COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elde r and Bumgardner Argued at Richmo nd, Virginia

EARNEST EUGENE WEESE, S/K/A ERNEST EUGENE WEESE OPINION BY v. Record No. 1712-98-4 JUDGE SAM W. COLEMAN III AUGUST 24, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY LeRoy F. Millette, Jr., Judge Joseph W. Kaestner (J. Paul Walla; Kaestner, Pitney and Jones, P.C.; Ashton, Walla & Associates, P.C., on briefs), for appellant. Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Earnest Eugene Wees e, a seventee n-year-old juvenile, pled guilty in circuit court to aggravated sexual battery purs uant to a plea agreement. The circuit co urt, hearing the case de novo on appeal from the juvenile and domestic re lations distri ct court, found Weese to be delinquent and committe d him to an indefinite term with the De partment of Juve nile Justice. After turning eighteen, Weese mo ved the circuit co urt to "amend th e charge," in accordance with th e plea agreement, from ag gravated sexu al battery to indecent exposure. Weese also moved the circuit court to vacate the conviction and dismiss the petition on th e ground that the circuit court had lacked jurisdiction to enter the convictionorder. Weese appeals the circ uit court's de nial of both motions. We hold that the ci rcuit court had jurisdiction to enter the conviction and that th e circuit court did not err in denying the motion to amend th e charge against Weese. Accordingly, we affirm the rulings and judgment of th e trial court.
I. BACKGROUND The Commonweal th charged Weese in juvenile court with forcible sodomy ag ainst a child less than thirteen years of age. After pleading guilty pursuant to a plea agreement to aggravated sexual battery, Weese appealed the conviction to the ci rcuit court for a trial de novo . Eventually, Weese pled guilty in circuit court to aggravated se xual battery pursuant to a second plea agreement. Amon g the conditions of the plea agre ement, "[i]t was stated by the Co mmonwealth for the record, if the defend ant has no further violat ions prior to his eighteenth (18th) birthday they will amend the charge to indecent exposure a misdemeano r." The court accepted the plea , found Weese gu ilty of aggrav ated sexual battery and, as a delinquent, comm itted him for an indeterminate period to the Depa rtment of Juveni le Justice. In the juvenile court procee ding, Weese's le gal guardian received notice of the proceeding in accordance with the requirement of Co de § 16.1-263 and she atte nded the juvenile court proceeding. However, after Weese's ap peal to the ci rcuit court, the guardian received no additional notice of and did not attend the adjudicato ry proceeding at which Weese entere d into the plea

- 2 -agreement and pled guilty. Weese's guardian received notice of and attended the dispositional hearing at which the court sentenced Weese to an indeterminate commitment with the Department of Juvenile Justice. More than one year after entry of the fina l commitment order, Weese moved the ci rcuit court to enforce the plea agreement by "amending the ch arge" to indecent exposure. Although the commitment order was fi nal, by reques ting amendment of the charge, Weese endeavor ed to reduce the offense to a misdemea nor for which his maximum term of commitment would have been twelve months, rather than an in determinate de linquency co mmitment. Additionally, and for the first time, Weese moved to vacate the conviction and dismiss the petition on the ground th at the circuit court lacked jurisdicti on because Weese's gu ardian received no notice of the circuit court ad judicatory proc eeding. Weese asserted that notice of the circuit co urt proceedings was mandatory and juri sdictional under Code § 16.1-263. The circuit co urt denied both motions, finding that the juvenile court only ha d authority to enforc e the plea agreement while the defendan t was a juvenile and be cause Weese had waited until after his ei ghteenth birthday to se ek enforcement of the plea agreement, the co urt had no authority to do so. The circuit court also found that its proceedings did not violat e the notice requirements of Code § 16.1-263 and upheld the delinquency conviction and indete rminate comm itment.

- 3 -II. ANALYSIS A. Notice Weese contends that the circuit court er red when it tried Weese without givi ng notice of th e adjudicatory he aring to Susan Atkins, his le gal guardian who stood in loco parentis , as required by either Code § 16 .1-263(A) or (B). Initially, we must determine wh ether Weese is ba rred by Rule 1:1 from challenging th e circuit court' s jurisdiction more than twenty-one days after the final co mmitment order an d whether it is proper to do so me rely by filing a mo tion to set aside a conviction in th e circuit court. Weese raised no objection at trial to the Commonwe alth's failure to no tify Atkins of the proceedings pe nding against him in the circuit co urt. In fact, Weese first presen ted the argument to the circuit court over one year after the court ha d entered the fi nal commitment order. He raised the issue by fili ng a motion to set as ide the conv iction. This preliminary is sue is controlled by the Suprem e Court's decision in Matthews v. Commonwealth , 216 Va. 358, 35 9, 218 S.E.2d 538, 540 (1975), which held that notw ithstanding Rule 1:1, when a defendant moves a trial court to set aside a void judgment more than twenty-one days after its entry, the trial court has jurisdiction to vacate that judg ment and the Court further held that filing a motion to set aside is a proper method for doing so. Thus, unless the failur e to follow Code § 16 .1-263 rendered the circuit court with out jurisdicti on to convict Wees e, Rule 1:1 bars

