Nelson v. Warden of the Keen Mountain Correctional Center

552 S.E.2d 73, 262 Va. 276, 2001 Va. LEXIS 94

• Court: Supreme Court of Virginia
• Decided: September 14, 2001
• Docket: Record No. 002301
• Status: Published

Opinions

CHIEF JUSTICE CARRICO

delivered the opinion of the Court.

This case involves a “Baker claim,” i.e., one arising from this Court’s decision in Commonwealth v. Baker, 258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), aff’g Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394 (1998) (failure to notify juvenile’s parents of proceedings in juvenile court renders void subsequent criminal convictions in circuit court).¹ The present claim is asserted in an original petition for a writ of habeas corpus filed in this Court by Robert Nelson, Jr. (Nelson), against the Warden of the Keen Mountain Correctional Center (the Warden).

According to the allegations of the petition, Nelson was arrested in January 1985 at the age of seventeen for two counts of armed robbery, two counts of abduction, one count of receiving stolen property, and one count of sexual assault. He was “arraigned” in the Juvenile and Domestic Relations District Court of Fairfax County and then brought before that court in March 1985 for a transfer hearing. The juvenile court transferred him to the Circuit Court of Fairfax County for trial as an adult. He pled guilty to the offenses in circuit court and was sentenced to serve forty-eight years in the penitentiary.

Nelson alleges in his habeas petition that his father was not notified of the initiation of the proceedings in juvenile court or of the transfer hearing.² Nelson alleges that the juvenile court’s failure to notify his father of the proceedings rendered his convictions in the circuit court unlawful and void.³

Nelson not only invokes our decision in Baker II but also our decision in David Moore v. Commonwealth, 259 Va. 431, 527 S.E.2d 406 (2000). In Baker II, we affirmed the judgment of the Court of Appeals “[f]or the reasons set forth in the opinion of” that court. 258 Va. at 2, 516 S.E.2d at 220. In its judgment, the Court of Appeals reversed the criminal convictions of a seventeen-year-old defendant, stating that “[bjecause the notice of the initiation of juvenile proceedings was not properly served on the required parties, the transfer of jurisdiction [to the circuit court] was ineffectual and the subsequent convictions are void.” 28 Va. App. at 315, 504 S.E.2d at 399.

In David Moore, we applied Baker II and held that, because of the failure to notify the defendant’s father of the initiation of juvenile court proceedings, “the juvenile court. . . never acquired the authority to exercise its jurisdiction to conduct the transfer hearing that resulted in the transfer of Moore’s case to the circuit court. Accordingly, the circuit court never acquired the authority to exercise its jurisdiction to try Moore for the criminal offenses charged in the indictments, and Moore’s convictions in the circuit court are void.” David Moore, 259 Va. at 440, 527 S.E.2d at 411.

Nelson argues that his case “falls squarely within the rule enunciated by this Court” in Baker II and David Moore, that his convictions, therefore, are void, and that habeas corpus is a proper method of redress. Nelson argues further that, because his convictions are void, they are subject to attack “at any time, in any way, by anybody, whether the attack be direct or collateral,” and, accordingly, his petition for a writ of habeas corpus is not barred by the statute of limitations contained in Code § 8.01-654(A)(2).⁴

For his part, the Warden contends that Nelson’s petition for a writ of habeas corpus is barred by the statute of limitations contained in Code § 8.01-654(A)(2). However, the Warden makes the overriding argument that this Court should “take the opportunity to clarify the area of the law concerned in this [case], hold that lack of notice to a parent in juvenile court proceedings renders a judgment voidable and not void and overrule the prior decisions in David Moore and Baker to the extent they hold otherwise.” We will consider this argument first.

The Warden’s argument implicates, of course, the principles of stare decisis. In Selected Risks Ins. Co. v. Dean, 233 Va. 260, 355 S.E.2d 579 (1987), we stated as follows:

In Virginia, the doctrine of stare decisis is more than a mere cliche. That doctrine plays a significant role in the orderly administration of justice by assuring consistent, predictable, and balanced application of legal principles. And when a court of last resort has established a precedent, after full deliberation upon the issue by the court, the precedent will not be treated lightly or ignored, in the absence of flagrant error or mistake.

