                                              Tuesday        9th

          April, 2002.


Carlos Demetrius Minor, s/k/a
 Carlus Demetrius Minor,                                     Appellant,

against         Record No. 1996-00-2
                Circuit Court No. 96-606F

Commonwealth of Virginia,                                    Appellee.


            Upon Remand from the Supreme Court of Virginia


          In accordance with the order of the Supreme Court of

Virginia entered on October 23, 2001, the opinion previously rendered

by this Court on July 3, 2001 is withdrawn and the mandate entered on

that date is vacated.

          As further directed by the order of the Supreme Court, and

in accordance with the decision of that Court in Commonwealth v.

Southerly, 262 Va. 294, 551 S.E.2d 650 (2001), the case is hereby

transferred to the Supreme Court of Virginia pursuant to Code

§ 8.01-677.1.

          This order shall be published.

                              A Copy,

                                   Teste:

                                            Cynthia L. McCoy, Clerk

                                   By:

                                            Deputy Clerk
                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Frank and Clements
Argued at Richmond, Virginia


CARLOS DEMETRIUS MINOR, S/K/A
 CARLUS DEMETRIUS MINOR
                                                 OPINION BY
v.   Record No. 1996-00-2                   JUDGE ROBERT P. FRANK
                                                 JULY 3, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                       James B. Wilkinson, Judge

          Craig W. Sampson for appellant.

          Michael T. Judge, Assistant Attorney General (Mark
          L. Earley, Attorney General, on brief), for
          appellee.


     Carlos Demetrius Minor (appellant) was convicted, in a bench

trial, of possession of cocaine with the intent to distribute, in

violation of Code § 18.2-248.    On appeal, he contends his conviction

is void under Baker v. Commonwealth, 28 Va. App. 306, 504 S.E.2d 394

(1998), aff'd, 258 Va. 1, 516 S.E.2d 219 (1999) (per curiam), because

the juvenile and domestic relations district court failed to give his

mother and father proper notice of the juvenile court proceedings.

We agree and reverse the conviction.

                            I.    BACKGROUND

     On April 3, 1996, the Richmond Juvenile and Domestic Relations

District Court issued a petition charging appellant with possession

of cocaine with intent to distribute.   Appellant, who was born on

March 21, 1979, was seventeen years old at the time of the offense.
                                   -2-
The petition listed appellant's father's address as "North Carolina"

and indicated that appellant's mother was incarcerated in the

Virginia Department of Corrections.     The petition also listed

appellant's grandmother, Barbara Alston, as his legal guardian.

     On May 9, 1996, appellant, his attorney and his grandmother were

present for the transfer hearing. 1    The transfer order indicated that

neither parent was present, and there was no documentation that

either parent's location was unascertainable. 2    However, the order

noted that appellant's grandmother was present for the transfer

hearing.

     On June 26, 1996, appellant, his attorney, his grandmother, and

the prosecutor appeared in the circuit court, and appellant entered a

plea of guilty.    The court accepted the plea and, in accordance with

the plea agreement, directed that appellant be evaluated for the

Shock Incarceration Program.

     On August 9, 1996, the trial court suspended imposition of

sentence against appellant on the condition that he enter and

successfully complete the Shock Incarceration Program.     Later,

appellant violated the terms of the suspended sentence and,

ultimately, the entire suspended sentence was revoked.

     On April 26, 2000, appellant, by counsel, filed a motion to

vacate his conviction.    The motion asserted that his August 9, 1996


     1
       The record does not disclose if appellant's grandmother
received a summons as required by Code § 16.1-263.
     2
         Neither parent was notified under Code § 16.1-263(A).

                                      -3-
conviction was void because his mother and father were not given

notice of the transfer hearing and there was no indication in the

record that the location or identity of his mother or father was not

reasonably ascertainable.

     The trial court heard the motion to vacate on June 5, 2000.

Appellant testified that he was seventeen years old at the time of

the offense and that to his knowledge, his mother and his     father

were not notified of or present at the juvenile proceeding or the

transfer hearing.   Appellant testified he had not seen his mother or

father in the past four years but he talked by telephone to his

mother, who was in the Goochland Penitentiary.   Appellant admitted

that his grandmother was his legal guardian at the time of the

juvenile proceedings.

     Appellant's mother, Monica Bryant, testified that she did not

have notice of the original proceedings and she was not present at

any of the hearings.    She testified that she was in the Goochland

Penitentiary at the time of the juvenile proceedings.   She further

testified that appellant's grandmother was his legal guardian at the

time of the juvenile proceedings.

