Opinion
Record No. 1458-91-2
September 7, 1993
UPON REHEARING
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND ROBERT W. DULING, JUDGE.
Kimberly B. O'Donnell (David J. Johnson; Office of the Richmond Public Defender, on brief), for appellant.
Michael T. Judge, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judges Elder and Fitzpatrick.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jermaine Broadnax, a minor, was originally charged by juvenile petition with possession of cocaine with intent to distribute, in violation of Code § 18.2-248. The case was removed from juvenile court to circuit court where, after indictment, Broadnax entered a conditional plea of guilty. On appeal, he contends that the trial judge erred in failing to conduct anore tenus hearing on the Commonwealth's petition for removal under Code § 16.1-269(E). On March 9, 1993, we answered the question in the affirmative, reversing appellant's conviction and remanding the case to the trial court with instructions to remand to the juvenile court. Thereafter, we granted the Commonwealth's petition for rehearing by the panel. For the reasons set forth below, we reverse appellant's conviction and remand the case to the circuit court.
The relevant facts in this case are not in dispute. Appellant was initially charged as a juvenile, and the Commonwealth moved the juvenile court to transfer the case to the circuit court under Code § 16.1-269(A) so that appellant could be tried as an adult. After hearing evidence on the matter on January 31, 1991, the juvenile court denied the motion. The Commonwealth then petitioned the circuit court for removal under Code § 16.1-269(E), and the court issued an order authorizing the Commonwealth to seek an indictment. Although the circuit court judge timely reviewed "all papers connected with the case," that review was conducted in camera and appellant was afforded no hearing at which to argue or present evidence.
We conclude, based on our holding in Russell v. Commonwealth, ___ Va. App. ___, ___ S.E.2d ___ (May 29, 1993), that appellant had a statutory entitlement to "a hearing that gives meaningful review." Id. at ___, ___ S.E.2d at ___. As we stated inRussell,
[a]lthough the amendments to Code § 16.1-269 subsequent to our decision in Grogg [v. Commonwealth, 6 Va. App. 598, 371 S.E.2d 549 (1988)], make it clear that the circuit court is not required to conduct a de novo hearing in transfer or removal proceedings, certain minimum requirements must be met. . . . The juvenile must be given [a hearing and] notice of the hearing and afforded an opportunity to appear with counsel and argue his position. Whether, in addition to "exam[ining] all . . . papers, reports and orders [of the juvenile court]," the circuit court hears additional evidence is a matter addressed to the sound discretion of the trial court and will not be disturbed by this Court unless there has been an abuse of discretion of the trial court and will not be disturbed by this Court unless there has been an abuse of discretion.
Based upon the recent amendments to Code § 16.1-269 which took effect on July 1, 1993, a circuit court considering a petition for removal filed by the Commonwealth is now statutorily required both "(i) [to] examine all such papers, reports and orders and (ii) [to] conduct a hearing to take further evidence on the issue of transfer." Act of Apr. 7, 1993, ch. 908, § 1, 1993 Va. Acts ___; see Code § 16.1-269(E) (Supp. 1993).
Id. at ___, ___ S.E.2d at ___ (quoting Code § 16.1-269(E)).
Because the circuit court failed to conduct the required hearing, the Commonwealth lacked the authority to proceed against appellant as an adult. Accordingly, we vacate appellant's conviction and remand to the circuit court to provide the required hearing before determining whether the Commonwealth should be authorized to seek an indictment, if the Commonwealth be so advised. Vacated and Remanded.
This case is factually distinguishable from Bea v. Commonwealth, 14 Va. App. 977, 980-81, 420 S.E.2d 255, 257 (1992), in which we held the court lacked jurisdiction, because in this case the circuit court acted timely in response to the Commonwealth's removal request. Accordingly, the court's failure to conduct an ore tenus hearing does not itself eliminate the circuit court's jurisdiction in this matter.