COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
JASON ANTHONY JACKSON
OPINION BY
v. Record No. 0119-98-2 JUDGE DONALD W. LEMONS
APRIL 6, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Charles L. McCormick, III, Judge
Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General;
Lisa R. McKeel, Assistant Attorney General,
on brief), for appellee.
Jason A. Jackson was convicted of one count of statutory
burglary in violation of Code § 18.2-91 and one count of petit
larceny in violation of Code § 18.2-96. On appeal, he argues
that the trial court erred in imposing a juvenile sentencing
option as a condition of suspending the execution of a prison
sentence. Because we hold that the trial court committed no
error, we affirm the convictions.
I. BACKGROUND
Jason A. Jackson was indicted for one count of statutory
burglary and one count of grand larceny arising from events that
occurred on or about April 16, 1997. On May 13, 1997, pursuant
to Code § 16.1-269.1(A), Jackson, a sixteen-year-old juvenile,
was transferred from the Halifax Juvenile and Domestic Relations
District Court to the Circuit Court of the County of Halifax to
be tried as an adult for both charges. At a hearing held on
June 30, 1997, Jackson appealed his transfer to the circuit
court. By order entered the same day, the court upheld the
transfer of the charges to the circuit court and permitted the
Commonwealth to seek an indictment.
On September 12, 1997, pursuant to a plea agreement,
Jackson pled guilty to the charge of statutory burglary and the
reduced charge of petit larceny. On December 12, 1997, the
trial court sentenced Jackson to ten years in prison for the
statutory burglary charge to be served concurrently with one
year in prison for the petit larceny charge. The court
suspended his entire sentence for both convictions upon the
conditions that Jackson be committed to the Department of
Juvenile Justice pursuant to Code § 16.1-285.1 until he turned
twenty-one, that Jackson complete the “Serious Offender Program”
of the State Department of Juvenile Justice, and that he be of
good behavior for ten years upon his release from the Department
of Juvenile Justice.
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II. CONDITIONAL SENTENCE
A trial court is permitted to sentence a juvenile offender
as an adult, under certain circumstances. Code § 16.1-272
provides in pertinent part:
(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 other than
capital murder, the court shall fix the
sentence without the intervention of a jury.
1. If a juvenile is convicted of a violent
juvenile felony, the sentence for that
offense and for all ancillary crimes shall
be fixed by the court in the same manner as
provided for all adults, but the sentence
may be suspended conditioned upon a
successful completion of such terms and
conditions as may be imposed in a juvenile
court upon disposition of a delinquency
case.
2. If the juvenile is convicted of any
other felony, the court may sentence or
commit the juvenile offender in accordance
with the criminal laws of this Commonwealth
or may in its discretion deal with the
juvenile in the manner prescribed in this
chapter for the hearing and disposition of
cases in the juvenile court, including, but
not limited to, commitment under
§ 16.1-285.1.
Code § 16.1-285.1 permits a trial court to sentence a
juvenile offender over the age of fourteen who is considered a
“serious offender.” A juvenile may be committed under Code
§ 16.1-285.1(A) if he or she was found guilty of an offense
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which would have been a felony if committed by an adult and if
either,
(i) the juvenile is on parole for an offense
which would be a felony if committed by an
adult, (ii) the juvenile was committed to
the state for an offense which would be a
felony if committed by an adult within the
immediately preceding twelve months, (iii)
the felony offense is punishable by a term
of confinement of greater than twenty years
if the felony was committed by an adult, or
(iv) the juvenile has been previously
adjudicated delinquent for an offense which
if committed by an adult would be a felony
punishable by a term of confinement of
twenty years or more, and the circuit court,
or the juvenile or family court, as the case
may be, finds that commitment under this
section is necessary to meet the
rehabilitative needs of the juvenile and
would serve the best interests of the
community, then the court may order the
juvenile committed to the Department of
Juvenile Justice for placement in a juvenile
correctional center for the period of time
prescribed pursuant to this section.