     On July 24, 2000, the trial court issued an opinion denying

appellant's motion to vacate.   The court found appellant's

grandmother had legal custody at the time of the offense and,

although his grandmother had not been given written notice of the

transfer hearing, she was present at the transfer hearing and the

subsequent trial.   The court concluded that because appellant's

                                    -4-
grandmother was his legal guardian at the time of the offense and she

was present at the transfer hearing on May 9, 1996, the requirements

of Code § 16.1-263 were satisfied.



                               II.   ANALYSIS

     Appellant, relying on Baker, 28 Va. App. 306, 504 S.E.2d 394,

contends the trial court lacked jurisdiction to convict him because

he was a juvenile at the time of the offense and the record failed to

establish that his biological parents were served with summonses as

required by Code § 16.1-263.

     Former Code § 16.1-263(A) required that, "after a petition has

been filed," the juvenile 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 . . . .   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."

     We have previously held "the provisions of Code §§ 16.1-263 and

16.1-264, 'relating to procedures for instituting proceedings against

juveniles, are mandatory and jurisdictional,' and the failure to

'strictly follow' these notice procedures denies a juvenile defendant

'a substantive right and the constitutional guarantee of due

process.'"   Baker, 28 Va. App. at 310, 504 S.E.2d at 396 (quoting

                                      -5-
Karim v. Commonwealth, 22 Va. App. 767, 779, 473 S.E.2d 103, 108-09

(1996) (en banc)).     Thus, a default in the requisite "notice of the

initiation of juvenile proceedings" renders "the transfer of

jurisdiction" "ineffectual and the subsequent

convictions . . . void."     Id. at 315, 504 S.E.2d at 399.

        The Commonwealth concedes that neither parent was notified of

the original juvenile proceedings or appeared at any stage of that

proceeding.    However, the Commonwealth contends that the presence of

the grandmother as appellant's "legal guardian" satisfied the notice

requirements of Code § 16.1-263.

        The Commonwealth maintains that the grandmother, not the

parents, was the only person with any custody interest in appellant,

citing Thomas v. Garraghty, 258 Va. 530, 522 S.E.2d 865 (1999), cert.

denied, 528 U.S. 1106 (2000).     However, this reference ignores the

substantial difference between custody and adoption.

        In Thomas, Thomas was adopted by his maternal grandparents with

the consent of both natural parents.       Id. at 533, 522 S.E.2d at 867.

Prior to his commission of the offenses, Thomas' adoptive parents

died.     Id. at 534, 522 S.E.2d at 867.   He lived with his aunt and

uncle at the time of the offenses.     Id.    At the time of the offenses,

no legal guardian or custodian had been appointed by a court.       Id.

The uncle and aunt, persons standing "'in loco parentis,'" were

notified of the juvenile proceedings under Code § 16.1-263(A).       Id.

at 535, 522 S.E.2d at 868.    Thomas contended his natural father

should have been given notice and the failure to do so rendered his

                                     -6-
capital murder conviction void under Baker.    Id. at 532, 522 S.E.2d

at 866.   The Supreme Court of Virginia held that the natural father,

after the entry of the final order of adoption, was divested of all

legal parental rights.    Id. at 535, 522 S.E.2d at 867.    The Supreme

Court wrote, "Thus, Thomas's biological father was not his 'parent'

within the meaning of former Code § 16.1-263 at the time of the

transfer proceedings and was not entitled to notice under that

statute."     Id.

     In this case, appellant's parents were not "divested" of their

parental rights.    While appellant's grandmother had legal custody, an

award of custody does not divest non-custodial parents of all rights

concerning their child.   The legislature recognized that

non-custodial parents retain certain rights when their minor child is

arrested.   Code § 16.1-263 requires that notice be given to

non-custodial parents, in addition to the child's custodian.     The

statute does not apply a different standard for notification of a

non-custodial parent than for notification of a custodial parent.

Indeed, Baker involved a non-custodial father who had no involvement

with Baker.    In Karim, 22 Va. App. 767, 473 S.E.2d 103, the father

also was a non-custodial parent.   We, therefore, hold that Code

§ 16.1-263(A) requires notice to both the custodian and parents, even

if the minor was not in the custody of one or both parents, unless

parental rights have been terminated.