Id. at 265, 355 S.E.2d at 581. “Our strong adherence to the doctrine of stare decisis does not, however, compel us to perpetuate what we believe to be an incorrect application of the law.” Nunnally v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129 (1997).

In David Moore, this Court undertook to explain its decision in Baker II. David Moore, 259 Va. at 434, 527 S.E.2d at 407 (“[t]he primary focus of this appeal is a determination of the scope of our recent decision in [Baker //]).” While neither the Court of Appeals’ opinion in Baker I nor ours in Baker II mentioned the phrase “subject matter jurisdiction,” we made a point in David Moore of “emphasizing the necessary distinction to be drawn . . . between the power of a court to adjudicate a specified class of cases, commonly known as ‘subject matter jurisdiction,’ and the authority of a court to exercise that power in a particular case.” Id. at 437, 527 S.E.2d at 409.

We said that “[s]ubject matter jurisdiction is granted by constitution or statute,” that “[i]t cannot be waived,” that “any judgment rendered without it is void ab initio,'1'’ and that “lack of subject matter jurisdiction ‘may be raised at any time, in any manner, before any court, or by the court itself.’ ” Id. (quoting Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 893 (1947)). We made plain, however, that the lack of subject matter jurisdiction was not at issue in David Moore. Rather, we said that the issue was “the unique statutory framework whereby a juvenile court and in turn a circuit court acquire the authority to exercise their subject matter jurisdiction.” 259 Va. at 438, 527 S.E.2d at 409. (Emphasis added.)

After noting the Court’s emphasis on the distinction between subject matter jurisdiction and the authority to exercise that jurisdiction, the Court’s next step should have been to demonstrate the difference resulting from the distinction. Yet, we made a distinction without a difference for, with our very next step, we elevated the failure of a court to comply with the requirements for exercising its authority to the same level of gravity as a lack of subject matter jurisdiction.

We stated that “ ‘[a] court’s authority to exercise its subject matter jurisdiction over a case may be restricted by a failure to comply with statutory requirements that are mandatory in nature and, thus, are prerequisite to a court’s lawful exercise of that jurisdiction.’ ” Id. at 437, 527 S.E.2d at 409 (quoting Dennis Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d 415, 417 (2000)).⁵ In other words, we made the statutory requirements both mandatory and jurisdictional. We also made clear that the requirements were not subject to waiver by the juvenile’s failure to object to a defect in the proceedings. David Moore, 259 Va. at 439, 527 S.E.2d at 410.

We are of opinion David Moore is flawed by our failure to recognize that, in the legal and factual framework in which the decision was made, a different outcome should have resulted from the distinction we drew between subject matter jurisdiction and the authority to exercise that jurisdiction. Analysis of the framework begins with our decision in Peyton v. French, 207 Va. 73, 147 S.E.2d 739 (1966), cited in both Baker I and David Moore.

In Peyton v. French, the juvenile court “certified” a sixteen-year-old juvenile to the circuit court for trial on larceny and breaking and entering charges. Neither of the juvenile’s parents was present, they had not received any notice to appear, and a guardian ad litem was not appointed to represent the juvenile. He was convicted in circuit court and sentenced to the penitentiary. We said “the failure of the juvenile court to comply with the applicable statutes rendered the circuit court proceedings void.” Id. at 80, 147 S.E.2d at 743. Similar results were reached under like circumstances in Gregory v. Peyton, 208 Va. 157, 156 S.E.2d 624 (1967), Gogley v. Peyton, 208 Va. 679, 160 S.E.2d 746 (1968), Pruitt v. Peyton, 209 Va. 532, 165 S.E.2d 288 (1969), and Jones v. Commonwealth, 213 Va. 425, 192 S.E.2d 775 (1972), all referring back to Peyton v. French.

As Justice Kinser’s dissent in David Moore aptly points out, while we did not specify in Peyton v. French and its progeny that we were considering subject matter jurisdictional defects, the question of the juvenile court’s subject matter jurisdiction was implicated because we allowed the defendants in those cases to mount collateral attacks upon their convictions. David Moore, 259 Va. at 444, 527 S.E.2d at 413. And as the dissent further notes, there were two statutory provisions in effect at the time the Peyton v. French line of cases was decided that rendered the defects jurisdictional rather than procedural. Id. at 445, 527 S.E.2d at 413-14.