Code § 19.2-303 provides that, “[a]fter conviction, whether
with or without a jury, the court may suspend imposition of
sentence or suspend the sentence in whole or part and in
addition may place the accused on probation under such
conditions as the court shall determine . . . .”
Jackson pled guilty to statutory burglary, a felony, and
petit larceny, a misdemeanor. Had Jackson been found guilty of
a violent juvenile felony defined in Code § 16.1-228, the trial
judge would be required pursuant to Code § 16.1-272(A)(1) to
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sentence him as an adult, but the court could suspend the adult
sentence “conditional upon successful completion of such term
and conditions as may be imposed in a juvenile court upon
disposition of a delinquency case.” Because statutory burglary
is not considered a violent juvenile felony, the trial court
sentenced him pursuant to Code § 16.1-272(A)(2). Code
§ 16.1-272(A)(2) does not require the imposition of an adult
sentence, but authorizes it, and further authorizes a juvenile
sentence. Jackson argues that the trial court did not have the
authority under Code § 16.1-272(A)(2) to order a “combination of
sentences which impose a juvenile commitment and an adult prison
sentence . . . .” Jackson contends that the word “or” in the
text of Code § 16.1-272(A)(2) reflects a legislative intent to
prohibit a judge from sentencing a juvenile both as an adult and
as a juvenile “serious offender” pursuant to Code § 16.1-285.1.
We disagree. In Nuckoles v. Commonwealth, 12 Va. App.
1083, 407 S.E.2d 355 (1991), the defendant was convicted of
taking indecent liberties with a child in violation of Code
§ 18.2-370, and was sentenced to five years in the penitentiary,
which was suspended for a period of twenty years based upon
various conditions, including that “he serve twelve months in
jail to be followed by supervised probation.” Id. at 1084, 407
S.E.2d at 355. After his release from jail, the defendant was
arrested on new charges for a similar offense. The court held a
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revocation hearing, and the trial judge imposed the five year
suspended sentence, crediting him for the twelve months he
served in jail. See id. at 1084, 407 S.E.2d at 355.
The defendant in Nuckoles argued that “under Code
§ 18.2-370 a court has authority to sentence a person convicted
of a class six felony to one of two maximum punishments: either
twelve months in jail or five years in prison, but not both.” 1
Id. at 1085, 407 S.E.2d at 356. We disagreed and stated, “the
court imposed a five year penitentiary sentence and suspended
the execution of this sentence based on several conditions, one
of which was that the defendant serve a twelve-month jail term.”
Id. at 1085, 407 S.E.2d at 356. In upholding the trial court’s
revocation of the defendant’s suspended sentence, we stated:
Code § 19.2-303 allows a trial judge, after
conviction, to suspend a sentence in whole
or in part, and in addition, to place the
defendant on probation “under such
conditions as the court shall determine.”
The statute places wide discretion in the
trial court to determine what conditions are
to be imposed in each particular case. The
Virginia Supreme Court has noted the wide
latitude the legislature has afforded trial
courts in fashioning rehabilitative programs
for defendants. Inherent in the power
granted under § 19.2-303 . . . to suspend
imposition or execution [of sentence,] is
1
Code § 18.2-10 authorizes punishments for conviction of a
felony. For Class 6 felonies, punishment is "a term of
imprisonment of not less than one year nor more than five years,
or in the discretion of the jury or the court trying the case
without a jury, confinement in jail for not more than twelve
months and a fine of not more than $2,500, either or both."
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the power to place conditions on such
suspension.
Id. at 1085, 407 S.E.2d at 356 (citations omitted). The “only
limitation placed upon the discretion of the trial court in its
determination of what conditions are to be imposed is that a
condition be ‘reasonable.’” Id. at 1086, 407 S.E.2d at 356
(citation omitted).
