Leavell v. Commonwealth

548 S.E.2d 234, 36 Va. App. 16, 2001 Va. App. LEXIS 396

• Court: Court of Appeals of Virginia
• Decided: July 3, 2001
• Docket: Record No. 1226-00-1
• Status: Published

Opinions

FRANK, Judge.

Citing Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999), Bennie E. Leavell, Jr. (appellant), contends the trial judge erred by refusing to vacate his criminal conviction and to order a new trial. He claims his father did not have notice of the juvenile proceedings. For the reasons that follow, we affirm the trial judge’s order.

I. BACKGROUND

The record establishes that on October 23, 1990, petitions were filed in the Juvenile and Domestic Relations District Court for the City of Norfolk charging that appellant, a juvenile, committed the offenses of capital murder, robbery, and use of a firearm to commit a felony. The petitions indicate appellant’s address was 4826 Old Wick Court, Virginia Beach. The petitions list his father as Bennie E. Leavell, Sr., and indicate his father’s address was also 4826 Old Wick Court. Appellant’s mother’s address is shown as East Berkley Avenue, Norfolk. On October 29, 1990, at 1:00 a.m., the police arrested appellant and charged him with those offenses. The detention order contains notations that appellant was taken into custody “on 10/29/90” and that his “Parents [were] notified on 10/29/90.”

Appellant’s initial hearing was scheduled for 9:45 a.m. in the juvenile court on the day of his arrest. At that hearing, the judge continued the matter to December 3, 1990. At a hearing on December 3, 1990, the juvenile court judge transferred jurisdiction to the circuit court. The transfer order, which was substantially a pre-printed form, indicated that the “transfer hearing was conducted pursuant to proper notice to the juvenile [and] the juvenile’s parents.” According to the transcript of the transfer hearing, appellant’s mother was present in juvenile court at the transfer hearing. On October 24,1991, a jury in the circuit court convicted appellant of first-degree murder and robbery. The circuit court judge sentenced him on July 11,1992.

On November 8, 1999, appellant filed in the circuit court a motion to vacate the judgment or, in the alternative, for a new trial. The motion alleged that appellant’s father was not given notice of the proceedings that led to his convictions. Attached to the motion was an affidavit by appellant’s father, dated July 29, 1999, in which he asserts that in 1990, and for two years preceding that year, he lived in the 1100 block of Wellington Street in Norfolk, that he has lived in Norfolk at all times since then, that his whereabouts have been known to appellant and appellant’s mother, and that he “was not notified by the Norfolk Juvenile and Domestic Relations Court nor any other Court regarding the criminal prosecution or any legal proceeding against ... [appellant] ..., either orally or in writing.”

The Commonwealth’s response to appellant’s motion alleged that the detention order, dated the day of appellant’s arrest, contains the notation, “Parents notified on 10/29/90,” that the transfer order recites “proper notice ... [was given to] the juvenile’s parents,” and that the father’s affidavit “does not claim that he did not in fact know about the hearing.” The Commonwealth’s response also alleged that appellant’s father was arrested on an unrelated charge on March 26, 1989, at which time his address was listed on the criminal records form bearing his fingerprints as “4826 Old Witch Ct., Virginia Beach, VA.” In addition, the Commonwealth represented in its response that the homicide investigator would testify “that [appellant’s father] was present in Juvenile Court and was aware of [appellant’s] arrest and pending charges.”

The record does not reflect that an ore tenus hearing was requested or held on the motion.¹ Apparently, the matter was submitted upon the pleadings and the record of appellant’s prior conviction. Upon consideration of this record, the trial judge ruled that appellant’s “father was not present” at the transfer hearing but that evidence of the father’s absence from the transfer hearing was not sufficient to prove he did not receive notice of the proceedings. The judge also ruled that the recital in the transfer order, stating notice was given to the parents, was “presumed correct and accurate.” Noting that the father’s affidavit was “made almost ten years after [appellant’s] conviction,” the trial judge ruled that it “does not ... rebut the presumption of accuracy accorded to the ... order.” Thus, the judge ruled that the “transfer order ... is sufficient on its face for [him] to conclude that sufficient notice was given to [appellant’s] father” and denied appellant’s motion. This appeal followed.

II. ANALYSIS

“It is the firmly established law of this Commonwealth that a trial court speaks only through its written orders.” Davis v. Mullins, 251 Va. 141, 148, 466 S.E.2d 90, 94 (1996) (citing Cunningham v. Smith, 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964)). In addition, the Supreme Court has consistently held that “[i]n the absence of objection, we deem the order of the trial court to contain an accurate statement of what transpired.... [A]nd we presume that the order, as the final pronouncement on the subject, ... accurately reflects what transpired.” Stamper v. Commonwealth, 220 Va. 260, 280-81, 257 S.E.2d 808, 822 (1979) (citations omitted). The principle is equally well established that “[i]n those cases where the jurisdiction of the court depends upon compliance with certain mandatory provisions of law, the court’s order, spread upon its order book, must show such compliance or jurisdiction is not obtained.” Cunningham, 205 Va. at 208, 135 S.E.2d at 773 (citations omitted). “[T]he statutory requirement of parental notice of the initiation of proceedings in the juvenile court, under various former versions of what is now Code § 16.1-263, are [sic] mandatory in nature and limit a court’s rightful exercise of its subject matter jurisdiction.” David Moore v. Commonwealth, 259 Va. 431, 438, 527 S.E.2d 406, 409-10 (2000) (citations omitted).

The transfer order unambiguously recites that the “transfer hearing was conducted pursuant to proper notice to the juvenile, [and] the juvenile’s parents.” Adding to the presumption of correctness of that order is the notation on the detention order that appellant was taken into custody “on 10/29/90” and that his “Parents [were] notified on 10/29/90.”

As the trial judge found, the affidavit executed by appellant’s father and filed with the motion for a new trial contains stark omissions. Nowhere does the affidavit assert that appellant’s father did not know of the hearing or that he was not present at the hearing. We hold, therefore, that the trial judge did not err in ruling that the evidence failed to rebut the presumption of correctness of the order. Accordingly, we affirm the order.

Affirmed.

1 . The record does not reflect that appellant asked for a hearing on his motion. Indeed, the motion itself asked that the conviction be vacated or, in the alternative, that appellant be granted a new trial. In appellant’s brief before this Court, he does not ask for a remand to determine the factual basis of his motion. Instead, he only asks that the conviction be vacated. It is apparent that appellant relies on his motion and the affidavit of his father for the relief sought.