                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Humphreys
Argued at Chesapeake, Virginia


QUINCY DAMON PHILLIPS
                                          MEMORANDUM OPINION * BY
v.   Record No. 2938-99-1               JUDGE JAMES W. BENTON, JR.
                                             MARCH 6, 2001
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Robert W. Curran, Judge

           Bryan L. Saunders for appellant.

           Virginia B. Theisen, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Quincy Damon Phillips, who was convicted of criminal

offenses in 1995, appeals the denial of his motion for a new

trial.   He contends that the precedent of Commonwealth v. Baker,

258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), aff'g 28 Va. App.

306, 504 S.E.2d 394 (1998), mandates the reversal of his

conviction and a new trial because the juvenile and domestic

relations district court did not give notice to his biological

father in the manner required by law.   We agree and reverse the

trial judge's decision.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 I.

     In 1995, the Commonwealth filed petitions in juvenile court

charging Phillips's, who was then 15 years old, with robbery and

attempted robbery.    The petitions identified Phillips's father

and mother to be Ricky Phillips and Sharon Phillips.     The record

also indicates that they both signed Phillips's "recognizance"

bail form at the line designated "Custodian."     Ricky Phillips

also signed a "notification of rights" form on the line

designated "Parent(s) or Guardian(s)."

     When the juvenile court transferred Phillips to the circuit

court for trial as an adult, the order noted that both "mother"

and "father" were present.   In the circuit court, Phillips pled

guilty to robbery and attempted robbery.     The 1995 conviction

and sentencing orders noted that "the defendant's parents, Ricky

Phillips and Sharon Phillips, were also present."

     In July 1999, Phillips filed the motion for a new trial.

The motion alleged that the courts had failed to notify

Phillips's "biological parents."      At the hearing on the motion,

Sharon Phillips testified that she was Phillips's mother and

Franklin Allen was Phillips's biological father.     She also

testified that when the petition against Phillips was served on

Ricky Phillips, she and Ricky Phillips were married and had been

married since 1984.   They had sought to have Ricky Phillips adopt

Phillips in 1985 while Ricky Phillips was in the military.      When

they contacted a military Judge Advocate General officer for

                                - 2 -
assistance, he "guided [them] through it, told [them] a little bit

about it and began the paperwork."       After Allen executed the

notarized form, Sharon Phillips filed in the circuit court

pleadings, which had been prepared by the JAG officer and which

she "thought was going to be an adoption."      The 1985 circuit court

order, which was filed as an exhibit at the hearing, indicates

only that Phillips's name was changed from Quincy Damon Washington

to Quincy Damon Phillips.

     Sharon Phillips testified further that Allen attended none of

the proceedings in juvenile or circuit court in 1995.      She did not

know Allen's location and last had contact with Allen in 1985.

She testified, however, that Phillips occasionally visited Allen's

parents when he was a child but that she was unaware of any

contact he may have had with Allen.

     Upon this evidence, the trial judge denied the motion for a

new trial.   Phillips appeals.

                                 II.

     As a preliminary matter, we address the Commonwealth's

contention that the Supreme Court of Virginia has jurisdiction

over this appeal.   Relying on Virginia Dep't of Corrections v.

Crowley, 227 Va. 254, 263, 316 S.E.2d 439, 443-44 (1984), the

Commonwealth argues that this action is civil in nature and that

we should transfer it to the Supreme Court.       We disagree with

this contention for the reasons stated in Asby v. Commonwealth,

34 Va. App. 217, 539 S.E.2d 742 (2001).

                                 - 3 -
                               III.

     Phillips contends that the juvenile court never had proper

jurisdiction of this case.   Thus, he contends the transfer of

the case to the circuit court for trial was void.

     At the time of these events in 1995, former Code § 16.1-263

stated in pertinent part as follows:

          A. After a petition is filed, the court
          shall direct the issuance of summonses, one
          directed to the juvenile, if the juvenile is
          twelve or more years of age, and another to
          the parents, guardian, legal custodian or
          other person standing in loco parentis, and
          such other persons as appear to the court to
          be proper or necessary parties to the
          proceedings. The summons shall require them
          to appear personally before the court at the
          time fixed to answer or testify as to the
          allegations of the petition. Where the
          custodian is summoned and such person is not
          the parent of the juvenile in question, the
          parent shall also be served with a summons.
          The court may direct that other proper or
          necessary parties to the proceedings be
          notified of the pendency of the
          case, the charge and the time and place for
          the hearing.

