Brown v. Com.

PRESENT: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.,

and Carrico and Russell, S.JJ.

DWAYNE JAMAR BROWN

OPINION BY

v. Record No. 090161 JUSTICE S. BERNARD GOODWYN

January 15, 2010

COMMONWEALTH OF VIRGINIA

DEMETRIOUS OMAR BROWN

v. Record No. 090201

COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In these appeals, we consider whether a juvenile who has

been tried as an adult and found guilty of a crime that has a

mandatory minimum sentence may be sentenced to a juvenile

disposition, pursuant to Code § 16.1-272, rather than the

mandatory minimum sentence. As a preliminary matter, we also

consider whether the Commonwealth properly preserved its bases

for appeal as required by Rule 5A:18.

Relevant Facts and Proceedings

When Demetrious Omar Brown (Demetrious) was sixteen and

his cousin Dwayne Jamar Brown (Dwayne) was fifteen, they

participated in the armed robbery of a group of people who had

gathered in an apartment to play cards. Demetrious and Dwayne

both waived their rights to a preliminary hearing in the

juvenile and domestic relations district court under Code

§ 16.1-270, and were certified for trial as adults under Code

§ 16.1-269.1. In the circuit court, Demetrious and Dwayne pled

guilty to numerous charges, including five counts of use of a

firearm in the commission of a felony in violation of Code

§ 18.2-53.1. 1

Demetrious’ Sentencing Hearing

The Circuit Court of Bedford County held Demetrious’

sentencing hearing on March 25, 2008. Demetrious’ counsel

argued for Demetrious to receive a juvenile disposition on the

five convictions for use of a firearm in the commission of a

felony. The Commonwealth argued that Demetrious’ five

convictions for use of a firearm required the circuit court to

impose the mandatory minimum sentence set forth for each in the

use of a firearm statute, Code § 18.2-53.1.

The Commonwealth argued that under Bullock v.

Commonwealth, 48 Va. App. 359, 375-77, 631 S.E.2d 334, 342-43

(2006), a trial court’s broad discretion over juvenile

sentences in Code § 16.1-272 did not override the mandatory

minimum sentences required by Code § 18.2-53.1. The

Commonwealth stated to the circuit court that in Bullock,

the Court did deal with the situation where there was

a request for a juvenile disposition . . . and there

was a conflict in the statutes as to whether [or] not

1

Each defendant also pled guilty to burglary with intent

to commit robbery, discharge a firearm in an occupied dwelling,

and eleven counts of robbery.

2

the broad discretion in the juvenile sentencing

statute could override the mandatory provisions of

the Use of Firearm statute. The Court of Appeals

[held] that it could not, in fact, override that.

The circuit court responded by taking a recess to review

Bullock. Thereafter, the Commonwealth reiterated that it was

“relying on Bullock.”

The circuit court held that Bullock prevented the circuit

court from imposing a juvenile disposition on a use of a

firearm charge under Code § 16.1-272(A)(1), but that the court

could impose a juvenile disposition pursuant to Code § 16.1-

272(A)(2). As his sentence on the use of a firearm in the

commission of a felony charges, the circuit court ordered

Demetrious committed to the Department of Juvenile Justice

until his twentieth birthday. See Code § 16.1-285.1. The

circuit court imposed adult time sentences for the remaining

offenses, with all sentences to run concurrently, for a total

period of incarceration of twenty-five years, and suspended

that adult time.

Dwayne’s Sentencing Hearing

The Circuit Court of Bedford County held Dwayne’s

sentencing hearing on April 4, 2008. Dwayne’s counsel argued

for Dwayne to receive a juvenile disposition on the five

convictions for use of a firearm in the commission of a felony.

The Commonwealth recommended that Dwayne receive the mandatory

3

minimum sentence for each of the five convictions for use of a

firearm in the commission of a felony. However, the

Commonwealth also stated, “Obviously the Court has discretion

to treat [Dwayne] as a juvenile, treat him as an adult or to

come up with a split disposition in the case, sentence him to a

juvenile facility until he’s eighteen and then transfer him to

an adult facility.” Acknowledging that the circuit court

sentenced Demetrious as a juvenile, the Commonwealth noted

Dwayne’s more extensive prior record and stated, “I really see

nothing to be gained by treating Dwayne Brown as a juvenile in

this case.” The prosecutor did not mention the Bullock

decision or the reasoning stated therein.

The circuit court classified Dwayne’s convictions for use

of a firearm in the commission of a felony as “non-violent

juvenile felonies,” imposed a juvenile disposition for those

convictions under Code § 16.1-272(A)(2) and committed Dwayne to

the Department of Juvenile Justice until his eighteenth

birthday. As to the remaining convictions, the judge gave

Dwayne “a sentence of 25 years in the penitentiary, suspended

after the service of 24 months in jail,” commencing on his

eighteenth birthday.

Commonwealth’s Appeal

The Court of Appeals granted the Commonwealth’s appeal as

to the sentences imposed upon Demetrious and Dwayne for the

4

convictions of use of a firearm in the commission of a felony.

Upon a motion by the Commonwealth, the two cases were

consolidated. Both defendants claimed that the Commonwealth

had failed to properly preserve for appeal, as required by Rule

5A:18, its argument that the circuit court did not have the

discretion to sentence the defendants to juvenile dispositions

on the use of a firearm charges. In an unpublished opinion,

the Court of Appeals held that the Commonwealth had complied

with Rule 5A:18 in both cases, and that the circuit court erred

when it imposed juvenile dispositions upon Demetrious and

Dwayne instead of the mandatory minimum sentences prescribed in

Code § 18.2-53.1. The Court of Appeals vacated the sentences

imposed for each defendant’s convictions and remanded the

proceedings against each defendant for resentencing consistent

with its opinion. Commonwealth v. Brown, Record Nos. 0919-08-

3, 0920-08-3 (Nov. 25, 2008).