- 4 -our review of th is issue. Howe ver, if the tria l court lacked jurisdiction, then Weese's convicti on would be void ab initio , permitting Weese to ch allenge it at any time in an appropriate proceeding. Accordingl y, the jurisdic tional issue was properly before the circuit cour t by motion. Therefor e, we must determine whether the failur e to notify Atkins, Wees e's guardian , deprived the circuit co urt of jurisdiction to convict Weese. Code § 16.1-263(A) st ates that "[a]fter a petition is filed the court shall di rect the issuance of summonses . . . to the parents, guardian, lega l custodian, or other person standing in loco parentis, and such other persons as appe ar to the co urt to be

proper or necessar y parties to the pr oceedings." Code § 16.1-263(B) fu rther provides that notice "o f subsequent proceedings shal l be provided to all parties in interest." We have held that "compliance wi th [Code §§ 16.1-263 and 16.1-264] relati ng to procedures for instituting proceedings against juveni les, are mandator y and jurisdiction al. The failure to strictly follow th e notice procedures co ntained in the Code [deny the defendan t] a substantiv e right and the constitutional guarantee of due process." Karim v. Commonwealth , 22 Va. App. 767, 779, 473 S.E. 2d 103, 108-09 (1996) (e n banc). Th us, we have held that where a juve nile court conducts a delinquency proceeding without notifyin g parents, or the person in loco parentis , a conviction order resu lting from the proc eedings is void. See Baker v. Commonwealth , 28 Va. App. 306, 31 4-15, 504 S. E.2d 394,

- 5 -398-99 (1998), affirmed per curiam , 258 Va. 1, ___ S.E.2d ___ (1999); Williams v. Commonwealth , 26 Va. App. 77 6, 781-82, 497 S.E.2d 156, 159 (1998); Karim , 22 Va. App. at 779-80, 47 3 S.E.2d at 108-09; see also , Jones v. Commonwealth , 213 Va. 425, 427-28, 192 S.E.2d 775, 77 7 (1972) (finding that th e failure of a Court of Hustings to notify a juvenile's parents rendered that court's judgment void); Peyton v. French , 207 Va. 73, 79-8 0, 147 S.E.2d 739, 743-44 (1966) (i nvolving former Code sections requiring notice in juvenile hearings). Wh ere the void juve nile court order purported to transfer jurisdiction ov er the juvenile to a circuit court, the resulting orders from the circ uit court, which is without jurisdiction, ar e void. See e.g. Karim , 22 Va. App. at 779-80, 473 S.E.2d at 108-09. To satisfy the cons titutional due process and jurisd ictional notice requirements of Code § 16.1-263 and vest the juvenile court wi th jurisdiction , the juvenile court's record mu st establish that the re quired parties received proper notice of the procee dings. See id. Weese does not argue that the juvenile cour t failed to notify Atkins, Weese's gu ardian. The juvenile cour t served Atkins with a summons, and she attend ed the juvenile court hearings. Instead, Weese argues that the failure of the circui t court to serve notice upon Atkins violated the mandate of Code § 16.1-263 and without such notice in the de novo proceeding, the ci rcuit cour t lacked jurisdiction to he ar the petition.

- 6 -As previously noted, the notice requirement of Code § 16.1-263(A), as it applies to the init iation of delinquency proceedings and petitions agains t a juvenile, is mandatory and jurisdictional. See id. Weese conten ds the langua ge of Code § 16.1-263(A) ha s the same jurisdiction al significance to a juvenile petition heard de novo in the circui t court. In addition, Weese cl aims the circuit court vi olated the mandate of Code § 16.1-263(B) requiring that noti ce "of subsequent proceedings . . . be provided to all parties in in terest" which, Weese asserts, is also mandatory an d jurisdictional. Code § 16.1-263(A) is mandatory and juri sdictional , and in order to satisfy cons titutional due proces s requirements, the court must notify a ju venile's guardian prio r to the hearing of the nature of th e charges against the juvenile and when and where the petition and charges are to be heard. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. The notice must be of such a nature as reasonably to convey the required information. Mullane v. Central Hanover Bank & Trust Co. , 339 U.S. 306, 314-15 (1950) (citations omitted). In the context of juvenile delinquency hearings, the United States Supreme Court has held that due process requires written

