COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia
RANDY PRESSLEY, S/K/A
RANDY NICHOLAS PRESSLEY
MEMORANDUM OPINION * BY
v. Record No. 3019-96-4 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
Emil P. Moschella for appellant.
John H. McLees, Jr., Assistant Attorney
General (Richard Cullen, Attorney General, on
brief), for appellee.
Randy Nicholas Pressley (appellant) appeals his sentence for
attempted robbery and one count of use of a firearm in the
commission of a felony. He contends that the trial court erred
in believing that it lacked the discretion to sentence him as a
juvenile. We find no error in the court's decision and affirm.
We limit our discussion of the facts and arguments to those
which are strictly relevant to our decision. When appellant was
seventeen years old, he used an air rifle to attempt to rob two
men. The Commonwealth filed petitions in the juvenile and
domestic relations district court charging appellant with one
count each of attempted robbery and use of a firearm in the
commission of a felony. After waiving a transfer hearing,
appellant was transferred to circuit court where he was indicted
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
by a grand jury for the same crimes. Appellant subsequently
pleaded guilty to both counts.
A Presentence Investigation Report prepared on October 8,
1996, describes appellant as eighteen years old and the upcoming
sentencing as "his first adult felony sentencing event." Prior
to the sentencing hearing, appellant filed a memorandum arguing
that he may and should be sentenced as a juvenile because he had
not committed a "violent juvenile felony" which would require he
be sentenced as an adult.
Appellant was sentenced on November 8, 1996, one month and
three days after his eighteenth birthday. At the sentencing
hearing, the Commonwealth argued that the minimum mandatory
three-year sentence applied whether appellant was treated as a
juvenile or an adult, but that the court should impose a longer
sentence. The court sentenced appellant to five years
incarceration for attempted robbery, with four years and six
months suspended, and three years incarceration for use of a
firearm during a felony.
Under the relevant provisions of Title 16.1, it is clear
that the circuit court had the authority to sentence appellant
either as a juvenile or as an adult. 1 In appellant's Memorandum
1
Code § 16.1-272 provides in relevant part:
Power of circuit court over juvenile
offender. 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
2
re Sentencing submitted for the court's consideration, the
appellant asked the court to consider imposing a sentence under
Code § 16.1-272(A). He also asked the court to consider other
sentencing provisions of Title 16.1, including Code §§ 16.1-278.8
and 16.1-284.1. After considering the Memorandum and the
argument of both counsel, the trial court declined to sentence
appellant under the juvenile code, stating:
Mr. Pressley, your counsel has made a very
otherwise provided with regard to
sentencing. . . .
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 adults, but 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.
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 § 16.1-284 provides:
When adult sentenced for juvenile offense.
When the juvenile court sentences an adult
who has committed, before attaining the age
of eighteen, an offense which would be a
crime if committed by an adult, the court may
impose the penalties which are authorized to
be imposed on adults for such violations, not
to exceed the punishment for a Class 1
misdemeanor for a single offense or multiple
offenses.
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strong argument for treatment under the
Youthful Offender Act but one of the
exclusions of the Youthful Offender Act is
for violent felonies and that's where this
falls. I can not treat you as a juvenile.
On appeal, the appellant concludes from these statements by
the court that it erroneously failed to properly exercise its
discretion, contending inter alia, that the court did not believe
it had the authority to do so. We disagree.
Appellant first contends that the court erred in concluding
it could not sentence appellant as a juvenile under Code
§ 16.1-269.1, because of his "violent felony." Appellant
correctly points out that neither of his offenses of conviction,
attempted armed robbery and use of a firearm in the commission of
a felony, is enumerated as a "violent juvenile felony" under Code
§ 16.1-269.1. However, as is argued by the Commonwealth, the
court's reference to "violent felony" does not ineluctably lead
to the conclusion that it was referring to the "violent juvenile
felony" provision of Code § 16.1-269.1 when it stated its
findings. Indeed, the record, taken as a whole, supports the
conclusion that the court had before it and gave consideration to
all the relevant factors under the juvenile sentencing provisions
in determining whether appellant was more properly sentenced
under the criminal law applicable to adults or that governing the
disposition of juveniles, and that, in announcing its finding, it
was not particularly addressing the requirements for sentencing
under Code § 16.1-269.1. In the absence of clear evidence to the
4
contrary, "we presume that a trial judge . . . properly applied
the law." Brown v. Commonwealth, 8 Va. App. 126, 133, 380 S.E.2d
8, 12 (1989) (citing Yarborough v. Commonwealth, 217 Va. 971,
978, 234 S.E.2d 286, 291 (1977)). Viewing the evidence in the
record before us as a whole, we find it insufficient to rebut
this presumption.
For the reasons stated in this opinion, we affirm.
Affirmed.
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