Former Code § 16.1-172 provided that “[i]n no case shall the hearing proceed until the parent or parents of the child . . . have been notified.” (Emphasis added.) And former Code § 16.1-173 provided that when no person required to be notified by former Code § 16.1-172 was present for the hearing, the “court shall, before proceeding with the hearing, appoint a . . . guardian ad litem to represent the interests of the child.” (Emphasis added.)

However, beginning in 1968, the General Assembly made a series of dramatic changes in the jurisdictional aspect of the notice requirements of the juvenile statutes. That year, the General Assembly deleted from former Code § 16.1-173 the requirement that the “court shall, before proceeding with the hearing,” appoint a guardian ad litem when no person required to be notified was present at the hearing. And, in 1977, the General Assembly removed from former Code § 16.1-172 the provision that “[i]n no case shall the hearing proceed” until the juvenile’s parent or parents have been notified. Significantly, the General Assembly has not replaced the language deleted from former Code §§ 16.1-172 and -173 with anything remotely suggesting an intention to re-institute a jurisdictional requirement in the notice provisions of the juvenile statutes.

In 1973, the General Assembly enacted Code § 16.1-176.2 (now Code § 16.1-270). This new section provided that at any time prior to a transfer hearing, “a child . . ., with the written consent of his counsel, may elect in writing to waive the jurisdiction of the juvenile court and have his case transferred to the appropriate court of record.” (Emphasis added.)

Furthermore, subsequent decisions of this Court substantially impacted the jurisdictional aspect of the notice requirements of the juvenile statutes. In 1976, prompted in large part by the enactment of Code § 16.1-176.2 permitting a juvenile to waive the jurisdiction of the juvenile court, this Court decided that a statutory provision stating that the juvenile court shall give parents notice in writing of a transfer hearing was procedural and not jurisdictional in nature. Turner v. Commonwealth, 216 Va. 666, 222 S.E.2d 517 (1976). We said, “especially is the jurisdictional argument negated by the . . . provision that the transfer hearing itself may be waived.” Id. at 669, 222 S.E.2d at 520. As a result, we held that “any departure from [the] requirement [of written notice] 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 519.⁶

In Jamborsky v. Baskins, 247 Va. 506, 442 S.E.2d 636 (1994), the circuit court failed to comply with the then current juvenile transfer statute, which provided that the circuit court shall, within twenty-one days after receipt of the case from juvenile court, conduct an examination to determine if there had been compliance with the statute. Code § 16.1-269(E) (repealed by 1994 Va. Acts ch. 859 and 949) (see present Code § 16.1-269.6(B)). The Court of Appeals issued a writ of prohibition against further proceedings in the circuit court, holding that the twenty-one day requirement was mandatory and jurisdictional. We reversed, holding that the twenty-one day provision was “directory and procedural, rather than mandatory and jurisdictional.” Id. at 511, 442 S.E.2d at 639.

Under the doctrine of stare decisis, we are not obliged to uphold a decision that is itself at odds with precedent previously established by this Court “after full deliberation upon the issue,” Selected Risks, 233 Va. at 265, 355 S.E.2d at 581, that fails to give proper effect to “the interposition of legislative power,” Postal Telegraph-Cable Co. v. Farmville & Powhatan R.R. Co., 96 Va. 661, 662, 32 S.E. 468, 469 (1899), and that “has produced ‘confusion,’ ” United States v. Dixon, 509 U.S. 688, 711 (1993). David Moore suffers from all of these ills.

David Moore is at odds with Turner, Jamborsky, and Morrison, precedents previously established by this Court after full deliberation upon the issues and never overruled. It fails to give proper effect to the interposition of legislative power, exemplified by the substantial statutory changes evincing legislative intent to make the notice provisions of the juvenile statutes procedural and not jurisdictional. And it certainly has produced confusion among the bench and bar of this Commonwealth.

We indicated supra that we thought a different outcome should have resulted in David Moore from the distinction we drew between subject matter jurisdiction and the authority to exercise that jurisdiction. In our opinion, the different outcome should have consisted of a finding that the statutory requirement of notice to parents was not jurisdictional but procedural in nature, that a failure to notify parents could be waived by a failure to object, and, correspondingly, that a failure to comply with the requirement rendered subsequent convictions voidable and not void. To the extent David Moore conflicts with these views, it is overruled.

