Asby v. Commonwealth

539 S.E.2d 742, 34 Va. App. 217, 2001 Va. App. LEXIS 4, 2001 WL 15322
CourtCourt of Appeals of Virginia
DecidedJanuary 9, 2001
DocketRecord 0176-00-1
StatusPublished
Cited by6 cases

This text of 539 S.E.2d 742 (Asby v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Asby v. Commonwealth, 539 S.E.2d 742, 34 Va. App. 217, 2001 Va. App. LEXIS 4, 2001 WL 15322 (Va. Ct. App. 2001).

Opinions

ELDER, Judge.

Via a motion to set aside the judgment, Paul Trevor Asby (appellant) challenges his 1996 convictions for murder, malicious wounding, and use of a firearm in the commission of both murder and malicious wounding. Appellant contends the circuit court lacked jurisdiction to convict him because he was a [219]*219juvenile at the time of the alleged offenses and the record failed to establish that his father received notice of institution of the juvenile proceedings which resulted in his transfer to circuit court for trial as an adult. We hold, pursuant to the Supreme Court’s recent ruling in Johnson v. Commonwealth, 259 Va. 654, 529 S.E.2d 769 (2000), that appellant’s conviction as an adult on January 29, 1996, for the unrelated offense of attempted grand larceny, committed while he was a juvenile, divested the juvenile and domestic relations district court (J & DR court) of jurisdiction over the subject offenses, which were then pending in the J & DR court. Thus, appellant no longer had a right to any proceedings in the J & DR court on those offenses, and the purported lack of notice to his father of the initiation of the juvenile proceedings did not invalidate the indictments for the subject offenses, which were subsequently issued in the circuit court. For these reasons, we affirm the circuit court’s denial of appellant’s motion to set aside the judgment without addressing the Commonwealth’s other arguments.

I.

BACKGROUND

Appellant was born on September 18, 1977. On August 28, 1994, when appellant was sixteen years old, he committed the murder, malicious wounding and firearm offenses at issue here. On January 5, 1996, when appellant was eighteen years old, the Commonwealth obtained juvenile petitions charging him with these four offenses. At the time of appellant’s February 27, 1996 transfer hearing for these offenses, appellant had outstanding charges for unrelated juvenile offenses— attempted grand larceny and possession of burglary tools. On November 18, 1995, these charges were “transfer[red] to circuit court for trial as an adult.” The Commonwealth’s attorney represented that, as of February 27, 1996, appellant had pleaded guilty at least to the attempted grand larceny charge and that he was then awaiting sentencing on that charge in the circuit court. The subsequently filed presen[220]*220tence report indicated that appellant was convicted in circuit court for both the larceny and burglary tools offenses on January 29, 1996, and sentenced for these offenses on March 20, 1996.1 Appellant’s counsel posed no objections in the trial court to the Commonwealth’s oral and written representations regarding these unrelated offenses.

After hearing the Commonwealth’s evidence on the murder, malicious wounding and firearms charges allegedly committed on August 28, 1994, the J & DR court found probable cause and certified the four offenses for further proceedings in circuit court. Indictments were issued on April 3, 1996, and appellant was tried, convicted and sentenced for those offenses.

In late 1999, appellant filed the present motion to set aside judgment on the subject offenses based on lack of notice to his father pursuant to 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). The circuit court denied appellant’s motion, holding that Baker did not require the vacation of appellant’s conviction because appellant was an adult when charged with the offenses at issue.

II.

ANALYSIS

A.

COMMONWEALTH’S MOTION TO TRANSFER TO SUPREME COURT

The Commonwealth contends this Court lacks jurisdiction to consider a motion to vacate a final judgment in a criminal case and, therefore, that we should transfer the appeal to the Virginia Supreme Court pursuant to Code [221]*221§ 8.01-677.1. The cases upon which the Commonwealth relies are distinguishable, and we conclude that appellate jurisdiction properly lies in this Court.

Virginia Department of Corrections v. Crowley, 227 Va. 254, 316 S.E.2d 439 (1984), which was decided before the Court of Appeals came into being, addressed whether “the jurisdictional question [involved in the denial of related motions to vacate was] ripe for appellate review on the merits” and required resolution of the question whether the proceedings instituted by the motions to vacate were civil or “merely another stage in the course of a continuing criminal prosecution.” Id. at 261-62, 316 S.E.2d at 443. In that context, the Court held the proceedings on the motions to vacate were civil in nature and, therefore, were properly before the Supreme Court. See id. at 262-63, 316 S.E.2d at 443 — 44.

We have since confronted more directly the issue of our jurisdiction over appeals which contain both civil and criminal components. See Nicely v. Commonwealth, 23 Va.App. 327, 477 S.E.2d 11 (1996) (involving administrative license suspension and related DUI charge). We concluded that the classification of “the underlying charge” as criminal governed our appellate jurisdiction, despite the fact that the dispositive issue on appeal was civil. See id. at 329 n. 1, 477 S.E.2d at 12 n. 1 (citing Brame v. Commonwealth, 252 Va. 122, 125, 476 S.E.2d 177, 179 (1996) (holding that appellate jurisdiction rested in Supreme Court because nature of underlying charge was civil)).

Applying these principles to appellant’s case, we hold that appellate jurisdiction properly lies in this Court because, although a motion to vacate or set aside a conviction may be civil in nature, the underlying charges here were criminal.

B.

SCOPE OF APPELLANT’S ASSIGNMENT OF ERROR ON APPEAL

The Commonwealth contends appellant’s assignment of error on appeal consists only of the contention that his father [222]*222did not receive notice of the transfer hearing and does not cover the lack of notice to his father of initiation of the juvenile proceedings as a whole. We disagree. Appellant’s assignment of error refers specifically to Code §§ 16.1-263 and -264 and appellant’s motion to vacate of November 29, 1999. The legal arguments in the motion relate directly to “the mandatory notice requirements of Code Sections 16.1-263 and 16.1-264 concerning the initiation of proceedings against a juvenile” via “service of summonses [on] the ‘parents’ of a juvenile,” as addressed in Baker. Further, the trial court’s ruling on the motion relates specifically to the impact of failure to serve appellant’s father with the juvenile petition rather than notice of the transfer hearing. Therefore, the reasonable import of appellant’s assignment of error sufficiently covers the issue of the initiation of the juvenile proceedings to allow us to address this issue on appeal.

C.

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Cite This Page — Counsel Stack

Bluebook (online)
539 S.E.2d 742, 34 Va. App. 217, 2001 Va. App. LEXIS 4, 2001 WL 15322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/asby-v-commonwealth-vactapp-2001.