Karim v. Commonwealth

466 S.E.2d 772, 21 Va. App. 652, 1996 Va. App. LEXIS 96
CourtCourt of Appeals of Virginia
DecidedFebruary 13, 1996
DocketRecord No. 1711-94-4
StatusPublished
Cited by2 cases

This text of 466 S.E.2d 772 (Karim 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
Karim v. Commonwealth, 466 S.E.2d 772, 21 Va. App. 652, 1996 Va. App. LEXIS 96 (Va. Ct. App. 1996).

Opinion

DUFF, Senior Judge.

Khalid Karim was convicted of murder and abduction. At the time of the crimes, Karim was seventeen years old. On appeal, he contends that the circuit court lacked jurisdiction to convict him because the juvenile and domestic relations district court (juvenile court) improperly transferred the case to the circuit court. He also contends that his retrial twice placed him in jeopardy, and that the trial court erred in refusing to grant a mistrial during his retrial. We agree that, by failing to follow mandatory procedures for initiating actions against a juvenile, the juvenile court lacked jurisdiction over this matter. Because the juvenile court lacked jurisdiction to transfer the case to the circuit court, the circuit court did not acquire jurisdiction. Accordingly, the order of conviction is vacated and the case is remanded.

BACKGROUND

Appellant was arrested and charged with multiple offenses relating to a July 31, 1993 shooting incident in which one youth was killed and two others were wounded. On August 5, 1993, Investigator Edward R. Guckenberger filed a petition with the juvenile court asking that appellant, a juvenile, “and the persons having his or her custody and control be summoned to appear before” the juvenile court judge. Guckenberger listed a specific Alexandria address for appellant as [657]*657well as a phone number. In the space for the parents’ names and addresses, Guckenberger wrote “Unknown to Petitioner.”

The juvenile court appointed Marlene Hahn as appellant’s guardian ad litem. A summons was personally served on appellant on August 6, 1993. A copy of the petition was attached to the summons.

The juvenile court record contains an August 6, 1993 order appointing two attorneys (Cassidy and Adams) to represent appellant. The juvenile record also contains a document entitled “Record of Proceedings.” It is signed by the juvenile judge and is dated August 6, 1993. The document indicates “[tjhat Probable Cause to detain is Found,” and the Court ordered that appellant be held at Landmark Detention Center.

On September 22, 1993, the Commonwealth’s Attorney filed a notice of intent to certify appellant for trial as an adult. On October 7, 1993, the juvenile court conducted a hearing “to determine whether or not there is probable cause to believe that an offense had occurred.” The record contains appellant’s motion to dismiss that was filed on October 7, 1993. In that motion, he asserted that the juvenile court failed to follow the notice requirements of Code § 16.1-263.1

The following dialogue took place at the October 7, 1993 hearing:

THE COURT: I just wanted to raise something. When I was going through the pleadings, I couldn’t find the notice of the certification—and I did find that. That’s why— mainly why I had the recess.
And secondly, Mr. Karim, I normally always ask before the hearing—I think this is the first time I’ve never asked in all these years—whether you had a parent here. I don’t think you have a parent here.
[658]*658FONTE (PROBATION OFFICER): Is your stepmom here?
KARIM (Appellant): I have a stepmom, but she’s not here though.
THE COURT: Your dad is living in the District of Columbia?
KARIM: Silver Spring.
THE COURT: Silver Spring, Maryland?
KARIM: Yes, sir.
THE COURT: What is your dad’s name?
KARIM: Syed Karim.
THE COURT: Syed Karim?
KARIM: (Nodding head).
THE COURT: Do you have any way we could contact him?
KARIM: Yes, sir. His work number.
THE COURT: Could you give that to Mr. Fonte?
KARIM: (Number given).
THE COURT: Okay. And is he aware of this proceeding?
KARIM: He knows that I went to court last week. He visited me at the Detention Home, and I told him I was going to court someday this week but I wasn’t sure what the date was.
THE COURT: Okay. And he just decided not to come or—
KARIM: He didn’t know when the exact date was.

The hearing further revealed that appellant’s mother lived in Chicago. However, appellant advised the court that he thought his stepmother, Delta Karim, had legal custody of him. She lived in Alexandria, Virginia, and her address and phone number were known to the probation officer.

At the conclusion of the hearing, the Court made the following finding:

THE COURT: All right—I’m going to go ahead and deny Mr. Cassidy’s motion to strike, and I will make a finding, for probable cause purposes, that the two delinquent acts did occur.
[659]*659And I’ll make a finding that the requirements of 16.1-269a, section 1, 2 and 3a have been met.2 3And I’m going to continue the case for a transfer report and transfer hearing pursuant to section C of 16.1-269.

After ordering the transfer study, the court scheduled the next hearing for December 2, 1993. On November 12, 1993, Sean Coleman was appointed as appellant’s guardian ad litem,.

On November 30, 1993, Probation Officer Frank A. Fonte typed and filed a transfer study/report with the juvenile court. The front sheet of the report contained the following information:

FATHER: Syeed Kharim, (street address listed)
MOTHER: Anita Kharim, Chicago, Illinois
GUARDIAN: Delta Kharim
ADDRESS: (street address listed)

The record does not contain a transcript of the December 2, 1993 transfer hearing. After the hearing, at which Karim’s attorney and guardian ad litem were present, the juvenile judge entered a transfer order. The judge checked boxes for the following statements on the preprinted order:

[660]*660The Court finds from the evidence presented that there is probable cause to believe the juvenile committed the delinquent act alleged.
That the child was fifteen or more years of age at the time of the alleged commission of the offense; the child is competent to stand trial; and the interests of the community require that the child be placed under legal restraint or discipline.
the child is charged with an offense (murder, rape, robbery) for which amenability to treatment or rehabilitation as a juvenile is not a factor in this proceeding.
The Court
TRANSFERS and so certifies the child for proper criminal proceedings to the Circuit Court.

On December 20, 1993, the grand jury indicted appellant. On January 28, 1994, appellant filed notice that he intended to argue a number of pretrial motions, including a motion to dismiss the indictment. On February 4, 1994, appellant argued his motion to dismiss.

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Related

Robert Dale Webb v. Commonwealth
Court of Appeals of Virginia, 1997
Karim v. Commonwealth
473 S.E.2d 103 (Court of Appeals of Virginia, 1996)

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Bluebook (online)
466 S.E.2d 772, 21 Va. App. 652, 1996 Va. App. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/karim-v-commonwealth-vactapp-1996.