the crimes were committed, was sentenced to death on the
capital murder conviction based on the aggravating factor of
"future dangerousness." The trial court also sentenced
Roach to three years’ imprisonment for the use of a firearm in
the commission of a murder and to life imprisonment for robbery.
We affirmed the trial court’s judgment in Roach v.
Commonwealth
, 251 Va. 324, 468 S.E.2d 98, cert. denied,
519 U.S. 951 (1996).

Roach filed the present petition for a writ of
habeas corpus invoking the original jurisdiction of this Court.
He alleges that his parents were not provided notice as required
by former Code ? 16.1-263 of proceedings in the Greene
County Juvenile and Domestic Relations District Court (juvenile
court) that resulted in his transfer to the Greene County Circuit
Court (circuit court) for trial as an adult.
[1] He contends that under our recent holding in Commonwealth
v. Baker
, 258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), the
failure to provide such notice renders his convictions void for
lack of jurisdiction.

On December 7, 1993, two juvenile petitions
were issued against Roach, charging him with the capital murder
of his 70-year-old neighbor, Mary Ann Hughes, and use of a
firearm in the commission of that felony. On December 10, 1993, a
third juvenile petition was issued, charging Roach with the
robbery of Hughes. Also on December 10, 1993, Roach’s father,
John Edward Roach, and mother, Shirley Ann Roach, were personally
served with written notice that a hearing would be held that day
in the juvenile court to determine whether the criminal charges
against Roach should be transferred to the circuit court.

The transcript of the December 10, 1993 hearing
reflects that both parents were present. During that proceeding,
the juvenile court heard various motions and scheduled the
transfer hearing for February 11, 1994. The juvenile court also
issued written notice of the February 11, 1994 hearing, and a
sheriff’s return of service of process reflects that both parents
were personally served with notice of the hearing. On February
11, 1994, both parents were present in the juvenile court, and
that court continued the case until May 6, 1994, "for
transfer hearing."

Prior to the May 6, 1994 transfer hearing, at
the request of Roach’s counsel, the juvenile court issued a
witness subpoena for Roach’s mother requiring her appearance at
the hearing. Both parents appeared at the May 6, 1994 proceeding.
During the hearing, at the request of Roach’s counsel, the
juvenile court excluded all witnesses, including Roach’s mother,
from the courtroom. After hearing the evidence and argument of
counsel, the juvenile court stated:

The only thing in this case that I want
to read the authorities more clearly on is the
voluntariness of this statement [Roach's purported
confession dated December 6, 1993] . . .
[A]ssuming that that voluntariness is established and the
Court is satisfied with it, I don’t have any reservations
about certifying this case. But it seems to me that the
case, in meeting these standards [for transfer to the
circuit court under former Code ? 16.1-269], has to
rest upon this statement being used in evidence, so that
the statement, itself, is very essential and crucial.

The juvenile court stated that it would take
under advisement the issue of the admissibility of Roach’s
statement. In an order dated May 13, 1994, the juvenile court
directed that Roach be transferred to the circuit court for
further criminal proceedings. In that order, the juvenile court
ruled, among other things, that "from the evidence presented
. . . there is probable cause to believe the juvenile
committed the delinquent act[s] alleged."

Roach noted his appeal from the transfer
decision pursuant to former Code ? 16.1-269(E). On June 16,
1994, the circuit court conducted a review of the transfer
decision. On July 5, 1994, the circuit court entered an order
stating that "[a] review of the transcript of the transfer
hearing [in the juvenile court] shows the statement was never
admitted into evidence and it was necessary as evidence in order
to show probable cause." The order remanded the case to the
juvenile court "for a ruling on whether the Defendant’s
statement is to be admitted into evidence."