     The Commonwealth further contends appellant's guilty plea waived

the notice defect.   A guilty plea "is a waiver of all defenses other

                                    -7-
than those jurisdictional . . . ."    Peyton v. King, 210 Va. 194, 196,

169 S.E.2d 569, 571 (1969).   The Commonwealth claims that neither

Baker nor Dennis Moore v. Commonwealth, 259 Va. 405, 527 S.E.2d 415

(2000), holds that a Baker claim is a jurisdictional defect.     The

Commonwealth concludes that because a Baker notice defect is not

jurisdictional, it is waived by a guilty plea.

     The Commonwealth misreads the entire line of Baker

jurisprudence.   In Karim, we held that the provisions of Code

§§ 16.1-263 and 16.1-264, "relating to procedures for instituting

proceedings against juveniles, are mandatory and jurisdictional," and

the failure to "strictly follow" these notice procedures denies a

juvenile defendant "a substantive right and the constitutional

guarantee of due process."    Karim, 22 Va. App. at 779, 473 S.E.2d at

108-09.

     In Dennis Moore, the Supreme Court of Virginia distinguished

subject matter jurisdiction from a court's authority to exercise that

jurisdiction by stating:

               A court's authority to exercise its subject
          matter jurisdiction over a case 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 that jurisdiction. See, e.g., Jones
          v. Commonwealth, 213 Va. 425, 428, 192 S.E.2d
          775, 777 (1972); Gregory v. Peyton, 208 Va. 157,
          159-60, 156 S.E.2d 624, 626 (1967); Peyton v.
          French, 207 Va. 73, 80, 147 S.E.2d 739, 743
          (1966) . . . .

               The trial court's judgment in Baker was void
          because the notice of initiation of juvenile
          proceedings was not served on a required party,
          the juvenile's biological father. Id. Thus,
                                   -8-
          although the trial court had subject matter
          jurisdiction over the felony indictments before
          it, the court lacked authority to exercise its
          subject matter jurisdiction over those offenses
          because the Commonwealth failed to comply with
          the mandatory notice requirements of former Code
          §§ 16.1-263 and -264.

Dennis Moore, 259 Va. at 409-10, 527 S.E.2d at 417-18.

     In each of the Baker claim cases, the circuit court and juvenile

and domestic relations district court had subject matter jurisdiction

to hear a criminal case.    Code §§ 19.2-239 and 16.1-241.   However,

due to the lack of notice in each case, the court lacked authority to

exercise that jurisdiction.

     "The failure of the juvenile and domestic relations district

court to summon both of Southerly's parents, as then required by Code

§ 16.1-263, rendered the hearing in that court ineffective to

transfer jurisdiction to the trial court.   As a consequence, all

subsequent proceedings in the trial court were void."     Southerly v.

Commonwealth, 33 Va. App. 650, 655, 536 S.E.2d 452, 454 (2000).

     Our recent decision in Langhorne v. Commonwealth, 35 Va. App.

19, 542 S.E.2d 780 (2001), resolved the very issue raised by the

Commonwealth.    As in the present case, Langhorne's father was not

notified of the juvenile court proceedings under Code § 16.1-263.

Id. at 21, 542 S.E.2d at 781.    Langhorne pled guilty in circuit court

and later challenged the validity of his conviction.     Id. at 22, 542

S.E.2d at 781.   We held:

               [D]espite Langhorne's guilty plea, the
          absence of notice to his father, under these
          facts, rendered the juvenile court powerless to
          exercise jurisdiction in order to conduct the
                                   -9-
          transfer hearing. Thus, the circuit court's
          judgment, and later revocation of probation, was
          void because it lacked authority to exercise
          subject matter jurisdiction.

Id. at 25, 542 S.E.2d at 782-83.   We, therefore, hold that

appellant's guilty plea did not waive the defect of non-notification

of a parent.

     Lastly, the Commonwealth contends that because a motion to

vacate is civil in nature, the Supreme Court of Virginia, not this

Court, has jurisdiction to hear this appeal.   We have held that

"although a motion to vacate or set aside a conviction may be civil

in nature, the underlying charges [] were criminal," thus, giving us

jurisdiction to hear the appeal.   Asby v. Commonwealth, 34 Va. App.

217, 221, 539 S.E.2d 742, 744 (2001), aff'd, ___ Va. App. ___,

___S.E.2d ___ (2001) (en banc).

     Finding that appellant's conviction is void, we reverse the

judgment of the trial court and order appellant's conviction vacated.

We remand the case to the trial court for further proceedings, if the

Commonwealth be so advised.

                                                 Reversed and remanded.




                                   -10-