Analysis

A. Rule 5A:18

On appeal to this Court, both Demetrious and Dwayne argue

that the Commonwealth failed to preserve for appeal, as

required by Rule 5A:18, its argument that the circuit court did

not have the discretion to sentence the defendants to juvenile

dispositions on their convictions for use of a firearm in the

commission of a felony. They claim that the Court of Appeals

5

erred in holding that the Commonwealth satisfied the

requirements of Rule 5A:18. 2 Because these appeals involve two

separate sentencing hearings, we will separately analyze the

relevant issues.

1. Demetrious Brown v. Commonwealth

Demetrious contends that under Rule 5A:18 the Commonwealth

did not preserve the sentencing issue for appeal because the

Commonwealth did not object to the court’s imposition of a

juvenile disposition upon Demetrious. The Commonwealth

responds that it satisfied Rule 5A:18 by making the circuit

court aware of its position on mandatory sentencing. The

Commonwealth contends that it argued consistently that Code

§ 18.2-53.1 and Bullock required the circuit court to impose

the mandatory minimum sentences specified in Code § 18.2-53.1

and limited the circuit court’s ability to sentence Demetrious

as a juvenile. We agree with the Commonwealth.

As a question of law, the interpretation of Rule 5A:18

requires de novo review. Jay v. Commonwealth, 275 Va. 510,

517, 659 S.E.2d 311, 315 (2008) (applying de novo review to an

2

The Commonwealth was the appellant in the Court of

Appeals and, upon our review, must be held to the requirement

that “[n]o ruling of the trial court . . . will be considered

as a basis for reversal unless the objection was stated

together with the grounds therefor at the time of the ruling

. . . .” Rule 5A:18. Cf. Whitehead v. Commonwealth, 278 Va.

105, 114-15, 677 S.E.2d 265, 270 (2009), in which case the

Commonwealth was the appellee.

6

interpretation of Rule 5A:20). Rule 5A:18 requires a litigant

to make timely and specific objections, so that the trial court

has “an opportunity to rule intelligently on the issues

presented, thus avoiding unnecessary appeals and reversals.”

West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278

(2004). The Court of Appeals has held that a litigant may

satisfy Rule 5A:18 in multiple ways. Lee v. Lee, 12 Va. App.

512, 515, 404 S.E.2d 736, 738 (1991). Moreover, in reference

to Rule 5A:18’s Supreme Court Rule counterpart, Rule 5:25, this

Court recently stated that Code § 8.01-384 controls our

interpretation of the rule. Helms v. Manspile, 277 Va. 1, 7,

671 S.E.2d 127, 130 (2009). Code § 8.01-384(A) should likewise

inform an interpretation of Rule 5A:18.

Code § 8.01-384(A) provides as follows:

Formal exceptions to rulings or orders of the court

shall be unnecessary; . . . it shall be sufficient

that a party, at the time the ruling or order of the

court is made or sought, makes known to the court the

action which he desires the court to take or his

objections to the action of the court and his grounds

therefor; . . . . Arguments made at trial via

written pleading, memorandum, recital of objections

in a final order, oral argument reduced to

transcript, or agreed written statements of facts

shall, unless expressly withdrawn or waived, be

deemed preserved therein for assertion on appeal.

Under Code § 8.01-384(A) and our analysis in Helms, if a trial

court is aware of a litigant’s legal position and the litigant

did not expressly waive such arguments, the arguments remain

7

preserved for appeal. Helms, 277 Va. at 7, 671 S.E.2d at 129-

30.

The Commonwealth preserved for appeal its arguments

concerning the issue of Demetrious’ sentences because the

Commonwealth made the circuit court aware of its position. At

Demetrious’ sentencing hearing, the Commonwealth argued that

the mandatory minimum sentence applied to Demetrious’ five

convictions for use of a firearm in the commission of a felony

because Bullock controlled the circuit court’s sentencing

determination. The Commonwealth argued, expressly relying upon

the Bullock decision, that the circuit court lacked discretion

to impose a juvenile disposition under Code § 16.1-272 where a

juvenile tried as an adult was found guilty of violating Code

§ 18.2-53.1. Even after the circuit court took a recess to

review Bullock, the Commonwealth reiterated that its argument

relied on Bullock.

The record indicates that the circuit court understood the

Commonwealth’s position; the circuit court attempted to

harmonize Bullock, Code § 18.2-53.1’s mandatory language and

Code § 16.1-272’s juvenile provisions. Because the circuit

court was aware of and had acknowledged the Commonwealth’s

position, which the Commonwealth never expressly waived, and

the circuit court had “an opportunity to rule intelligently on

the issues presented,” West, 43 Va. App. at 337, 597 S.E.2d at

8

278, the Commonwealth preserved for appeal its argument that

the circuit court was required to impose the statutorily

mandated sentences upon Demetrious. Accordingly, we affirm the

Court of Appeals in holding that the Commonwealth complied with

Rule 5A:18 in Demetrious’ case.