On July 22, 1994, the juvenile court conducted
a hearing in response to the circuit court’s order. The record
does not show that Roach’s parents were given notice of that
hearing or that they were present in the juvenile court. At the
hearing, the juvenile court heard argument concerning the
admissibility of Roach’s statement and whether the Commonwealth
had established probable cause to believe that Roach committed
the three offenses. After Roach made a motion to strike the
evidence, the juvenile court reviewed the content of Roach’s
purported confession and stated:

Having reviewed that again, I find that
the case should be sent up and that a motion to strike is
overruled and I find that that statement in itself,
coupled with the other evidence . . . all of it
led . . . to the conclusion that this was a
case which should be transferred, and I restate that and
confirm that decision, particularly in light of the
remand which indicated that the Court should make a
specific finding on the record that the statement is
admissible.

The juvenile court then entered an order
entitled "Transfer Order." In that order, the juvenile
court specified that Roach’s statement "is hereby admitted
into evidence" and found that there was probable cause to
believe that Roach committed the crimes charged. The order
concluded: "This case is again Transferred and Certified to
the Circuit Court . . . for further proceedings in
accordance with the previous Transfer Order dated May 13,
1994."

The circuit court held a hearing on September
1, 1994, to complete its review of the juvenile court’s transfer
decision. After the hearing, the circuit court entered an order
authorizing the Commonwealth to seek an indictment on all three
charges.

In his petition for a writ of habeas corpus,
Roach alleges that his parents were not given notice of all the
transfer proceedings in the juvenile court. He argues that our
decision in Baker compels a conclusion that the circuit
court did not acquire jurisdiction to try him on the three felony
charges.

In Baker, for the reasons stated in the
opinion of the Court of Appeals, we affirmed the Court’s judgment
voiding the circuit court convictions of a juvenile because the
required notice of transfer hearing was not provided to the
juvenile’s father. 258 Va. at 2, 516 S.E.2d at 220. The Court of
Appeals held that "[a] plain reading of Code
?? 16.1-263 and 16.1-264 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." Baker
v. Commonwealth
, 28 Va. App. 306, 312, 504 S.E.2d 394, 397
(1998). The Court of Appeals concluded that "[b]ecause the
notice of the initiation of juvenile proceedings was not properly
served on the required parties, the transfer of jurisdiction was
ineffectual and the subsequent convictions are void." Id.
at 315, 504 S.E.2d at 399.

Roach contends that the May 6, 1994 transfer
hearing was defective because his mother was not given the
required statutory notice, and that her compulsory attendance as
a witness at this hearing did not constitute a waiver of notice.
Roach also asserts that the circuit court did not acquire
jurisdiction over him as a result of the May 13, 1994 transfer
order because the juvenile court did not make a "valid"
probable cause determination in that order. Roach contends that
the July 22, 1994 hearing in the juvenile court, at which a
probable cause determination was made, also was defective because
neither parent was given notice of that hearing, which rendered
the later proceedings in the circuit court void. We disagree with
Roach’s arguments.

We consider these arguments in the context of
the statutory framework established by the General Assembly for
the adjudication of offenses allegedly committed by a juvenile.
These statutes give the juvenile and domestic relations district
courts "exclusive original jurisdiction" over "all
cases, matters and proceedings" concerning a juvenile who is
alleged to have been delinquent. Code ? 16.1-241(A). The
transfer decision made by a juvenile and domestic relations
district court is a proceeding within the meaning of this
provision.
[2] When a juvenile court transfers a
juvenile to a circuit court for further criminal proceedings, the
circuit court has exclusive jurisdiction on appeal of that
decision to review the juvenile court proceedings to determine
whether "there has been compliance with [former Code
? 16.1-269]." See former Code
? 16.1-269(A)(3).

In 1993, when Roach was charged with the three
felony offenses, the notice provisions of former Code
? 16.1-263 stated, in relevant part:

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 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. . . .  Notice of
subsequent proceedings shall be provided to all parties
in interest.

The May 6, 1994 transfer hearing was a
"subsequent proceeding" within the meaning of former
Code ? 16.1-263 and, thus, under the language of the
statute, Roach’s mother was required to be given
"notice" of that proceeding. Roach argues, however,
that actual notice to the mother did not satisfy this requirement
because she appeared under compulsory process and, therefore, did
not "waive service of summons by written stipulation or by voluntary
appearance at the hearing," as permitted by the statute. See
former Code ? 16.1-263(D) (emphasis added).