Baker, however, should not suffer the same fate. The voiding of Baker’s convictions was predictable. In this context, a matter is void either because it has been null from the beginning (void ab initio) or because it is declared null although seemingly valid until that point in time (voidable). See Black’s Law Dictionary 1568 (7th ed. 1999). Neither the Court of Appeals nor this Court classified Baker’s convictions as void ab initio, and they were not void ab initio because David Moore makes clear that both the juvenile court and the circuit court in Baker possessed subject matter jurisdiction. David Moore, 259 Va. at 437-38, 527 S.E.2d at 409. But when the Court of Appeals determined that Baker’s father was not given the notice required by the version of Code § 16.1-263(A) then in effect and, significantly, it was clear Baker had preserved the error both by filing in circuit court a motion to dismiss before he was indicted and by timely raising the issue on appeal, the Court of Appeals was bound to declare void what theretofore had been merely voidable.

In contrast, Nelson did not preserve the error in the juvenile court’s failure to give his father notice and did not raise the issue until he filed his petition for a writ of habeas corpus in this Court. Because Nelson’s convictions were merely voidable, his failure to raise the issue in a timely manner constitutes a waiver of the error and results in the dismissal of his petition. In light of this disposition, we do not reach any of the other issues in the case.

Petition dismissed.

1 For convenience, we will refer to the Court of Appeals’ decision as Baker I and our decision as Baker II or, collectively, as Baker.

2 Nelson makes no complaint about notice to his mother.

3 At the time of the juvenile proceedings in this case, Code § 16.1-263(A) provided that “[ajfter a petition has been filed, the court shall direct the issuance of summonses, one directed to the child, . . . and another to the parents . . . .” At its 1999 session, the General Assembly substituted “at least one parent” for “the parents” in § 16.1-263(A). 1999 Va. Acts ch. 952.

Code § 16.1-263(E) provides that “[n]o such summons or notification shall be required if the judge shall certify on the record that... the identity of [the father] is not reasonably ascertainable.” The judge made no such certification in this case.

Code § 16.1-264(A) provides that if a person other than the juvenile defendant cannot be found or his post office address cannot be located, the court may order service of the summons upon him by publication.

4 Code § 8.01-654(A)(2) provides that a habeas corpus petition attacking a criminal conviction or sentence, except for cases in which a death sentence has been imposed, “shall be filed within two years from the date of final judgment in the trial court or within one year from either final disposition of the direct appeal in state court or the time for filing such appeal has expired, whichever is later.” This statute became effective July 1, 1998. We allowed petitioners whose time for filing would have expired prior to the effective date of the statute an extra year, or until June 30, 1999, for the filing of petitions for habeas corpus. Final judgment on Nelson’s convictions was entered in June 1985. He did not file his petition until September 21, 2000, beyond the statutory period and the extra year. Of course, he takes the position his case is not subject to the statute.

5 Dennis Moore and David Moore are two different defendants. Dennis Moore involved Code § 16.1-269.6(E), which provides that “[a]ny objection to the jurisdiction of the circuit court pursuant to [Article 7 of Chapter 11 of Title 16.1] shall be waived if not made before arraignment.” This Court said in David Moore that the section was inapplicable because it relates to a defect in a transfer hearing while David Moore claimed a defect in the initiation of the juvenile proceedings. David Moore, 259 Va. at 440, 527 S.E.2d at 411. Another statute, Code § 16.1-269.1(E), addresses defects in the initiation of juvenile proceedings. It provides that “[a]n indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile’s age.” However, both § 16.1-269.1(E) and § 16.1-269.6(E) apply only to offenses committed after July 1, 1996. As noted supra in the text, Nelson’s offenses were committed in 1985.

6 The view expressed in David Moore that the notice requirements of the juvenile statutes are jurisdictional in nature and cannot be waived is contradicted by Morrison v. Bestler, 239 Va. 166, 387 S.E.2d 753 (1990). After noting that “there is a significant difference between subject matter jurisdiction and the other ‘jurisdictional’ elements,” including notice jurisdiction, we stated that “[sjubject matter jurisdiction alone cannot be waived.” Id. at 169, 387 S.E.2d at 755.