2. Dwayne Brown v. Commonwealth

Dwayne likewise contends that the Commonwealth failed to

preserve for appeal, in the manner required by Rule 5A:18, its

argument that the circuit court lacked the discretion to

sentence him as a juvenile pursuant to Code § 16.1-272, rather

than in accordance with the mandatory minimum sentencing

provisions of Code § 18.2-53.1. Dwayne argues not only that

the Commonwealth failed to object when the circuit court

imposed a juvenile disposition, but also that the Commonwealth

conceded that the circuit court had the authority to sentence

Dwayne as a juvenile. Moreover, Dwayne contends that the

Commonwealth did not prove good cause or a miscarriage of

justice necessary to allow the Court of Appeals to review the

unpreserved issue concerning his sentencing.

The Commonwealth responds by asserting that the circuit

court was aware of the mandatory sentencing issue, in part

because Dwayne’s sentencing shared common facts with

Demetrious’ sentencing and took place only ten days later

before the same judge. The Commonwealth argues that its

9

attorney, the same attorney that prosecuted Demetrious’ case,

did not concede the court’s authority to impose a juvenile

disposition, but rather asked that the mandatory minimum

sentences be imposed.

At Dwayne’s sentencing hearing, the Commonwealth requested

that the circuit court apply the mandatory minimum sentence,

but it failed to argue that the circuit court did not have the

discretion to sentence Dwayne as a juvenile. The Commonwealth

neither referenced Bullock nor Code § 18.2-53.1 to argue that

the circuit court was required to impose the mandatory minimum

sentences. In fact, the Commonwealth acknowledged the circuit

court’s discretion by stating: “Obviously the Court has

discretion to treat [Dwayne] as a juvenile, treat him as an

adult or to come up with a split disposition in the case,

sentence him to a juvenile facility until he’s eighteen and

then transfer him to an adult facility.”

The Commonwealth cannot rely on the arguments it made

during Demetrious’ sentencing hearing to demonstrate it

satisfied Rule 5A:18 at Dwayne’s hearing. Though the same

Commonwealth’s attorney prosecuted both Demetrious and Dwayne,

Dwayne’s hearing was a separate proceeding in which he was

represented by a different defense attorney. The Commonwealth,

at Dwayne’s hearing, did not put the circuit court on notice of

the Commonwealth’s argument that the circuit court did not have

10

the discretion to impose a juvenile sentence upon Dwayne.

Because the Commonwealth did not, during Dwayne’s proceedings

before the circuit court, articulate an argument that the

circuit court did not have the authority to impose a juvenile

sentence upon Dwayne, the issue was not preserved for appeal.

On appeal, a litigant may raise an unpreserved issue based

on the ends of justice if the error “was ‘clear, substantial

and material.’” West, 43 Va. App. at 338, 597 S.E.2d at 279

(quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d

8, 11 (1989)); see Rule 5A:18. This Court has stated that

Rule 5A:18, like our Rule 5:25, allows an appellate

court to consider a matter not preserved by

objection in the trial court “to attain the ends of

justice.” Application of the ends of justice

exception is appropriate when the judgment of the

trial court was error and application of the

exception is necessary to avoid a grave injustice or

the denial of essential rights.

Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433

(2005).

The Commonwealth has not demonstrated that Rule 5A:18’s

ends of justice provision is applicable in this case. Because

the Commonwealth stated to the circuit court that it

“[o]bviously . . . has discretion to treat [Dwayne] as a

juvenile,” we conclude that the Commonwealth has not shown that

the circuit court committed a clear, substantial and material

11

error, or that the ends of justice exception is necessary to

avoid a grave injustice or the denial of essential rights.

We hold that with respect to the appeal in the matter of

Dwayne Brown v. Commonwealth, the Commonwealth did not comply

with Rule 5A:18, and thus failed to preserve for appeal its

argument that the circuit court did not have the discretion to

sentence Dwayne as a juvenile on the use of a firearm charges.

Therefore, we reverse the judgment of the Court of Appeals

vacating Dwayne’s juvenile disposition for the use of a firearm

in the commission of a felony convictions, and reinstate the

sentence imposed by the circuit court.

B. Code § 18.2-53.1 and Code § 16.1-272

Demetrious argues that the Court of Appeals erred when it

vacated and remanded the circuit court’s juvenile disposition

for his five convictions for use of a firearm in the commission

of a felony. Demetrious argues that the circuit court

correctly sentenced him as a juvenile because Code § 16.1-

272(A)(2) gives the court discretion to forego the mandatory

minimum sentences required by Code § 18.2-53.1.

The Commonwealth responds that the Court of Appeals

correctly held that the circuit court erred in imposing a

juvenile disposition under Code § 16.1-272. The Commonwealth

argues that the Court of Appeals was correct in holding that

the circuit court should have considered Code § 16.1-272(A)(1)

12

instead of Code § 16.1-272(A)(2) in sentencing Demetrious and

that the language in Code § 18.2-53.1 requires the circuit

court to impose a mandatory minimum sentence on juveniles tried

as adults and found guilty of use of a firearm in the

commission of a felony. We agree with the Commonwealth.

In determining whether the mandatory language in Code

§ 18.2-53.1 limited the circuit court’s discretion to sentence

Demetrious as a juvenile under Code § 16.1-272, we must first

closely examine the relevant statutes. The statute concerning

use or display of a firearm in committing a felony, Code

§ 18.2-53.1, states in relevant part:

Violation of this section shall constitute a separate

and distinct felony and any person found guilty

thereof shall be sentenced to a mandatory minimum

term of imprisonment of three years for a first

conviction, and to a mandatory minimum term of five

years for a second or subsequent conviction under the

provisions of this section. Such punishment shall be

separate and apart from, and shall be made to run

consecutively with, any punishment received for the

commission of the primary felony.

