COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Beales and Senior Judge Willis
Argued at Salem, Virginia
SHANDRE TRAVON SAUNDERS
OPINION BY
v. Record No. 0610-09-3 JUDGE RANDOLPH A. BEALES
APRIL 27, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Leyburn Mosby, Jr., Judge
David D. Embrey for appellant.
Susan M. Harris, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
Shandre Travon Saunders (appellant) was seventeen years old when a jury in the Circuit
Court for the City of Lynchburg convicted him of aggravated malicious wounding, use of a
firearm during the commission of a felony, and participating in a street gang. Over the objection
of appellant, the jury then considered sentencing for these convictions and determined that he
should serve a total sentence of 53 years in the penitentiary for his crimes. The trial court
imposed this sentence in a final order of conviction dated March 13, 2009. Appellant appeals his
sentence to this Court, arguing that the Virginia Code does not allow juries to fix sentences for
defendants who are not yet eighteen years of age. Given the posture presented in this case, we
find that the Code did permit jury sentencing here. Therefore, we find the trial court did not err
when it allowed the jury to fix appellant’s sentence, and we affirm the Circuit Court for the City
of Lynchburg.
I. BACKGROUND
Appellant, a sixteen-year-old boy when this case began, was charged via delinquency
petitions filed in the juvenile and domestic relations district (JDR) court on May 21, 2008 with
aggravated malicious wounding and use of a firearm in the commission of a felony. 1 The
Commonwealth filed a motion requesting that the JDR court certify the charges for trial in the
circuit court, pursuant to Code § 16.1-269.1(C), where the defendant could be tried as an adult
rather than as a juvenile. In compliance with that statute, the JDR court certified the aggravated
malicious wounding and use of a firearm in the commission of a felony charges to the grand jury
for the Circuit Court of the City of Lynchburg on June 11, 2008. On July 7, 2008, the grand jury
indicted appellant on these two charges. The grand jury at the same time indicted appellant on a
third charge, participating in a street gang, that was brought by direct indictment. 2 A trial date
was then set in the circuit court.
Before the JDR court had certified the two charges to the grand jury, the Circuit Court for
the City of Lynchburg convicted and sentenced appellant on June 6, 2008, for shooting into an
occupied dwelling 3 -- a charge that had previously been certified for trial in the circuit court
pursuant to Code § 16.1-269.1. Although the trial court had the option, pursuant to Code
§ 16.1-272, to sentence appellant as a juvenile for the crime of shooting into an occupied
1
Appellant aimed a firearm toward a gas station as he was standing in a parking lot. He
shot the firearm two or three times as a cab was driving down the road in front of the gas station,
and shot the cab driver in the head. The cab driver lived, but he was left paralyzed on his right
side, and had significant trouble talking.
2
Appellant confessed that he was involved in gang activity at the time of the shooting,
including wearing his gang’s colors and “throwing” his gang’s “blood signs.”
3
The incidents underlying this felony conviction were unrelated to the incidents
underlying the three charges that were presented to the grand jury on July 7, 2008 and that are
appealed here.
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dwelling, 4 the court decided to treat appellant as an adult and sentenced him to serve two years
in the penitentiary.
After entry of the June 6, 2008 conviction and in anticipation of the trial on the three
pending charges of aggravated malicious wounding, use of a firearm during the commission of a
felony, and participating in a street gang, the Commonwealth filed a notice with the trial court
requesting a jury trial both on appellant’s guilt and, should he be convicted, on fixing the
appropriate sentence for the three pending charges. Appellant objected to the Commonwealth’s
request that a jury determine his sentence, arguing that a jury was not allowed to sentence him
because he was still a juvenile. He argued that because Code § 16.1-271 did not specifically list
jury sentencing, and because Code § 16.1-272 specifically prohibited jury sentencing of
juveniles, the court – rather than a jury – should fix his sentence. At a pretrial hearing on this
issue, the trial court found that Code § 16.1-271 applied in this case and allowed the jury to
determine appellant’s sentence. Appellant was then tried by a jury and convicted of the three
felonies. The jury then fixed his sentence on the three convictions at 53 years in the penitentiary.
