Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., and
Carrico and Koontz, S.JJ. *
SHANDRE TRAVON SAUNDERS
OPINION BY
v. Record No. 100906 SENIOR JUSTICE HARRY L. CARRICO
March 4, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this criminal appeal, we decide whether a person under
the age of eighteen may be sentenced by a jury rather than a
judge on one or more charges specified in Code § 16.1-269.1(B)
and (C). Pursuant to that Code section, charges against the
defendant, Shandre Travon Saunders, then sixteen years of age,
for aggravated malicious wounding, Code § 18.2-51.2(A), and use
of a firearm in the commission of a felony, Code § 18.2-53.1, 1
were certified to the grand jury on June 11, 2008, by the
Juvenile and Domestic Relations District Court of the City of
Lynchburg (the juvenile court). On July 7, 2008, a grand jury
indicted Saunders for these two offenses and also for
*
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
1
Aggravated malicious wounding is a charge specified in
Code § 16.1-269.1(B). Code § 16.1-269.1(D) provides that upon a
finding of probable cause in a preliminary hearing on a charge
pursuant to subsection (B) or (C) of the statute, a juvenile
court shall certify the charge and all ancillary charges to the
grand jury. Hence, use of a firearm in the commission of a
felony was certified as an ancillary charge in this case.
participation in an act of violence in association with a
criminal street gang. Code § 18.2-46.2.
BACKGROUND
These three charges arose out of an incident that occurred
on September 7, 2007. Greg Powell, a taxicab driver and part-
time football coach, was driving his cab near the intersection
of Garfield Avenue and Twelfth Street in Lynchburg. As he drove
past a gas station, Saunders, who was standing in a parking lot
on the opposite side of the street, fired a .380 caliber handgun
two or three times, striking Powell in the side of his face,
causing him to lose control of his vehicle and crash into a
tree. Powell suffered severe injuries, including facial
fractures and an injury to the left carotid artery in his neck.
Several days later, he suffered a stroke and permanent brain
damage. He is paralyzed in the right side of his body and
cannot speak or process speech.
The shooting was gang-related. Saunders was a leader in a
gang called the Garfield Avenue Bloods that was involved in
home-invasion robbery, malicious wounding, and drug dealing.
Saunders’ trial in circuit court on the three charges was
set before a jury. Pretrial, he moved that the jury be
precluded from sentencing him if it found him guilty of any of
the charges, arguing that Virginia law does not allow juries to
fix the punishment for defendants under the age of eighteen.
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However, on March 21, 2008, before the three charges were
certified by the juvenile court on June 11, 2008, the circuit
court had tried Saunders on a charge of shooting into an
occupied dwelling, Code § 18.2-279, had convicted him as an
adult on his plea of guilty, and on June 6, 2008, had sentenced
him to ten years’ imprisonment, with eight years suspended.
Saunders had waived the jurisdiction of the juvenile court on
the occupied dwelling shooting on February 13, 2008, and it was
not related in any way to the three charges currently under
review.
Saunders’ conviction on March 21, 2008, of shooting into an
occupied dwelling arose out of an incident that occurred on
September 21, 2007, two weeks after Saunders shot Powell. Armed
with the same .380 caliber gun he had used on Powell, Saunders
went to an apartment in Lynchburg and shot at several men inside
the apartment. They returned fire, and then everyone fled. The
shooting was drug-related.
The circuit court entered an order denying Saunders’ motion
to preclude the jury from sentencing him on the three charges
and directing that Saunders “be sentenced by a jury if
convicted.” On January 26, 2009, the jury convicted Saunders of
all three charges and fixed his punishment at forty years’
imprisonment on the charge of aggravated malicious wounding,
three years on the charge of use of a firearm in the commission
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of a felony, and ten years on the charge of participation in an
act of violence in association with a criminal street gang,
totaling fifty-three years in all. The circuit court imposed
the punishment fixed by the jury.
Saunders sought an appeal from the Court of Appeals of
Virginia, assigning error only to the circuit court’s order
allowing the jury to fix his sentence. The Court of Appeals
awarded an appeal, upheld the circuit court’s denial of
Saunders’ motion for non-jury sentencing, and affirmed his
conviction. Saunders v. Commonwealth, 56 Va. App. 139, 692
S.E.2d 252 (2010). We awarded Saunders this appeal.
Sections 16.1-271 and 16.1-272 in Chapter 11, Article 7 of
Title 16.1 of the Code of Virginia are at the heart of the issue
in this case. Code § 16.1-271 provides in pertinent part as
follows:
Conviction of a juvenile as an adult pursuant to the
provisions of this chapter shall preclude the juvenile
court [from] taking jurisdiction of such juvenile for
subsequent offenses committed by that juvenile.
Any juvenile who is tried and convicted in a circuit
court as an adult under the provisions of this article
shall be considered and treated as an adult in any criminal
proceeding resulting from any alleged future criminal acts
and any pending allegations of delinquency which have not
been disposed of by the juvenile court at the time of the
criminal conviction.