Code § 18.2-12.1 defines “mandatory minimum” as follows:

“Mandatory minimum” wherever it appears in this Code

means, for purposes of imposing punishment upon a

person convicted of a crime, that the court shall

impose the entire term of confinement, the full

amount of the fine and the complete requirement of

community service prescribed by law. The court shall

not suspend in full or in part any punishment

described as mandatory minimum punishment.

13

Code § 16.1-272(A)(1)-(2), setting forth provisions relating to

the powers of a circuit court in the trial and sentencing of

juveniles, provides 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.

1. If a juvenile is convicted of a violent

juvenile felony, for that offense and for all

ancillary crimes the court may order that (i) the

juvenile serve a portion of the sentence as a serious

juvenile offender under § 16.1-285.1 and the

remainder of such sentence in the same manner as

provided for adults; (ii) the juvenile serve the

entire sentence in the same manner as provided for

adults; or (iii) the portion of the sentence to be

served in the same manner as provided for adults 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

including, but not limited to, commitment under

subdivision 14 of § 16.1-278.8 or § 16.1-285.1.

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 or may in its discretion impose an

adult sentence and suspend the sentence conditioned

upon successful completion of such terms and

conditions as may be imposed in a juvenile court upon

disposition of a delinquency case.

After Demetrious, a juvenile, waived in writing the

jurisdiction of the juvenile and domestic relations district

14

court and his right to a preliminary hearing, the juvenile

court transferred and certified Demetrious for criminal

proceedings in the circuit court. See Code § 16.1-269.1; Code

§ 16.1-270. Demetrious was indicted, tried in the same manner

as provided for adults, and found guilty of numerous crimes,

including five counts of use of a firearm in the commission of

a felony.

Code § 18.2-53.1 clearly states that any person found

guilty of use of a firearm in the commission of a felony shall

be sentenced to a mandatory minimum term of imprisonment. At

the same time, however, Code § 16.1-272(A)(1) - (2) gives a

circuit court the discretion to sentence a juvenile tried as an

adult to a juvenile disposition rather than sentencing the

juvenile as an adult. Thus, it appears that the provisions of

Code § 16.1-272 and Code § 18.2-53.1 are in conflict with each

other regarding whether a circuit court must impose an

applicable mandatory minimum sentence upon a juvenile tried as

an adult.

An ordinary rule of statutory construction serves to

resolve the conflict. “ ‘[W]hen one statute speaks to a

subject in a general way and another deals with a part of the

same subject in a more specific manner, the two should be

harmonized, if possible, and where they conflict, the latter

prevails.’ ” Thomas v. Commonwealth, 244 Va. 1, 22-23, 419

15

S.E.2d 606, 618 (1992) (quoting Virginia Nat’l Bank v. Harris,

220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)).

This Court in Thomas considered whether a juvenile

convicted of capital murder by a jury should be sentenced by a

judge pursuant to Code § 16.1-272’s juvenile provisions, or

sentenced by a jury under the death penalty statutes. 244 Va.

at 21, 419 S.E.2d at 617. We resolved the apparent conflict

between the juvenile provision and the death penalty statutes

by applying the death penalty statutes. The death penalty

statutes were applicable because, while the statutes all dealt

with punishing criminal offenders, the death penalty statutes

addressed the specific crime charged. In contrast, the

juvenile provisions in Code § 16.1-272 used general language

applicable to a range of offenses and did not contain a set

penalty. Id. at 22-23, 419 S.E.2d at 618. 3

In the present case, Code § 18.2-53.1 prescribes a

specific penalty for individuals found guilty of use of a

firearm in the commission of a felony. It requires a mandatory

minimum of three years imprisonment for the first conviction

and five years for subsequent convictions. Code § 16.1-272

only contains general language on sentencing and does not set

3

We nevertheless acknowledge that in Roper v. Simmons, the

Supreme Court of the United States held that the Eighth and

Fourteenth Amendments forbid the imposition of the death

16

forth specific penalties. The rules of statutory construction,

as exemplified in Thomas, require us to resolve the apparent

conflict between Code § 18.2-53.1 and Code § 16.1-272 by

applying Code § 18.2-53.1, which is the more specific statute

on sentencing for the specific firearms offenses involved here.

We hold that the Court of Appeals was correct in

determining that the charges against Demetrious for use of a

firearm were ancillary to his violent juvenile felony charges

of robbery and that Code § 16.1-272(A)(1) was the proper

subsection of the statute for the circuit court to consider in

sentencing Demetrious. However, the result would be the same

if the circuit court could have sentenced Demetrious pursuant

to Code § 16.1-272(A)(2). Code § 18.2-53.1 requires any person

convicted of that crime to serve a mandatory minimum period of

incarceration, even if that person may be subject to sentencing

under Code § 16.1-272. 4

We conclude, therefore, that the Court of Appeals

correctly held with respect to the appeal in the matter of

Demetrious Brown v. Commonwealth that the circuit court erred

penalty on offenders who were under age 18 when their crimes

were committed. 543 U.S. 551, 568 (2005).

4

In comparison, the mandatory minimum sentence is not

applicable when a juvenile court retains jurisdiction and a

juvenile is tried as a juvenile because, in such an instance,

the juvenile is adjudicated delinquent rather than found guilty

of a specific crime. See Code § 16.1-273(A); Code § 16.1-308;

Code § 16.1-228.

17

when it sentenced Demetrious to a juvenile disposition under

Code § 16.1-272 instead of imposing the mandatory minimum

sentences required by Code § 18.2-53.1. Accordingly, we affirm

the Court of Appeals’ judgment as it relates to Demetrious.