- 7 -notice to a child's parent or guardian of the charge pending against his or her ward at the earliest practicable time. See In Re Gault , 387 U.S. 1, 33 (1967). Due process "does not allow a hearing to be held in which a youth's freedom and his parents' right to his custody are at stake without giving [the parents] timely notice, in advance of the hearing, of the specific issues that they must meet." Id. at 33-34. We find that the constitutional and jurisdictional notice requirements were satisfied by notifying Atkins of the pendency of the petition and hearing in the juvenile court. For jurisdictional purposes, due process does not require the circuit court to give Atkins notice after Weese appealed the petition from the juvenile court. Just as with civil or misdemeanor appeals from a general district court, no new process or warrant need issue merely because the parties are entitled to a de novo hearing. The initial pleadings and notice given in the district court satisfy the constitutional and jurisdictional notice requirements even though the case may be heard de novo in the circuit court. Although Code § 16.1-263(A) and (B) require a summons and additional notice of the "subsequent" proceedings in the circuit court, we find that the additional notice is not constitutionally required and is not jurisdictional. Therefore, so long as Atkins received notice of the nature of the petition and a summons indicating the time,

- 8 -date, and place of the initial hearing, the constitutional and jurisdictional notice requirements were satisfied. Because Atkins received notice of the original proceedings, she had the opportunity, following Weese's appeal, to appear and be involved in subsequent proceedings, including the de novo hearings in the circuit court. Although Code § 16.1-263(B) may require additional notice of "subsequent proceedings" where necessary to inform the parent or guardian of such proceedings, failure to give such notice does not divest the court of jurisdiction, even though the omission may have been reversible error had the issue been appealed. Accordingly, we find that the notice Atkins received satisfied due process requirements for a de novo trial in the circuit court. The failure to give other statutory notice that may have been required by Code § 16.1-263 did not divest the circuit court of jurisdiction and, accordingly, we are procedurally barred by Rule 1:1 from addressing it. B. Plea Agreement Over a year after the circuit court entered the final commitment order, Weese unsuccessfully moved the circuit court to amend the charge against him from aggravated sexual battery to indecent exposure in compliance with the plea agreement. Because the circuit court lacked jurisdiction to amend the charge after Weese had been found guilty of aggravated sexual battery and committed to the Department of Juvenile Justice, the

- 9 -circuit court did not err in denying the motion to amend the charge. A trial court's final judgment remains under the control of the court for twenty-one days after its entry; after twenty-one days, the trial court loses jurisdiction to suspend, modify, set aside, or vacate its judgment. See Rule 1:1; Virginia Dept. of Corrections v. Crowley , 227 Va. 254, 264, 316 S.E.2d 439, 444 (1984) (finding that twenty-one days from the entry of the final order and after the defendant had been transferred to the penitentiary, a trial court had no authority to suspend sentences). Furthermore, a trial court's order purporting to extend its jurisdiction over a case past the twenty-one days is ineffectual. See Godfrey v. Williams , 217 Va. 845, 846, 234 S.E.2d 301, 302 (1977). Here, the defendant asked the trial court, in accordance with the terms of a plea agreement, to modify or amend the charge against him more than twenty-one days after the final judgment and after the defendant had been committed to the Department of Juvenile Justice. The court's jurisdiction to amend the charge and dispose of the case on an amended charge expired twenty-one days from entry of the final judgment order as provided by Rule 1:1. The Commonwealth and defendant could

- 10 -not by agreement extend that time. 1 Furthermore, the fact that the trial court memorialized the plea agreement in the final order had no effect on the application of Rule 1:1 and did not extend the trial court's authority to modify the charge against Weese. Accordingly, the trial court did not err in denying Weese's motion to enforce the plea agreement. Finding no error, we affirm the circuit court's order. Affirmed.

1 In the trial court, the appellant sought to enforce the plea agreement; he did not seek alternate relief in the event the plea agreement was unenforceable. Although the trial court was procedurally barred by Rule 1:1 from modifying the final conviction order and thereby enforcing the plea agreement, we do not address what alternate avenues of relief might be available to appellant for the Commonwealth's alleged breach of the plea agreement.

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