COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Willis and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

LOC T. DUONG, S/K/A 

 LOC TUAN DUONG 

 OPINION BY 

v. Record No. 0522-00-4 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 27, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

David T. Stitt, Judge 

 Kimberly J. Phillips, Assistant Public 

Defender (James G. Connell, III, Assistant 

Public Defender; Office of the Public 

Defender, on briefs), for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Pursuant to his guilty plea, Loc Tuan Duong was convicted of 

two counts of grand larceny in violation of Code § 18.2-95. He 

was sentenced to three years imprisonment with two years 

suspended on each count. On appeal, he contends that the trial 

court erred in considering at sentencing several juvenile 

adjudications that were void under the holding in Baker v. 

Commonwealth, 28 Va. App. 306, 505 S.E.2d 394 (1998), aff'd per

curiam, 258 Va. 1, 517 S.E.2d 219 (1999). For the reasons that 

follow, we reverse the judgment of the trial court and remand 

the case for resentencing. 
I. BACKGROUND

 On November 23, 1994, while Duong was a juvenile, the 

Commonwealth filed two petitions in the Juvenile and Domestic 

Relations District Court of Fairfax County (juvenile court) 

charging him with receiving stolen goods and failure to appear. 

The petitions listed Duong's mother's name and address. On the 

line for Duong's father's name and address, the petitions read, 

"Houng, Lac -- SAC." Duong was adjudicated delinquent pursuant 

to these petitions. 

 On January 18, 1995, while Duong was a juvenile, the 

Commonwealth filed three petitions in the juvenile court 

charging him with one count of breaking and entering and two 

counts of grand larceny. The petitions listed Duong's mother's 

name and address. On the line for Duong's father's name and 

address, the petitions read, "Houng, Loc, Address Unknown to 

Petitioner." Duong was adjudicated delinquent pursuant to these 

petitions. 

 On November 22, 1999, being then an adult, Duong pled 

guilty in the trial court to two counts of grand larceny. The 

pleas were entered pursuant to a plea agreement, which provided 

that the court would sentence Duong within the range set by the 

Virginia Sentencing Guidelines. The trial court accepted the 

plea agreement and the pleas and, upon hearing a representation 

of the evidence, convicted Duong of grand larceny. On Duong's 

request, the court ordered a presentence report. 

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 Prior to sentencing, Duong moved to preclude consideration 

of his juvenile adjudications because no notice had been given 

to his father and, therefore, those adjudications were void 

under the holding in Baker. The parties agreed that Lac Houng 

or Loc Houng, listed on the 1994 and 1995 petitions as Duong's 

father, was his stepfather, not his biological or legal father. 

The trial court denied the motion, ruling that Duong sought to 

make an impermissible collateral attack on the juvenile court 

adjudications. 

 At sentencing, the trial court made Duong's juvenile court 

record a part of the proceeding. Duong argued that the juvenile 

court record showed neither notice having been given to his 

father nor any finding as to why notice could not have been 

given. See Code § 16.1-263(A). The court again rejected 

Duong's contention, ruling that he could not collaterally attack 

his juvenile adjudications and that the sentencing guidelines 

were voluntary, not mandatory. The trial court sentenced Duong 

to three years imprisonment with two years suspended on each 

count,1 the sentences to be served consecutively. 

 Duong contends that because his father was not given notice 

of the juvenile proceedings against him, his juvenile 

 1

 Considering the 1994 and 1995 juvenile adjudications, the 

sentencing guidelines set the range of punishment at one year, 

seven months, to three years, eleven months. If the juvenile 

adjudications were not considered, the guidelines called for 

probation and no imprisonment. 

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adjudications are void and, therefore, could not be considered 

in sentencing him on the larceny charges. We agree. 

II. ANALYSIS

 Code § 16.1-263(A) states that "[a]fter a petition has been 

filed, the court shall direct the issuance of summonses . . . to 

the parents . . . ." Id.2 "We have held that 'compliance with 

[Code § 16.1-263] relating to procedures for instituting 

proceedings against juveniles, are mandatory and jurisdictional. 

The failure to strictly follow the notice procedures contained 

in the Code [deny the defendant] a substantive right and the 

constitutional guarantee of due process.'" Weese v. 

Commonwealth, 30 Va. App. 484, 489, 517 S.E.2d 740, 743 (1999) 

(quoting Karim v. Commonwealth, 22 Va. App. 767, 779, 473 S.E.2d 

103, 108-09 (1996) (en banc)). Thus, we have held that where a 

juvenile court conducts a delinquency proceeding without 

notifying the parents or certifying that notice cannot 

reasonably be obtained, a resulting conviction order is void. 

See Baker, 28 Va. App. at 315, 504 S.E.2d at 399; Williams v. 

Commonwealth, 26 Va. App. 776, 781-82, 497 S.E.2d 156, 159 

(1998); Karim, 22 Va. App. at 779-80, 473 S.E.2d at 108-09. 

 2

 Although inapplicable here, effective July 1, 1999, Code 

§ 16.1-263 was amended to permit the issuance of summonses to 

"at least one parent" in lieu of the previous requirement that 

summonses be served on "the parents." See 1999 Va. Acts, c. 

952. 

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 The juvenile court did not give notice of the proceedings 

against Duong to his father or certify on the record that such 

notice could not reasonably be given. Therefore, Duong's prior 

juvenile adjudications are void, and the trial court erred in 

considering them when sentencing Duong on the grand larceny 

charges. 

 The Commonwealth notes that Duong did not seek, in this 

proceeding, to have his juvenile court adjudications voided and 

thus extinguished. It argues that he cannot refrain from having 

those adjudications ruled void while at the same time arguing 

that they are void for the purpose of subsequent sentencing. We 

disagree. A determination and adjudication that the earlier 

convictions were void and extinguishing them as such would 

require a direct attack on those adjudications in a properly 

structured proceeding. This is not such a case and is not an 

appropriate vehicle for such a direct attack. However, the 

failure to have those adjudications officially voided does not 

alter the fact that they are void and cannot be used against 

Duong. 

 The Commonwealth argues that the sentencing guidelines are 

discretionary and that the failure of a trial court to comply 

with any or all of their provisions is not subject to appeal. 

See Code § 19.2-298.01. It argues that the sentences imposed 

were within the limits provided by law for the offenses for 

which Duong pled guilty and, therefore, are sentences that the 

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trial court was authorized to impose. Had Duong simply pled 

guilty, this argument would be persuasive. However, he pled 

guilty pursuant to a plea agreement, which was accepted by the 

trial court. The plea agreement expressly provided that the 

sentence imposed would be within the limits prescribed by the 

guidelines. Having accepted the plea agreement, the trial court 

was bound by this provision. 

 For these reasons, we reverse the judgment of the trial 

court and remand this case for resentencing. 

 Reversed and remanded.

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