Conclusion

In summary, we will reverse the judgment of the Court of

Appeals in Dwayne’s appeal because the Commonwealth failed to

preserve the sentencing issue as required by Rule 5A:18, and we

will enter final judgment affirming the judgment of the circuit

court with respect to that case. With regard to Demetrious’

appeal, we will affirm the judgment of the Court of Appeals.

Record No. 090161 – Reversed and final judgment.

Record No. 090201 – Affirmed.

JUSTICE KOONTZ, dissenting.

I respectfully dissent. In my view, the Court of Appeals

and now the majority here in these consolidated appeals have

misconstrued the pertinent statutory scheme embodied within the

Juvenile and Domestic Relations District Court Law, Code

§ 16.1-226 et seq. (“juvenile law”), in which the issue of the

“apparent conflict” between the provisions of Code § 16.1-272

and Code § 18.2-53.1 arises. Specifically, I disagree with the

conclusion reached by the majority that Code § 18.2-53.1 is the

more specific of these two statutes and, therefore, the

mandatory minimum sentencing provisions of this statute limit

18

the circuit court’s discretion to sentence a juvenile tried as

an adult pursuant to the sentencing alternatives provided by

Code § 16.1-272.

Initially, it should be noted that it is difficult to

reconcile the patent disparity between the results occasioned

by the majority’s decision in the appeal of Dwayne Jamar Brown

and its decision in the appeal of Demetrious Omar Brown. That

disparity flows from the majority’s conclusion that in the case

of Dwayne Jamar Brown the Commonwealth failed to preserve the

substantive issue in its appeal to the Court of Appeals as

required by Rule 5A:18. The Court of Appeals had held that in

both cases the Commonwealth had preserved the issue in accord

with Rule 5A:18. I agree with that holding for the reasons

stated by the Court of Appeals. Commonwealth v. Brown, Record

No. 0919-08-3, slip op. at 5-8 (Nov. 25, 2008). Beyond

question, the record establishes that the experienced and able

circuit court judge who presided over both of these cases was

well aware of the Commonwealth’s position that the court was

required to apply the mandatory sentencing provisions of Code

§ 18.2-53.1.

Nevertheless, in the case of Dwayne Jamar Brown, I will

not belabor the point because the majority’s reversal of the

Court of Appeals’ holding on this procedural issue in that case

effectively moots the substantive issue and has the practical

19

effect of a holding that the trial court was not required to

apply the sentencing terms of Code § 18.2-53.1 in that case.

This result in the case of Dwayne Jamar Brown is consistent

with my view of the substantive issue presented in both appeals

now before this Court. Accordingly, I will confine my

subsequent analysis to the substantive issue raised in the

appeal of Demetrious Omar Brown (hereafter, “Demetrious”).

It is axiomatic that with the General Assembly’s enactment

of the juvenile law, there is an intended distinction between a

court’s permitted imposition of a sentence of imprisonment upon

an adult person for the violation of a criminal statute and the

dispositional alternatives available to a court to impose a

sentence upon a similarly situated “juvenile,” defined as “a

person less than 18 years of age” in Code § 16.1-228. One of

the purposes of the juvenile law is “[t]o protect the community

against those acts of its citizens, both juveniles and adults,

which are harmful to others and to reduce the incidence of

delinquent behavior and to hold offenders accountable for their

behavior.” Code § 16.1-227(4). To that end, the juvenile law

“shall be construed liberally and as remedial in character.”

Code § 16.1-227.

In this context, the juvenile law draws a bright-line

distinction between a juvenile who is fourteen years of age or

older at the time of an alleged offense and is charged with an

20

offense which would be a felony if committed by an adult and a

juvenile who is less than fourteen years of age. In only the

former circumstance, the statutory scheme permits the juvenile

court to transfer the juvenile to the appropriate circuit court

having criminal jurisdiction of such offenses if committed by

an adult. Code § 16.1-269.1(A). Additionally, a juvenile

fourteen years of age or older charged with an offense which if

committed by an adult could be punished by confinement in a

state correctional facility, may waive the jurisdiction of the

juvenile court and have his case transferred to the appropriate

circuit court. Code § 16.1-270.

As pertinent to this appeal, the juvenile law defines a

“[v]iolent juvenile felony” as “any of the delinquent acts

enumerated in subsection B or C of § 16.1-269.1 when committed

by a juvenile 14 years of age or older.” Code § 16.1-228.

Robbery in violation of Code § 18.2-58 is a violent juvenile

felony under Code § 16.1-269.1(C). A violation of Code § 18.2-

53.1, which penalizes as a separate felony the use or display

of a firearm in committing a felony, is not an enumerated

violent juvenile felony under either Code § 16.1-269.1(B) or

(C).

In addition to the age of the juvenile, the statutory

scheme within the juvenile law draws a distinction between the

type of felony offense charged against the juvenile. In a case

21

involving a juvenile fourteen years of age or older at the time

of the alleged offense who is charged with an offense which

would be a felony if committed by an adult, the case may be

transferred by the juvenile court to the appropriate circuit

court following a transfer hearing conducted on motion of the

attorney for the Commonwealth pursuant to Code § 16.1-269.1(A).