II. ANALYSIS
Code § 16.1-271 states, in pertinent part:
Any juvenile who is tried and convicted in a circuit court as an
adult under the provisions of this article [Article 7] 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
4
Under Code § 16.1-272(A), the trial court may sentence a juvenile as an adult, may
sentence a juvenile using any of the options available to a JDR court when disposing of a
delinquency petition, or may use a combination of both adult and juvenile sentencing options.
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magistrate or grand jury; the use of a warrant, summons, or capias
instead of a petition to initiate the case; adult bail; preliminary
hearing and right to counsel provisions; trial in a court having
jurisdiction over adults; and trial and sentencing as an adult. The
provisions of this article regarding a transfer hearing shall not be
applicable to such juveniles.
(Emphasis added.) Therefore, pursuant to the clear language of this statute, if a juvenile is
convicted in a trial court as an adult, a procedure permitted under Code § 16.1-272 after a JDR
court has certified the charge(s) pursuant to Code § 16.1-269.1, that juvenile is thereafter
“considered and treated as an adult in any criminal proceeding” that involves crimes that are
committed after his adult conviction or crimes that are pending at the time of his adult
conviction. Indeed, Code § 16.1-271 states that “[c]onviction 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.”
Appellant was convicted and sentenced as an adult on June 6, 2008, on the felony charge
of shooting into an occupied dwelling. At that time, the JDR court had not “disposed of” the
three then-pending charges that are appealed here. He was convicted as an adult pursuant to the
provisions of Code § 16.1-272, which is in the same article of the Code as Code § 16.1-271.
Therefore, given appellant met the preconditions established in the above-quoted portion of Code
§ 16.1-271 when he was convicted of shooting into an occupied dwelling, the trial court had to
“consider[] and treat[] [him] as an adult” during “[a]ll procedures and dispositions” on these
three subsequent indictments, “including, but not limited to” “trial and sentencing as an adult.”
Appellant does not argue that a jury could not determine his guilt on the three charges.
He argues only that the jury could not also fix his sentence after finding him guilty of aggravated
malicious wounding, use of a firearm during the commission of a felony, and participating in a
street gang. However, the language in Code § 16.1-271 does not limit the use of juries to
consideration of guilt, but instead requires “trial and sentencing as an adult” for “all procedures
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and dispositions applicable to adults” when a defendant has previously been convicted as an
adult, even if he is under the age of eighteen. 5 Clearly, juries determine sentences for adults.
See Code § 19.2-295 (requiring that a defendant’s sentence be “ascertained by the jury” in cases
where the jury determined the defendant’s guilt). Thus, Code § 16.1-271 plainly requires that a
person under the age of eighteen, such as appellant, who has become an “adult” in the eyes of the
criminal court, will be treated as an adult at every stage of the criminal process, including
sentencing by a jury when he is found guilty by a jury. 6
Appellant points to Code § 16.1-272, claiming that the trial court should have sentenced
him pursuant to the provisions of this statute. Subsection A of Code § 16.1-272 states:
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.
This subsection then lists three ways that a trial court can sentence a “juvenile.”
Appellant’s argument here ignores the fact that this appeal does not actually involve a
case “in which a juvenile” was indicted. Under Code § 16.1-271, once a person under the age of
eighteen has been sentenced as an adult, which is allowed initially under the provisions of Code
5
Code § 16.1-271 applies when a juvenile has previously been “tried and convicted in a
circuit court as an adult” under the provisions of Article 7, the same Article in which Code
§ 16.1-272 is found.
6
Appellant argues on brief that the trial court committed a due process error, basing his
argument on Roper v. Simmons, 543 U.S. 551 (2005), which held that the execution of a juvenile
was unconstitutional under the Eighth Amendment’s cruel and unusual punishment clause. As
he admits on brief, appellant did not make this argument at trial, and, thus, the argument is not
preserved under the general provisions of Rule 5A:18. He does not argue on brief that an
exception to Rule 5A:18 applies here. Therefore, we cannot address his due process argument.