All procedures and dispositions applicable to adults
charged with such a criminal offense shall apply in such
cases, including, but not limited to, arrest; probable
cause determination by a magistrate or grand jury; the use
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of a warrant, summons, or capias instead of a petition to
initiate the case; adult bail; preliminary hearing and a
right to counsel provisions; trial in a court having
jurisdiction over adults; and trial and sentencing as an
adult.
Code § 16.1-272 provides in pertinent part as follows:
A. In any case in which a juvenile is indicted, the
offense for which he is indicted and all ancillary charges
shall be tried in the same manner as provided for in the
trial of adults, except as otherwise provided with regard
to sentencing. Upon a finding of guilty of any charge, the
court shall fix the sentence without the intervention of a
jury.
STANDARD OF REVIEW
Whether a defendant under the age of eighteen must be
sentenced by a judge rather than a jury in certain cases
“presents a pure question of law and is accordingly subject to
de novo review by this Court.” See Jones v. Commonwealth, 276
Va. 121, 124, 661 S.E.2d 412, 414 (2008). “[P]enal statutes
must be strictly construed against the State and . . . such
statutes cannot be extended by implication or construction, or
be made to embrace cases which are not within their letter and
spirit. We determine the General Assembly’s intent by the words
used in a statute, and when a statute is unambiguous, we are
bound by the plain meaning of its language.” Id. (internal
quotation marks and citations omitted). “[T]he accused is
entitled to the benefit of any reasonable doubt about the
construction of a criminal statute.” Stevenson v. City of Falls
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Church, 243 Va. 434, 436, 416 S.E.2d 435, 437 (1992) (internal
quotation marks and citations omitted).
ANALYSIS
Saunders contends that the language contained in Code
§§ 16.1-271 and 16.1-272 with respect to the treatment of
juvenile offenders as adult criminals is ambiguous,
contradictory, and confusing, but his argument tends to prove
the opposite. He says that the first paragraph of Code § 16.1-
271 precludes a juvenile court from taking jurisdiction over
offenses committed after the accused is adjudicated an adult
while the second paragraph purports to expand the statute’s
applicability to also preclude offenses pending but not disposed
of by the juvenile court at the time of the adult adjudication.
Thus, Saunders asserts, the first paragraph, standing
alone, would not have precluded the juvenile court from taking
jurisdiction over the three offenses now under review since they
occurred on September 7, 2007, prior to, rather than subsequent
to, the date of the shooting-into-an-occupied-dwelling offense
which occurred on September 21, 2007, and was the basis for his
adjudication as an adult on March 21, 2008. Saunders then makes
the following concession: “[T]he charges involved in this appeal
clearly fall within the ambit of the second paragraph of Section
16.1-271.”
6
With respect to Code § 16.1-272, Saunders, surprisingly,
does not come right out and say, as one might expect him to say,
that the statute applies to him and mandates his sentencing by
the court. Indeed, he tends to prove the opposite in the
following statement:
The Commonwealth’s argument that Section 16.1-272 does not
apply to youthful offenders who fall within the scope of
16.1-271 is one plausible interpretation of the General
Assembly’s intent but the defendant submits that the result
that only judges would sentence juveniles on their first
conviction as an adult but juries could sentence on any
later convictions, regardless of the severity of the
offenses, is not clearly evoked in the language of these
sections.
In our opinion, “[t]he Commonwealth’s argument that Section
16.1-272 does not apply to youthful offenders who fall within
the scope of 16.1-271” is the only plausible interpretation of
the General Assembly’s intent in its enactment of the two
statutes, and that intent could not have been more clearly
articulated. Code § 16.1-271 applies to “[a]ny juvenile who is
tried and convicted in a circuit court as an adult.” On the
other hand, Code § 16.1-272 applies “[i]n any case in which a
juvenile is indicted.”
When Saunders appeared before the circuit court for
sentencing on the three charges under review, he was not a
juvenile. He had been previously convicted as an adult on an
unrelated charge and given an adult sentence on June 6, 2008.
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The necessary conclusion, therefore, is that the jury was
correctly allowed to sentence Saunders on the three charges.
Finally, Saunders requests that we apply the ends of
justice exception in Rule 5:25 to consider the argument that any
procedure for jury sentencing of persons under the age of
eighteen must include a requirement that the jury be instructed
to consider the defendant’s youth in mitigation. Saunders cites
Roper v. Simmons, 543 U.S. 551 (2005), in which the Supreme
Court held that the execution of a juvenile was unconstitutional
under the Eighth Amendment. However, Saunders did not make the
argument in the circuit court, the Court of Appeals refused to
consider the argument, and he has not assigned error to the
Court of Appeals’ refusal. Given the circumstances of this
case, we will not consider it either.
CONCLUSION
We find no error in the judgment of the Court of Appeals.
Accordingly, we will affirm the judgment.
Affirmed.
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