In contrast, in a case involving a juvenile fourteen years of

age or older at the time of the alleged offense who is charged

with a violent juvenile felony, the juvenile court, upon proper

notice by the attorney for the Commonwealth, is required to

conduct a preliminary hearing, and, upon a finding of probable

cause, to certify the charge, and all ancillary charges, to the

grand jury for indictment. Code § 16.1-269.1(C) and (D). In

either circumstance, upon indictment, subsequent trial, and

conviction of the juvenile, the statutory scheme provides for

the dispositional alternatives available to the circuit court.

These dispositional alternatives are contained within the

comprehensive provisions of Code § 16.1-272. This statute

provides that:

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.

22

1. If a juvenile is convicted of a violent

juvenile felony, for that offense and for all

ancillary crimes the court may order that (i) the

juvenile serve a portion of the sentence as a

serious juvenile offender under § 16.1-285.1 and

the remainder of such sentence in the same manner

as provided for adults; (ii) the juvenile serve

the entire sentence in the same manner as

provided for adults; or (iii) the portion of the

sentence to be served in the same manner as

provided for adults 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 including,

but not limited to, commitment under subdivision

14 of § 16.1-278.8 or § 16.1-285.1.

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 or may in its discretion impose an

adult sentence and suspend the sentence

conditioned upon successful completion of such

terms and conditions as may be imposed in a

juvenile court upon disposition of a delinquency

case.

(Emphasis added.)

Code § 16.1-278.8(14) permits the court to commit a

juvenile eleven years of age or older to the Department of

Juvenile Justice for certain felony offenses and Class 1

misdemeanors. Code § 16.1-285.1(A), relating to the commitment

of a juvenile fourteen years of age or older who has been found

guilty of certain felony offenses or has been transferred from

a juvenile district court pursuant to Code § 16.1-269.1,

23

permits the circuit court to commit the juvenile to the

Department of Juvenile Justice if upon consideration of various

statutorily enumerated criteria “in the opinion of the court

the needs of the juvenile and the interests of the community

would clearly best be served by [such] commitment.” Code

§ 16.1-285.1(C) provides that:

In ordering commitment pursuant to this section, the

court shall specify a period of commitment not to

exceed seven years or the juvenile’s twenty-first

birthday, whichever shall occur first. The court may

also order a period of determinate or indeterminate

parole supervision to follow the commitment but the

total period of commitment and parole supervision

shall not exceed seven years or the juvenile’s

twenty-first birthday, whichever occurs first.

As pertinent to the present appeal, one of the criteria

the court must consider in applying this code section is

“whether the offense involved the use of a firearm or other

dangerous weapon by brandishing, displaying, threatening with

or otherwise employing such weapon.” Code § 16.1-

285.1(B)(2)(iii).

As recounted by the majority, Demetrious was sixteen years

of age when he committed eleven counts of armed robbery in

violation of Code § 18.2-58 and five counts of use of a firearm

in the commission of a felony in violation of Code § 18.2-53.1.

In accord with the statutory scheme outlined above, Demetrious

waived a preliminary hearing on the charges, was certified to

be tried in the circuit court pursuant to Code § 16.1-269.1,

24

pled guilty to the charges, and was ultimately tried and

convicted. In its final sentencing order, in pertinent part,

the circuit court stated:

On the convictions for Use of a Firearm in Commission

of a Felony and Use of a Firearm in Commission of a

Felony, Second or Subsequent Offense, the Court finds

[that] these offenses are not statutorily defined by

[Code] § 16.1-228 as violent juvenile felonies. The

Court imposes a juvenile disposition on these

convictions, in accordance with [Code] § 16.1-

272(A)(2), and hereby commits [Demetrious] to the

Department of Juvenile Justice until his 20th

birthday, in accordance with [Code] § 16.1-285.1.

With regard to the robbery offenses, the circuit court

sentenced Demetrious to a term of 25 years in the penitentiary

on each offense to run concurrently, suspended those sentences

conditioned on good behavior for 10 years, and placed

Demetrious on active adult probation for 5 years commencing

upon his release from incarceration with the Department of

Juvenile Justice.

Code § 16.1-272(A)(2), unlike subsection (A)(1), applies

to “any other felony,” rather than a “violent juvenile felony”

and all “ancillary crimes,” which are defined in Code § 16.1-

228 as “any delinquent act committed by a juvenile as a part of

the same act or transaction . . . which would be a felony if

committed by an adult.” In this case, the use of a firearm

offenses are clearly “ancillary crimes” to the violent juvenile

felony of robbery. Thus, the circuit court should have

25

sentenced Demetrious pursuant to Code § 16.1-272(A)(1) instead

of Code § 16.1-272(A)(2). Regardless, the Commonwealth never

objected to Demetrious being sentenced pursuant to Code § 16.1-

272(A)(2), and thus, failed to preserve any objection to the

circuit court’s use of subsection (A)(2).

Nonetheless, the circuit court’s sentence in Demetrious’

case is entirely consistent with the provisions of Code § 16.1-

272(A)(1)(iii) which expressly provides that the court may

order “the portion of the sentence to be served in the same

manner as provided for adults to be suspended conditioned upon

successful completion of such terms and conditions as may be

imposed in a juvenile court . . . including . . . commitment

. . . under [Code] § 16.1-285.1.” Additionally, the circuit

court’s sentence is consistent with the provisions of Code

§ 16.1-272(A)(2) which also expressly provides that the court

may order “commitment under [Code] § 16.1-285.1 or may in its

discretion impose an adult sentence and suspend the sentence

conditioned upon successful completion of such terms and

conditions as may be imposed in a juvenile court upon

disposition of a delinquency case.” One such dispositional

alternative available to a juvenile court is a commitment of a

juvenile to the Department of Juvenile Justice pursuant to Code

§ 16.1-278.8(A)(14).