We find no merit in this argument because
former Code ? 16.1-263(D) refers only to the initial
summons to be served on parties in interest. Following service of
that summons, which was effected on both parents in this case,
there was no prescribed method of notice of subsequent
proceedings. See former Code ? 16.1-263(B). The
mother was served with a summons to appear as a potential
witness, she appeared at the hearing, and she was excluded from
the courtroom at the request of Roach’s counsel while waiting to
testify. Neither Roach nor his mother objected to the adequacy of
the notice she received. Under these circumstances, we hold that
the mother’s appearance in court satisfied the statutory notice
requirements of former Code ? 16.1-263.

Our decision in Turner v. Commonwealth,
216 Va. 666, 222 S.E.2d 517 (1976), directly supports this
conclusion. In Turner, the record failed to show that the
juvenile’s parents received written notice of his transfer
hearing as required by former Code ? 16.1-176(a)(3).
However, his parents were present at the transfer hearing, along
with the juvenile and his attorney, and no one objected to the
adequacy of the parents’ notice of the hearing. Id. at
668, 222 S.E.2d at 519. We held that when a parent had actual
notice of a transfer hearing, any departure from the statutory
requirement of written notice was a procedural, rather than a
jurisdictional, defect that "may be cured or waived by the
appearance of proper and necessary parties and a failure to
object to inadequacy of notice." Id. at 668, 222
S.E.2d at 519. Thus, in the present case, any defect in the
manner of notice to Roach’s mother was cured by her appearance at
the hearing and the absence of any objection at the hearing to
the adequacy of that notice. See id.

We also find no merit in Roach’s assertion that
his mother’s exclusion from the courtroom as a potential witness
eliminated the substantive protection of the notice requirement
because she was not able to be present with Roach at the hearing
and provide him guidance. The mother was excluded from the
hearing on the motion of Roach’s counsel without any suggestion
that her dual role as parent and potential witness required that
she be allowed to remain in the courtroom. Thus, her absence from
the courtroom during the hearing was attributable only to Roach,
and not to the juvenile court or the Commonwealth.

We next address Roach’s contention that the May
13, 1994 order did not result in a valid transfer of Roach’s
cases to the circuit court, and that the transfer actually
occurred at the July 22, 1994 hearing in the juvenile court, of
which Roach’s parents were not given notice. Contrary to Roach’s
assertion, the May 13, 1994 order demonstrates that the juvenile
court made the findings required by statute for the
jurisdictional transfer. Former Code ? 16.1-269 did not
require the juvenile court to state the basis for its probable
cause determination. Thus, the juvenile court was not required to
include in its order a specific ruling on the admissibility of
Roach’s confession. See former Code
? 16.1-269(A)(3).

On Roach’s appeal from the May 13, 1994 order,
the circuit court initiated its compliance review under former
Code ? 16.1-269(A)(3). At a June 16, 1994 hearing, the
circuit court considered the sufficiency of the evidence of
probable cause to show that Roach committed the charged offenses.
This review of the juvenile court’s probable cause determination
was contrary to the directive of former Code ? 16.1-269(E),
which provided in relevant part that on a juvenile’s appeal of a
transfer decision:

The circuit court shall, within a
reasonable time after receipt of the case from the
juvenile court, (i) examine all such papers, reports and
orders and (ii) conduct a hearing to take further
evidence on the issue of transfer, to determine if there
has been compliance with this section, but without
redetermining whether the juvenile court had sufficient
evidence to find probable cause
, and enter an order
either remanding the case to the juvenile court or
advising the attorney for the Commonwealth that he may
seek an indictment. [Emphasis added.]