See Arrington v. Commonwealth, 53 Va. App. 635, 641-42, 674 S.E.2d 554, 557 (2009) (noting
that an appellant must present his argument to the trial court or else the argument is waived on
appeal, and, although an appellant can request that the Court apply an exception to Rule 5A:18,
the Court will not apply an exception sua sponte).
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§ 16.1-272, that person is forever afterward treated as an “adult” for the purposes of criminal
prosecution in Virginia. Thus, even if some degree of tension exists between these two statutes,
any inconsistency between Code § 16.1-271 and Code § 16.1-272 is resolved by a literal reading
of these two statutes – once a “juvenile” has been sentenced as an adult in the circuit court
pursuant to Code § 16.1-272, such a defendant is no longer a “juvenile,” but instead is an
“adult.” Therefore, Code § 16.1-272 would no longer apply to such a defendant because he is
not a juvenile for the purpose of criminal prosecution and sentencing. This interpretation gives
clear meaning to the entirety of both code sections. See Broadnax v. Commonwealth, 24
Va. App. 808, 814-15, 485 S.E.2d 666, 668-69 (1997) (discussing interpretation of statutes and
declining to adopt Broadnax’s interpretation because “[t]o adopt a different construction would
render the statute strained, ambiguous, illogical, and in contravention of the legislature’s clear
intent”).
Appellant also argues that Ballard v. Commonwealth, 228 Va. 213, 321 S.E.2d 284
(1984), precludes jury sentencing in cases where a person under eighteen years old is the
defendant. However, the Supreme Court held in Ballard, which involved a juvenile who was
sentenced under Code § 16.1-272, only that a juvenile is not entitled to jury sentencing under
that statute as the General Assembly had not seen fit to allow jury sentencing under that statute.
The Supreme Court also pointed out that jury sentencing of adults is a statutory entitlement that
can be eliminated or granted by the legislature as it sees fit. Id. at 216-17, 321 S.E.2d at 286.
Here, unlike in Ballard, Code § 16.1-271 controlled appellant’s sentencing because he had
already been “tried and convicted in a circuit court as an adult under the provisions” of Article 7
before he was then tried for aggravated malicious wounding, use of a firearm during the
commission of a felony, and participating in a street gang – the convictions that are being
appealed here. Unlike the language in Code § 16.1-272, which specifically requires that the trial
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court sentence a juvenile defendant even if a jury determined his guilt, Code § 16.1-271 indicates
the legislature’s intent to apply to a defendant who is under the age of eighteen, but is an “adult”
for criminal trial purposes, all the rights, entitlements, and responsibilities that any adult criminal
defendant has, including all trial and all sentencing procedures and dispositions. Under the
Supreme Court’s analysis in Ballard, the legislature clearly can allow jury sentencing, or
disallow it, for adults and for juveniles. Thus, our holding here is entirely consistent with the
Supreme Court’s holding in Ballard. 7
III. CONCLUSION
We find that the trial court did not err when it allowed the jury to fix appellant’s sentence
on the three convictions of aggravated malicious wounding, use of a firearm during the
commission of a felony, and participating in a street gang because appellant was required to be
treated as an “adult” under the provisions of Code § 16.1-271. Therefore, we affirm the final
order of conviction and sentencing entered by the trial court on March 13, 2009.
Affirmed.
7
We also note that Ballard was decided in 1984. At that time, Code § 16.1-271 read,
“The trial or treatment of a juvenile as an adult pursuant to the provisions of this chapter shall not
preclude the juvenile court from taking jurisdiction of such juvenile for subsequent offenses
committed by that juvenile.” Code § 16.1-271 did not contain most of its current language until
1994 – ten years after the decision in Ballard. See 1994 Va. Acts 859, 949.
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