26

It is then readily apparent that whether the circuit court

had imposed its sentence upon Demetrious under Code § 16.1-

272(A)(1) or (A)(2), both subsections permitted the court to

commit Demetrious to the Department of Juvenile Justice under

Code § 16.1-285.1 and to suspend the adult sentence imposed on

him conditioned on his successful completion of that

Department’s program. Nevertheless, the Court of Appeals and

the majority conclude that the circuit court was not permitted

to impose a juvenile disposition upon Demetrious under Code

§ 16.1-272 because Code § 18.2-53.1 prescribes a specific

penalty for individuals found guilty of use of a firearm in the

commission of a felony and, therefore, is a more specific

statute than Code § 16.1-272 and requires the individual to

serve a mandatory period of incarceration.

As a general proposition, it is difficult for me to

conclude from the language of Code § 18.2-53.1 relating to “any

person” that the General Assembly intended to potentially

impose a mandatory minimum term of imprisonment of three years

upon a juvenile fourteen years of age at the time the offense

was committed and that “[s]uch punishment shall be separate and

apart from, and shall be made to run consecutively with, any

punishment received for the commission of the primary felony.”

Such an interpretation of this statute would seem to be

contrary to the ameliorative purpose of the juvenile justice

27

system and the statutory scheme that implements it. In my

view, the “conflict” which the majority finds between Code

§ 16.1-272 and Code § 18.2-53.1 is illusory.

Code § 16.1-272 specifically and comprehensively addresses

the sentences that are authorized to be imposed by a circuit

court upon juveniles fourteen years of age or older. In

contrast, Code § 18.2-53.1 has no such age limitation for a

person who violates its provisions. Moreover, Code § 16.1-

272(A) expressly provides that “[i]n any case in which a

juvenile is indicted, the offense . . . 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.” (Emphasis added.) Thus, if indeed there is a

conflict between Code § 16.1-272 and Code § 18.2-53.1, these

statutes are readily harmonized to resolve that conflict.

Clearly Code § 18.2-53.1 reflects a legislative intent

that the offense it prescribes be punished. The provisions of

Code § 16.1-272 permit a juvenile to be so punished, just as

occurred in Demetrious’ case. However, because Code § 16.1-272

specifically addresses juvenile offenders and permits the

suspension of sentences in “any [such] case,” this statute

28

permits the circuit court in its discretion to suspend a

sentence imposed under Code § 18.2-53.1. ∗

For these reasons, I would reverse the judgment of the

Court of Appeals in Demetrious’ case and Dwayne’s case and

enter final judgment affirming the decision of the circuit

court in both cases.

JUSTICE MILLETTE, with whom SENIOR JUSTICE CARRICO joins,

concurring in part and dissenting in part.

I concur with the majority’s view that with respect to the

appeal in the matter of Dwayne Jamar Brown v. Commonwealth, the

Commonwealth did not comply with Rule 5A:18, and thus failed to

preserve for appeal its argument that the circuit court did not

have the discretion to sentence Dwayne as a juvenile on the use

of a firearm in the commission of a felony charges.

I respectfully dissent, however, in the matter of

Demetrious Omar Brown v. Commonwealth. I disagree with the

majority on two issues. First, I believe that the Commonwealth

failed to preserve for appeal its argument that the use of a

firearm in the commission of a felony charges are ancillary

charges to the robberies and thus require sentencing pursuant

to Code § 16.1-272(A)(1).

∗

In light of the decision by the Supreme Court of the

United States in Roper v. Simmons, 543 U.S. 551, 568 (2005),

29

At Demetrious’ sentencing, the Commonwealth argued that

under Code § 18.2-53.1 the five use of a firearm charges

required a mandatory minimum sentence of 23 years (three years

for the first conviction and five years for the second and each

subsequent conviction). The Commonwealth relied upon Bullock

v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334 (2006), to

support its argument that the “broad discretion in the juvenile

sentencing statute could [not] override the mandatory

provisions of [Code § 18.2-53.1].”

Bullock was a juvenile who was certified and convicted as

an adult for two robberies and two charges of use of a firearm

in the commission of a felony. Id. at 362, 631 S.E.2d at 336.

Pursuant to Code § 16.1-272(A)(1), the circuit court suspended

imposition of the sentence on the robbery convictions and

sentenced Bullock to consecutive terms of three and five years

incarceration for the firearms convictions. Id. at 364, 631

S.E.2d at 336. The Court of Appeals held that the mandatory

minimum sentencing provisions of Code § 18.2-53.1 precluded the

circuit court from suspending any portion of the mandatory

sentence pursuant to Code § 16.1-272(A)(1)(iii). Id. at 377,

631 S.E.2d at 343. In its analysis, the Court of Appeals

discussed the conflict between the language of Code § 18.2-

the majority’s reliance upon Thomas v. Commonwealth, 244 Va. 1,

419 S.E.2d 606 (1992), is not persuasive.

30

53.1, requiring a mandatory minimum sentence that cannot be

suspended, and the language of Code § 16.1-272(A)(1)(iii),

permitting “the portion of the sentence to be served in the

same manner as provided for adults be suspended upon successful

completion of such terms and conditions as may be imposed in a

juvenile court . . . .” According to the Court of Appeals,

there is a conflict when one statute prohibits suspension of a

sentence and a second statute authorizes it, so that under Code

§ 16.1-272(A)(1), a juvenile sentenced as an adult is not

eligible to have his mandatory minimum sentence suspended.