          B. The summons shall advise the parties of
          their right to counsel as provided in
          § 16.1-266. A copy of the petition shall
          accompany each summons for the initial
          proceedings. The summons shall include
          notice that in the event that the juvenile
          is committed to the Department or to a
          secure local facility, the parent or other
          person legally obligated to care for and
          support the juvenile may be required to pay
          a reasonable sum for support and treatment
          of the juvenile pursuant to § 16.1-290.
          Notice of subsequent proceedings shall be
          provided to all parties in interest. In all
          cases where a party is represented by
          counsel and counsel has been provided with a

                               - 4 -
            copy of the petition and due notice as to
            time, date and place of the hearing, such
            action shall be deemed due notice to such
            party, unless such counsel has notified the
            court that he no longer represents such
            party.

            *      *      *      *      *         *      *

            E. No such summons or notification shall be
            required if the judge shall certify on the
            record that the identity of a parent or
            guardian is not reasonably ascertainable.
            An affidavit of the mother that the identity
            of the father is not reasonably
            ascertainable shall be sufficient evidence
            of this fact, provided there is no other
            evidence before the court which would refute
            such an affidavit.

Code § 16.1-263 (emphasis added).    Code § 16.1-264 provided for

service of process by publication if a parent's location could

not be ascertained.

       In Baker I, we held that a plain reading of Code § 16.1-263

"manifests legislative intent that both parents be notified and

dispenses with this requirement only when the trial judge has

certified on the record that the identity of a parent is not

reasonably ascertainable."    28 Va. App. at 312, 504 S.E.2d at

394.   The Commonwealth must make a reasonable inquiry to find

the juvenile's parent and effect service of the summons by

publication should that inquiry fail.       Id.   Because we had

previously held that these notice requirements were mandatory

and jurisdictional in nature, see Karim v. Commonwealth, 22 Va.

App. 767, 779, 473 S.E.2d 103, 108-09 (1996), we held in Baker I

that the circuit court proceedings were void and reversed

                                - 5 -
Baker's conviction.   28 Va. App. at 315, 504 S.E.2d at 399.    In

Baker II, the Supreme Court affirmed those rulings.    See 258 Va.

at 2, 516 S.E.2d at 219.

     Subsequent to Baker, the Supreme Court has had several

opportunities to re-visit questions of this nature.   In David

Moore v. Commonwealth, 259 Va. 431, 527 S.E.2d 406 (2000), the

Court reversed the conviction of a defendant whose father was

never summoned to appear in juvenile or circuit court.   Lack of

a timely objection constitutes the primary distinction between

the Baker case and David Moore.    See 259 Va. at 437, 527 S.E.2d

at 409.   In David Moore, the Court held that an objection was

not necessary because the statutory notice of the initiation of

juvenile court proceedings to a juvenile's parent was not

subject to waiver.    259 Va. at 440, 527 S.E.2d at 410-11.   In

doing so, the Court distinguished 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.   A court's authority to exercise its power 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 jurisdiction.'"    Id. (citation

omitted).   The requirement of notice to both parents was one

such mandatory requirement under former Code § 16.1-263.      Id. at

438, 527 S.E.2d at 409-10.

                                - 6 -
     The juvenile court in Phillips's case never lawfully

exercised its subject matter jurisdiction because it failed to

notify Allen, who is Phillips's father.    Here, no one, not even

Phillips, his mother, his father or his putative father,

realized that Ricky Phillips was not Phillips's father within

the meaning of then Code § 16.1-263.     Because of that fact, no

notice was sent to Allen and the courts did not satisfy the

statutory requirements necessary to exercise power in this

particular case.   Therefore, the juvenile court could not have

transferred this case to the circuit court's jurisdiction.

Phillips's conviction is void.

     The Commonwealth seeks to create an exception to the law.

It argues that the juvenile court made the "reasonable inquiry"

mentioned in Baker I and that the court could not possibly have

determined that Allen was the real father and notified him of

the charges.   The Commonwealth contends that this case differs

from David Moore because the courts were not put on notice that

the adult appearing with Phillips was only a stepfather.

Relying on Erickson-Dickson v. Erickson-Dickson, 12 Va. App.

381, 404 S.E.2d 388 (1991), the Commonwealth argues that once a

court has jurisdiction it may not lose that jurisdiction simply

because it made an incorrect factual determination necessary to

continue exercising its jurisdiction.

