THOMAS v. GARRAGHTY



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THOMAS

v.

GARRAGHTY


November 5, 1999

Record No. 991284

DOUGLAS CHRISTOPHER THOMAS

v.

DAVID GARRAGHTY, WARDEN, GREENSVILLE
CORRECTIONAL CENTER

UPON A PETITION FOR A WRIT OF HABEAS CORPUS

Present: All the Justices

OPINION BY JUSTICE BARBARA MILANO KEENAN


Douglas Christopher Thomas was convicted in the
Circuit Court of Middlesex County (circuit court) of capital
murder, first degree murder, and two counts of using a firearm in
the commission of a felony. The first degree murder conviction
was based on the killing of James Baxter Wiseman, II, Code
? 18.2-32, and the capital murder conviction arose from the
killing of Kathy J. Wiseman as a part of the same act or
transaction of killing James Baxter Wiseman, II, Code
? 18.2-31(7). The other two convictions were based on
Thomas’s use of a firearm in the commission of these murders.
Code ? 18.2-53.1. Thomas, who was 17 years old at the time
of these offenses, was sentenced to death on the capital murder
conviction based on the aggravating factor of
"vileness." He also received a sentence of 65 years’
imprisonment for first degree murder and a total of six years’
imprisonment for the two firearms convictions. We affirmed the
trial court’s judgment in Thomas v. Commonwealth, 244 Va.
1, 419 S.E.2d 606, cert. denied, 506 U.S. 958
(1992).

Thomas filed the present petition for a writ of
habeas corpus invoking this Court’s original jurisdiction. He
alleges that his biological father was not provided notice of the
proceedings in the Middlesex County Juvenile and Domestic
Relations District Court (juvenile court) that resulted in his
transfer to the circuit court for trial as an adult, as required
by former Code ? 16.1-263.
[1] He asserts that under our recent holding in Commonwealth
v. Baker
, 258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), the
Commonwealth’s failure to provide such notice created a
jurisdictional defect that rendered his convictions void.

In November 1990, the juvenile court issued
criminal petitions against Thomas in which his mother was
identified as Margaret M. Thomas and his aunt and uncle, Brenda
J. and Herbert Marshall, were identified under the heading,
"guardian, legal custodian or person in loco parentis."
Thomas does not dispute that these three individuals were given
notice of the transfer proceedings in the juvenile court.
Thomas’s father was identified in the petitions as "Robert
Christopher Thomas[,] Whereabouts unknown." No notice of the
juvenile court proceedings was provided to Robert Christopher
Thomas, and the record does not reflect that any effort was made
to locate him.

On the date set for the transfer hearing in the
juvenile court, Thomas and his counsel executed a written
document waiving his right to the hearing. The document stated in
part: "IT IS THE CONCLUSION of the Defendant and his counsel
that the statutory requirements for transfer to Circuit Court are
met and that the waiver of both a probable cause hearing and
transfer hearing is in the best interest of the Defendant."
After informing Thomas of the purpose of a transfer hearing and
asking him questions to determine whether his waiver was
voluntary and intelligent, the juvenile court accepted Thomas’s
waiver pursuant to former Code ? 16.1-270 and transferred
Thomas to the circuit court for further criminal proceedings.
Following the transfer, Thomas was indicted, tried, and convicted
in the circuit court on the four felony charges.

The following facts concerning Thomas’s family
relationships are not in dispute. Thomas’s biological parents,
Margaret M. Thomas and Robert Christopher Thomas, separated in
1973, several months before Thomas was born. They divorced in
1974. In 1982, Thomas was adopted by his maternal grandparents,
Herbert B. Marshall, Sr., and Virginia J. Marshall.

Prior to the adoption, both of Thomas’s
biological parents executed documents indicating their consent to
the adoption. The following handwritten language appeared on the
consent form signed by Thomas’s biological mother:

Also, I would like to know by signing
this paper will Douglas C. Thomas at [my parents'] death
come back to me is why I gave consent for them to have
custody of my son is because [his grandfather] wanted to
put him on his social security & his insurance
papers.

The consent form signed by Thomas’s biological
father contained the following typewritten language:

3) That respondent . . .
would like for the records to reflect that due to serious
illness or death to the [adoptive parents] that the child
be returned to the custody and care of his natural
Mother.

4) That respondent . . .
would also like for the records to reflect that due to
the death or serious illness of the child’s natural
Mother . . . that the child be awarded to the
custody of his natural Father.