Bullock, 48 Va. App. at 377, 631 S.E.2d at 343.

When the Commonwealth concluded its argument in

Demetrious’ case, the circuit court judge recessed the

sentencing proceeding in order to review the statutes and the

Bullock opinion. Upon consideration of the Commonwealth’s

argument, the judge acknowledged that he agreed with the

Commonwealth that if Demetrious were sentenced pursuant to Code

§ 16.1-272(A)(1), any suspension of the sentence imposed for

the use of firearm conviction was precluded by the mandatory

sentencing requirements of Code § 18.2-53.1. However, the

judge concluded that if Demetrious were sentenced pursuant to

Code § 16.1-272(A)(2), a juvenile sentence could be imposed,

and suspended, without conflicting with the mandatory minimum

requirements of Code § 18.2-53.1. In concluding that

31

Demetrious’ sentence for use of a firearm could be imposed

pursuant to Code § 16.1-272(A)(2), the judge wrongly relied on

the fact that use of a firearm is not defined as a violent

felony requiring sentencing pursuant to Code § 16.1-272(A)(1).

The judge failed to consider that the use of a firearm charges

were ancillary offenses to the robberies and that sentencing

for violent offenses, as well as ancillary offenses, was

required to be pursuant to Code § 16.1-272(A)(1) (dealing with

a conviction for “a violent felony . . . and for all ancillary

crimes”) and not pursuant to Code § 16.1-272(A)(2).

When the circuit court rejected the Commonwealth’s

argument and imposed a juvenile disposition pursuant to Code

§ 16.1-272(A)(2) on the use of a firearm charges, the

Commonwealth did not make any objection to the circuit court’s

imposition of a juvenile disposition pursuant to Code § 16.1-

272(A)(2). Despite ample opportunity to do so, the

Commonwealth never argued that sentencing for the ancillary

charges of use of a firearm was required pursuant to Code

§ 16.1-272(A)(1). The judge was never put on notice that the

Commonwealth disagreed with the judge’s analysis that

Demetrious could be sentenced for the nonviolent, yet

ancillary, use of a firearm charges pursuant to Code § 16.1-

272(A)(2), instead of Code § 16.1-272(A)(1). In light of that

failure by the Commonwealth, I disagree with the majority that

32

the Commonwealth properly preserved the sentencing issue for

appeal.

Second, I disagree with the majority’s conclusion that the

resulting preclusion of juvenile disposition for the use of a

firearm charges would have been the same if the circuit court

was authorized to sentence Demetrious pursuant to Code § 16.1-

272(A)(2).

Code § 16.1-272(A)(2) first authorizes the circuit court

to “sentence or commit the juvenile offender in accordance with

the criminal laws of the Commonwealth.” But Code § 16.1-

272(A)(2) also gives the circuit court the alternative option

to “in its discretion deal with the juvenile in the manner

prescribed . . . for the hearing and disposition of cases in

the juvenile court.” This language is not in conflict with the

mandatory sentencing language of Code § 18.2-53.1 because

unlike subsection (A)(1)(iii) it does not, on the one hand,

require a mandatory adult sentence, and then, on the other

hand, allow its suspension. Subsection (A)(2) provides as an

option a specific provision dealing with exclusively juvenile

sentencing for non-violent felonies. This sentencing

alternative addresses the dispositional goals of juvenile

sentencing without ever requiring an adult sentence.

We have long recognized that

33

[t]he trial and punishment of minor offenders

follows the regular criminal procedure, modified,

in certain respects, by the statutes setting up

juvenile and domestic relations courts. These

statutes have established a system whereby most

juvenile offenders are first subjected to the

jurisdiction of the juvenile courts for

proceedings therein designed to subject such

offenders to the supervision and control of the

State in a manner in which the delinquent ways of

the child will be corrected and he be made to lead

a correct life.

Mickens v. Commonwealth, 178 Va. 273, 279, 16 S.E.2d 641, 643

(1941). But different criminal procedures are applied to

“children who have committed grave offenses.” Id. at 279, 16

S.E.2d at 643-44.

In certain situations, Code § 16.1-272(A)(2) authorizes

the circuit court to accomplish the rehabilitative purposes of

juvenile disposition for juveniles tried as adults and found

guilty of a felony, and gives the court the discretion to

fashion a juvenile disposition, thereby avoiding the mandatory

minimum sentences prescribed by Code § 18.2-53.1. By contrast,

none of the three sentencing options in Code § 16.1-272(A)(1),

involving sentencing of a violent juvenile felony, gives the

circuit court the discretion to impose such a juvenile

disposition because all three require an adult sentence.

Pursuant to subsection (A)(1), the court may order that (i) the

juvenile be committed for a portion of his or her sentence

under § 16.1-285.1 and serve the remainder of his or her

34

sentence as an adult; (ii) the juvenile serve the entire

sentence as an adult; or (iii) the portion of the sentence to

be served as an adult 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.

Because the court under circumstances not presented in

this case, involving sentencing of a juvenile convicted of any

felony other than a violent felony or an ancillary offense,

would have the option to fashion a juvenile disposition instead

of imposing an adult sentence with a mandatory minimum period

of incarceration, I cannot join the majority’s conclusion that

the result would have been the same if the circuit court could

have sentenced Demetrious pursuant to Code § 16.1-272(A)(2).

For these reasons, I would reverse the judgment of the

Court of Appeals in both Dwayne’s and Demetrious’ appeals

because the Commonwealth failed to preserve its arguments with

regards to sentencing, and would enter final judgment affirming

the judgment of the circuit court in both cases.

35