COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Overton 

Argued at Richmond, Virginia 

JUSTIN WILLIAMS 

 OPINION BY 

v. Record No. 0754-97-2 JUDGE NELSON T. OVERTON 

 MARCH 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL 

James F. D'Alton, Jr., Judge 

 Jacqueline Waymack (Butterworth & Waymack, on 

brief), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Justin Williams (defendant) appeals his convictions of one 

count of breaking and entering, in violation of Code § 18.2-91, 

one count of robbery, in violation of Code § 18.2-58 and one 

count of trespassing, in violation of Code § 18.2-119. He 

contends the Circuit Court of the City of Hopewell did not have 

jurisdiction to convict him because the juvenile and domestic 

relations district court (juvenile court) did not properly 

transfer him to the circuit court. The transfer was faulty 

because defendant's mother was not served with notice of his 

juvenile transfer hearing as required by Code § 16.1-263. 

Because we agree that the notice requirements for juvenile 

transfer hearings were not complied with, we reverse and remand. 

I. Facts 

 Defendant was charged, and later indicted, for three 
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felonies which occurred on the evenings of June 4 and 15, 1995. 

Defendant was seventeen years of age at the time of the offenses. 

 On October 25, 1995 the Commonwealth, pursuant to Code 

§ 16.1-269.1, notified defendant of the Commonwealth's intention 

to move the juvenile court to transfer defendant to the circuit 

court for trial as an adult. The transfer was eventually set for 

hearing on March 20, 1996. 

 Defendant's many petitions listed three relatives: Sherwood 

Disher, defendant's father; Denise Tudor, defendant's mother; and 

Jeff Tudor, defendant's stepfather. Mr. Disher's address was 

listed as "unknown." Ms. Tudor's residence was listed as 

"Dinwiddie County." Mr. Tudor's full address in the City of 

Hopewell was given. Mr. Disher was never served nor was service 

ever attempted, presumably due to an absence of information as to 

his location. Summonses were issued to Mr. Tudor's address in 

Hopewell for several hearings in October and December 1995 and 

January 1996 but they were all returned with the notation, 

"Moved." The record does not indicate that service upon him was 

attempted for the March 20 transfer hearing. 

 On March 7, 1996 a summons was issued to "Denise Tudor, 4015 

Lee Blvd., Petersburg, VA." The summons was returned by the City 

of Petersburg Sheriff with the notation, "Address not in City," 

and a box with the words, "Not found," checked. Another summons 

listing the same address was subsequently issued to the County of 

Dinwiddie Sheriff. This summons was received by the sheriff on 
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March 20, 1996, at 10:00 a.m., approximately one and one-half 

hours after the transfer hearing commenced. The summons was 

returned with the inscription, "no service." Strangely, 

defendant was served with notice at the same address as his 

mother on March 6, 1996. For whatever reason, the sheriff was 

able to find the residence one day but unable to do so several 

days later. 

 At the transfer hearing were defendant, his attorney and the 

Commonwealth. Neither of defendant's parents was present. The 

judge checked off a box on the transfer order indicating "a 

transfer hearing was conducted pursuant to proper notice pursuant 

to Va. Code §§ 16.1-263 and 16.1-264." He also found that 

defendant was "not a proper person to remain in the juvenile 

court" and transferred him to the circuit court for the proper 

criminal proceedings. 

 Defendant appealed the transfer, arguing that his mother was 

never served with notice of the hearing and, therefore, 

jurisdiction over him was not properly in the circuit court. The 

circuit court held that defendant's parents need not be actually 

notified because "[a]ll the statute requires is . . . the 

issuance of a summons." The circuit court subsequently assumed 

jurisdiction over defendant. On September 18, 1996 defendant 

pled guilty to two felonies and one misdemeanor and was sentenced 

by the court. 

II. Notice of Transfer Hearing 
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 We must decide whether Code § 16.1-263 requires more than 

the simple issuance of a summons. We believe that if the 

pronouncements of this Court and due process are to be honored, 

it does. 

 Code § 16.1-269.1 allows juvenile courts to transfer 

jurisdiction to the circuit court over juveniles "charged with an 

offense which would be a felony if committed by an adult." 

Before such transfer may be completed, a hearing must be held to 

determine whether the defendant is amenable to trial in the 

juvenile court. Code § 16.1-269.1(A). Notice of the hearing 

must be given as prescribed by Code §§ 16.1-263 and 16.1-264. 

 Code § 16.1-263(A) states that "the court shall direct the 

issuance of summonses, one directed to the juvenile . . . and 

another to the parents, guardian, legal custodian or other person 

standing in loco parentis." Code § 16.1-263(D) excuses lack of 

notice if the parent appears at the hearing voluntarily. Code 

§ 16.1-263(E) excuses notice if the judge certifies on the record 

that the identity of the parent is not reasonably ascertainable. 

 Neither Code § 16.1-263(D) nor (E) is applicable here because 

Ms. Tudor's address was known to the juvenile court, and she did 

not appear at the hearing. 

 Code § 16.1-264(A) states that "[i]f a party designated in 

Code § 16.1-263 A to be served with a summons can be found within 

the Commonwealth, the summons shall be served upon him in person 

or by substituted service as prescribed in § 8.01-296(2)." The 
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returned summonses do not reflect that substituted service was 

effected or even attempted by the sheriff. 