In 1985, after both adoptive parents died,
Thomas lived with his biological mother for a period of time. In
1988, he began living with his aunt and uncle, Brenda and Herbert
Marshall, in Middlesex County, where he was residing when he
committed these offenses. During the years after his adoptive
parents died, Thomas did not have a legal guardian or custodian
appointed by any court.

In his petition for a writ of habeas corpus,
Thomas relies primarily on our holding in Baker. There,
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) (emphasis added).
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.

Thomas argues that the circuit court did not
acquire jurisdiction to try him as an adult because the transfer
proceedings in the juvenile court were invalid. He essentially
contends that after the death of his adoptive parents, his
biological mother and father again became his "parents"
and, thus, were entitled under former Code ? 16.1-243 to
notice of the transfer proceedings in the juvenile court. We
disagree with Thomas’s argument.

In 1990, when Thomas was charged with the four
offenses, former Code ? 16.1-263(A) provided, in relevant
part:

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.

In accordance with these provisions, Thomas’s
aunt and uncle, as persons "standing in loco parentis,"
were served with notice of the transfer hearing. This service of
process, along with the notice that was provided to Thomas, fully
complied with the requirements of former Code ? 16.1-263
because, at that time, Thomas had no parents, guardian, or legal
custodian. Under Code ? 63.1-233, the final adoption order
entered in 1982 divested Thomas’s biological parents of all legal
rights and obligations with respect to him. That order, in
conformance with the provisions of the statute, stated that
Thomas was "to all intents and purposes . . . the
child of said petitioners, Herbert B. Marshall and Virginia
Marshall, husband and wife." See Code
? 63.1-233.

We find no merit in Thomas’s contention that
the consent forms executed by his biological parents imposed
limiting conditions on the adoption, which resulted in their
resuming the status of "parents," for purposes of
former Code ? 16.1-263, when the adoptive parents died. The
final adoption order unconditionally divested the biological
parents of all legal rights with respect to Thomas. See
Code ? 63.1-233; Doe v. Doe, 222 Va. 736, 746, 284
S.E.2d 799, 805 (1981); Sozio v. Thorpe, 22 Va. App. 271,
275, 469 S.E.2d 68, 70 (1996); Cage v. Harrisonburg Dept. of
Social Services
, 13 Va. App. 246, 249-50, 410 S.E.2d 405,
406-07 (1991). Since the adoption order was not appealed within
six months after it was entered, its validity is "not
subject to attack in any proceedings, collateral or direct."
Code ? 63.1-237. Thus, Thomas’s biological father was not
his "parent" within the meaning of former Code
? 16.1-263 at the time of the transfer proceedings and was
not entitled to notice under that statute.

Thomas next asserts an alternative argument
that, if he had no parents at the time of the juvenile court
proceedings, "there was a jurisdictional defect in the
transfer proceedings because a person required to be summonsed,
i.e., the legal guardian or guardian ad litem, was
not notified." We disagree with this argument.

First, Thomas had no legal guardian. Second,
there is no requirement that a guardian ad litem be
appointed to represent a juvenile defendant in a transfer
proceeding. We resolved this issue in Wright v. Commonwealth,
245 Va. 177, 184, 427 S.E.2d 379, 384 (1993), vacated on other
grounds
, 512 U.S. 1217 (1994), stating that "[a] defendant under a disability who is represented by counsel need
not have appointed to him a guardian ad litem
unless a statute applicable to a particular case expressly
requires such an appointment." Id. at 183, 427 Va. at
384. We held that because the juvenile transfer statutes (former
Code ?? 16.1-269 to –272) did not expressly require
the appointment of a guardian ad litem for a
juvenile defendant at a transfer hearing, the juvenile defendant
had no such right. Id. Thus, in the present case, we
conclude that the statutory notice requirements for a transfer
hearing, recognized by this Court in Baker, were fully
satisfied.
[2]

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

Writ denied.

 

FOOTNOTES:

[1] Thomas raised the same claim in a
motion for writ of coram vobis filed in the circuit court, which
denied the motion by order dated June 16, 1999. Thomas’s appeal
of the circuit court order is pending in this Court and has been
consolidated with this habeas corpus proceeding. See Thomas
v. Commonwealth of Virginia
, Record. No. 991291. 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] We reject Thomas’s
additional argument that because the transfer petitions listed
Robert Thomas as the defendant’s father, the Commonwealth should
be barred from asserting that Robert Thomas was not the
defendant’s "parent" at the time of the transfer
proceedings. The terms "father" and "parent"
are not synonymous under the facts of this case.

 

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