     In Erickson-Dickson, a circuit judge had awarded a divorce

but postponed a decision on equitable distribution until a later

                                 - 7 -
date.    Former Code § 20-107.3 required a joint motion of both

parties and a finding by the judge that the distribution

involved complex matters before the judge could postpone such a

decision.    12 Va. App. at 383, 404 S.E.2d at 389.   Although both

parties had requested equitable distribution in their original

pleadings, they had made no joint motion to postpone that

determination and the judge made no finding of sufficient

complexity.     Id.   The husband, who did not object at trial to

the postponement, argued on appeal that the failure to satisfy

the two statutory requirements deprived the court of

jurisdiction and, thus, barred equitable distribution.     We

disagreed because the issue was not whether the court properly

had acquired jurisdiction, but whether it had retained

jurisdiction.    Thus, we held that "[w]hen the court has acquired

jurisdiction over the parties and the subject matter, and its

continued exercise of that jurisdiction requires a ruling which

depends upon factual determinations, an error in deciding the

facts or the failure to decide them does not render the ruling

void or a nullity."      Id. at 388, 404 S.E.2d at 392.

        Nevertheless, nothing in Erickson-Dickson suggests that the

statutory procedures at issue were "mandatory and

jurisdictional."      See Baker I, 28 Va. App. at 310, 504 S.E.2d at

396; Karim, 22 Va. App. at 779, 473 S.E.2d at 108-09 (holding

that the provisions "relating to procedures for instituting

proceedings against juveniles, are mandatory and

                                  - 8 -
jurisdictional").   Furthermore, as the Supreme Court noted in

David Moore, the statutes concerning these procedures "provide

the statutory means by which a circuit court acquires the

authority to exercise its subject matter jurisdiction over a

class of offenses committed by a juvenile that would otherwise

fall within the exclusive original subject matter jurisdiction

of the juvenile court."   259 Va. at 438, 527 S.E.2d at 409.

Thus, it is not simply the jurisdiction of one court that is at

issue in juvenile transfer cases.

             There is no question that when the
          statutory requirements related to the
          juvenile court proceedings are followed, a
          circuit court's subject matter jurisdiction
          over the class of offenses committed by a
          juvenile that are at issue here is invoked.
          It is the unique statutory framework whereby
          a juvenile court and in turn a circuit court
          acquire the authority to exercise their
          subject matter jurisdiction that is at issue
          here and was at issue in a number of our
          prior cases.

259 Va. at 438, 527 S.E.2d at 409 (citations omitted).   The

convictions at issue in this case occurred in the circuit court,

whose authority to exercise its jurisdiction depended on

compliance with the mandatory procedures.   Because that process

was flawed, the circuit court never acquired jurisdiction and

the convictions are void.

     The Commonwealth also asks us, in effect, to distinguish

between the conduct of the juvenile court in David Moore and the

conduct in this case and label one of them a factual error that


                               - 9 -
has no effect.   In both cases, however, the juvenile courts

failed to give proper notice to a parent of the juvenile

defendant.   The fact that the juvenile court in this case

believed that it had done so correctly does not change the fact

that it failed to fulfill the statutory requirements necessary

to exercise jurisdiction.

     The Commonwealth argues that Phillips should not be able to

benefit from a misrepresentation that Ricky Phillips was his

father.   The trial judge noted that Ricky Phillips signed the

juvenile court forms at the lines indicated for "Custodian" and

"Parent(s) or Guardian(s)."   Neither that evidence nor any other

evidence indicates, however, that Phillips, Sharon Phillips, or

Ricky Phillips made representations with knowledge of the true

facts.    A court may not acquire subject matter jurisdiction and

exercise it in a specific case based on the unknowing

misrepresentation of a party.    Because of the basic nature of

jurisdiction, the fact that the record indicates an unknowing

misrepresentation of Phillips's family situation will not alter

our decision.

     Lastly, the Commonwealth argues that Phillips waived all of

his objections by pleading guilty.       A guilty plea waives all

non-jurisdictional defects in a court proceeding.       Peyton v.

King, 210 Va. 194, 196-97, 169 S.E.2d 569, 571 (1969).       While

the David Moore decision distinguished between subject matter

jurisdiction and the exercise of subject matter jurisdiction,

                                - 10 -
both issues are "jurisdictional" and a guilty plea does not

waive objections to them.

     For these reasons, we reverse the ruling of the trial court

and remand this case for a new trial.

                                        Reversed and remanded.




                             - 11 -