 "'Neither man nor child can be allowed to stand condemned by 

methods which flout constitutional requirements of due process of 

law.'" In re Gault, 387 U.S. 1, 13 (1967) (quoting Haley v. 

Ohio, 332 U.S. 596, 601 (1948)). Juveniles have been afforded 

many of the same constitutional guarantees as adults. Indeed, 

"society's special concern for children" leads us to a more 

vigorous examination of proceedings where the young have been 

accused of violating the law. See Kent v. United States, 383 

U.S. 541, 554 (1966). 

 The threshold question before us is whether the court's 

failure to direct notice to defendant's parent was a procedural 

error which did not impact the jurisdiction of the court. See, 

e.g., Peyton v. French, 207 Va. 73, 80, 147 S.E.2d 739, 743 

(1966) ("a preliminary hearing in the juvenile court was 

jurisdictional and not procedural"); Turner v. Commonwealth, 216 

Va. 666, 668, 222 S.E.2d 517, 519 (1976) ("the form of notice and 

method of giving notice are ordinarily considered matters of 

procedural and not substantive due process") (emphasis in 

original). If merely procedural, then defective notice could 

have been waived or cured later in the proceedings. Id. at 669, 

222 S.E.2d at 520. If substantive, then the circuit court did 

not have jurisdiction over defendant and his conviction is void. 

See Cheeks v. Commonwealth, 20 Va. App. 578, 582-83, 459 S.E.2d 
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107, 109 (1995); Jones v. Commonwealth, 220 Va. 666, 672, 261 

S.E.2d 538, 672 (1980). 

 Much of our analysis on that issue has already been 

performed by this Court in Karim v. Commonwealth, 22 Va. App. 

767, 473 S.E.2d 103 (1996) (en banc). In that case, a juvenile 

defendant, Khalid Karim, was transferred from the juvenile court 

to the circuit court for trial as an adult. The juvenile court 

judge had the names and addresses of Karim's father and 

stepmother, who was also Karim's guardian. Yet no notice was 

sent informing them of their son's transfer hearing. This Court 

sitting en banc unanimously held: 

 [C]ompliance with the Code sections at issue 

here, relating to procedures for instituting 

proceedings against juveniles and for 

transferring jurisdiction to a circuit court, 

are mandatory and jurisdictional. The 

failure to strictly follow the notice 

procedures contained in the Code denied 

appellant a substantive right and the 

constitutional guarantee of due process. 

Id. at 779, 473 S.E.2d at 108-09.1

 The law on this point is clear: noncompliance with the 

mandatory notice requirements of the statute necessitates 

reversal of the conviction. See Burfoot v. Commonwealth, 23 Va. 

App. 38, 48, 472 S.E.2d 724, 729-30 (1996). In this case, as in 

Karim, it is not the method or form of the notice that is 

questioned. The form of the summons clearly notified defendant's 

 

 1The Karim court was construing Code § 16.1-269 before it 

was repealed and recodified as Code § 16.1-269.1 et. seq. The 

provisions relevant to this appeal, however, were unchanged. 
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mother of the time and nature of the hearing. Its method of 

service was similarly straightforward: delivery by a sheriff 

employed by the county. It is the timing and direction of the 

notice that raise questions of error in this appeal. Pursuant to 

the previous holdings of this Court and the Supreme Court of 

Virginia, we must examine the facts to determine whether the 

"issuance" of the summons in this case abridged defendant's 

substantive due process rights. 

 The factual differences between Karim and the instant matter 

are slight. In Karim, notice was not sent to defendant's parent 

or guardian even though the juvenile judge had the names and 

addresses of those parties. In the instant matter, the summons 

was sent. However, it was first sent to a jurisdiction where the 

defendant's mother did not live. It was later re-issued only 

days before the hearing and did not arrive until after the 

hearing had commenced. 

 According to the trial court, "issuance" of the summons in 

whatever direction or to whatever jurisdiction the issuer chooses 

is sufficient to satisfy the statute, regardless of the 

likelihood of receipt. Surely we must require more. To hold 

that notice was properly given when the juvenile court, with 

knowledge of the proper residence of the intended recipient, 

dispatched the summons to a different jurisdiction does not 

comport with our duty to ensure "the procedural regularity and 

the exercise of care implied in the phrase 'due process.'" In re 
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Gault, 387 U.S. at 27-28. See also Jones, 220 Va. at 670, 261 

S.E.2d at 540 (finding that the juvenile criminal statutes evince 

the intent to hold the "the welfare of the child . . . 

paramount"). 

III. Conclusion 

 We hold that when the juvenile court has the address of a 

party named in Code § 16.1-263 and it issues a summons to a 

different jurisdiction or does so at a time which makes timely 

arrival impossible, the notice requirements of Code § 16.1-269.1 

have not been satisfied. When, as here, the notice of the 

transfer hearing was not properly issued, the transfer of 

jurisdiction was ineffectual and the subsequent convictions are 

void. We, therefore, reverse defendant's convictions and remand 

to the circuit court with instructions to remand to the juvenile 

and domestic relations district court to take further action if 

the Commonwealth be so advised. 

 Reversed and remanded.