In the case before us, Jackson pled guilty to statutory
burglary and petit larceny. At the sentencing hearing,
Jackson’s counsel requested that the court sentence him as a
“juvenile as a serious offender” to keep Jackson out of the
penitentiary system. The Commonwealth stipulated that Jackson
qualified as a serious offender under the definition of the
statute but opposed the court’s sentencing him under this
statute, citing two previous commitments of Jackson to a
juvenile facility.
The court considered Jackson’s age, physical size, and
previous offenses, stating, “we could put him in this serious
offender program and give him a chance down there but at the
same time let it be known that if he didn’t take advantage of
it, of that chance, then I would transfer him over to the adult
system. . . .” In deciding to sentence Jackson as a “serious
offender” under Code § 16.1-285.1, the court intended to benefit
Jackson by keeping him out of the penitentiary system as
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requested by his counsel. If we adopted the construction of
Code § 16.1-272(A)(2) advanced by Jackson, less serious
offenders would be deprived of an option given juveniles
convicted of a “violent juvenile felony.” We do not believe the
legislature intended such a result.
As we stated in Nuckoles,
[t]he obvious purpose of affording trial
courts discretion in matters of suspension
and probation is to provide a remedial tool
to use in the rehabilitation of criminals.
A jail condition serves a punitive function,
demonstrating to offenders the seriousness
of their conduct. Moreover, this condition
also serves as a deterrent by giving
offenders a taste of what lies ahead if they
do not reform their conduct.
Id. at 1086, 407 S.E.2d at 356.
We find nothing in the record indicating that the
imposition of a juvenile sentencing option as a condition of
suspending the execution of Jackson’s prison sentence was
unreasonable. We therefore affirm the sentence imposed by the
trial court.
Affirmed.
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Benton, J., concurring.
I adhere to the view I expressed in Nuckoles v.
Commonwealth, 12 Va. App. 1083, 1087-92, 407 S.E.2d 355, 357-60
(1991) (Benton, J., dissenting), that absent legislative
authorization a trial judge may not impose incarceration in jail
as a condition for suspending a prison sentence. However, I
believe the juvenile offender sentencing statute contains that
authorization, and, therefore, I agree with the majority that
the trial judge did not err.
Code § 16.1-272 expressly grants the trial judge the
discretion to suspend a prison sentence imposed on a juvenile
who was tried as an adult and convicted of a violent felony. It
states that “the sentence may be suspended conditioned upon
successful completion of such terms and conditions as may be
imposed in a juvenile court upon disposition of a delinquency
case.” Code § 16.1-272(A)(1). Given this express grant of
discretion under Code § 16.1-272(A)(1), which applies to violent
juvenile felonies, I find no logical reason to deny similar
authority under Code § 16.1-272(A)(2), which applies to
non-violent juvenile felonies. If the trial judge has
discretion to sentence a violent juvenile felon as an adult, yet
commit the juvenile to the juvenile system as a condition of a
suspended sentence, the legislature surely intended the trial
judge to have the same discretion when sentencing a non-violent
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juvenile felon. To hold otherwise would mean that violent
juvenile felons who are sentenced as adults could be committed
to the juvenile system while trial judges who decide to sentence
non-violent juvenile felons as adults would have no choice but
to commit the juvenile to the adult prison system. I believe
the legislature did not intend such an anomalous result.
By placing the various sentencing schemes within one
statute, the legislature has given a clear indication that it
intended to grant trial judges authorization to exercise the
same discretion under Code § 16.1-272(A)(2) as the trial judge
would exercise under Code § 16.1-272(A)(1). “[A] fundamental
rule of statutory construction requires that courts view the
entire body of legislation and the statutory scheme to determine
the ‘true intention of each part.’ In construing statutes,
courts should give the fullest possible effect to the
legislative intent embodied in the entire statutory enactment.”
Virginia Real Estate Bd. v. Clay, 9 Va. App. 152, 157, 384
S.E.2d 622, 625 (1989) (citation omitted).
For these reasons, I concur in affirming the trial judge’s
decision.
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