A court has only such jurisdiction as is
granted to it by statute or by the Constitution. Morrison v.
Bestler
, 239 Va. 166, 169, 387 S.E.2d 753, 755 (1990); County
School Bd. v. Snead
, 198 Va. 100, 104-05, 92 S.E.2d 497, 501
(1956); Humphreys v. Commonwealth, 186 Va. 765, 772, 43
S.E.2d 890, 894 (1947). In granting the circuit court subject
matter jurisdiction to determine whether the juvenile court
complied with the transfer requirements of former Code
? 16.1-269, the legislature expressly excluded from that
authority any substantive review of the sufficiency of the
evidence to support a finding of probable cause. The juvenile
court’s order of May 13, 1994, showed on its face that the
juvenile court found probable cause to believe that Roach
committed the charged offenses.
[3] Thus, in conducting its compliance review of Roach’s
transfer, the circuit court had no authority to review this
aspect of the juvenile court’s transfer decision.

Because the circuit court exceeded its
jurisdiction in ruling on the sufficiency of the evidence to
support a finding of probable cause, the July 5, 1994
order purporting to remand the issue of the admissibility of
Roach’s statement was void. See Parrish v. Jessee,
250 Va. 514, 520-21, 464 S.E.2d 141, 145 (1995); Morrison,
239 Va. at 170, 387 S.E.2d at 755-56; Brown v. Commonwealth,
215 Va. 143, 145, 207 S.E.2d 833, 835-56 (1974); Bryant v.
Commonwealth
, 198 Va. 148, 151, 93 S.E.2d 130, 132 (1956).
Thus, the proceedings in the juvenile court based on that order
were a nullity, and the juvenile court’s July 22, 1994 order also
was void. See Parrish, 250 Va. at 520, 464 S.E.2d
at 145; Morrison, 239 Va. at 170, 387 S.E.2d at 755-56; New
York, Philadelphia & Norfolk R.R. Ferry Co. v. Commonwealth
,
196 Va. 428, 432, 83 S.E.2d 782, 784 (1954).

The Commonwealth’s effective consent to remand
the issue of the admissibility of Roach’s statement to the
juvenile court does not alter this result because neither consent
of the parties, nor waiver, can confer subject matter
jurisdiction on a court. Morrison, 239 Va. at 169-70, 387
S.E.2d at 755; Brown, 215 Va. at 145, 207 S.E.2d at 836; Snead,
198 Va. at 105, 92 S.E.2d at 501; Humphreys, 186 Va. at
772-73, 43 S.E.2d at 894. Therefore, because the proceedings in
the juvenile court on July 22, 1994, were a nullity and, thus,
had no legal effect, the Commonwealth was not required to notify
Roach’s parents of that hearing.

When Roach appeared in the circuit court with
his parents and counsel on September 1, 1994, for review of the
transfer decision, the circuit court had jurisdiction to consider
the transfer decision under former Code ? 16.1-269 and the
juvenile court’s May 13, 1994 transfer order. Thus, the circuit
court’s order of September 1, 1994, which authorized the
Commonwealth to seek an indictment in the case, confirmed the
juvenile court’s transfer decision and completed the
jurisdictional transfer of Roach’s offenses to the circuit court
in compliance with the provisions of former Code
? 16.1-269. We conclude, therefore, that the statutory
notice requirements for a transfer hearing, recognized by this
Court in Baker, were fully satisfied in the present case.

For these reasons, we will deny Roach’s
petition for a writ of habeas corpus.

Writ denied.

 

FOOTNOTES:

[1] Roach raised the same claims in a
petition for writ of coram vobis filed in the circuit court. That
court denied his petition by order dated July 30, 1999. Roach’s
appeal of the circuit court order is pending in this Court and
has been consolidated with this habeas corpus proceeding. See
Roach v. Commonwealth of Virginia, Record. No. 991817. We
will decide the coram vobis appeal separately by order and, for
reasons not germane to this appeal, we will affirm the circuit
court’s judgment in that case.

[2] Effective July 1, 1994, the
statutes governing the transfer of juveniles were repealed and
replaced with new statutes. See 1994 Va. Acts of Assembly,
ch. 859 and ch. 949.

[3] Roach’s argument that the
juvenile court failed to make this probable cause determination
is without merit, because the argument is based on Roach’s
unsupported allegation that the court failed to decide the
admissibility of his statement in the week after the transfer
hearing before entering the May 13, 1994 order.

 

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