COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia
ANTOINE LEONARD INGRAM MEMORANDUM OPINION * BY v. Record No. 1791-01-1 JUDGE LARRY G. ELDER OCTOBER 8, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton, III, Judge
J. Barry McCracken for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Antoine Ingram (appellant) appeals from his jury trial
convictions for two counts of robbery, two counts of using a
firearm in the commission of robbery, and one count of
conspiracy to commit robbery. On appeal, he contends he was
entitled to be sentenced by the same jury that convicted him
because, although he was a juvenile when the charged offenses
occurred, he had been tried and convicted as an adult on an
unrelated offense before his trial for the instant offenses and,
thus, pursuant to Code § 16.1-271, was entitled to be treated as
an adult in all stages of the instant proceedings.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The Commonwealth contends appellant waived any right to be
sentenced by a jury because he failed to object to discharge of
the jury following its verdict in the guilt phase of his trial.
Alternatively, it argues appellant had no right to be sentenced
by a jury in the instant proceedings because he had not yet been
sentenced on the unrelated offense and, thus, he had not been
"tried and convicted . . . as an adult" within the meaning of
Code § 16.1-271.
Assuming without deciding appellant properly preserved this
issue for appeal, we hold no error occurred. Thus, we affirm.
I.
BACKGROUND
Appellant was born on July 24, 1982. On April 22, 2000,
while appellant was seventeen years old, appellant and a
companion committed the instant offenses, which included robbing
Clarence Whitley and Raymond Joyner and using a firearm in the
commission of those robberies. Juvenile petitions were issued
charging appellant with two counts of robbery and two counts of
using a firearm in the commission of a felony for these events,
hereinafter the Whitley/Joyner robberies. On July 14, 2000, the
juvenile and domestic relations district court (the juvenile
court) certified the charges to the circuit court, and on August
2, 2000, the grand jury issued indictments for the charged
offenses. The grand jury also issued a direct indictment
- 2 - charging that appellant conspired with another to commit the
April 22, 2000 robberies.
During this same period of time, appellant underwent
prosecution for another robbery, an unrelated offense alleged to
have occurred on May 2, 2000, hereinafter the Tindall robbery. 1
The juvenile court certified appellant for trial as an adult,
and the grand jury issued an indictment. Appellant entered a
plea of not guilty, and at trial on February 28 or March 1,
2001, the jury found appellant guilty of the Tindall robbery.
On March 28, 2001, appellant was tried by a jury for the
Whitley/Joyner robberies and was found guilty of all five
offenses. At the conclusion of the penalty phase, the trial
court discharged the jury without objection from appellant and
continued the matter until May 18, 2001, for sentencing.
On May 18, 2001, appellant was sentenced for the Tindall
robbery. The sentencing in the Whitley/Joyner robberies,
originally set for May 18, 2001, was continued to May 24, 2001.
On that date, appellant argued for the first time that he was
entitled to be sentenced by a jury for the Whitley/Joyner
robberies for which he was convicted on March 28, 2001, because,
at the time of the Whitley/Joyner trial, he had already been
found guilty by a jury of the Tindall robbery. Appellant
1 No documents relating to the Tindall robbery prosecution appear in the record. The record contains only the parties' assertions and the trial court's statements regarding the sequence of events.
- 3 - conceded he had not raised this argument previously but
contended the argument was jurisdictional.
The trial court noted that the sentencing order had not yet
been entered for the Tindall robbery, and with the parties'
agreement, the court continued the matter to June 21, 2001, to
give the parties an opportunity to file memoranda on appellant's
motion for jury sentencing.
On May 25, 2001, the sentencing order for the Tindall
robbery conviction was entered.
On June 21, 2001, the trial court denied appellant's motion
for jury sentencing for the Whitley/Joyner robberies.
II.
ANALYSIS
In the case of conviction of an adult by a jury for a
criminal offense, "the term of confinement . . . and the amount
of fine, if any, . . . [also] shall be ascertained by the jury
. . . ." Code § 19.2-195.
In any case in which [a charge against a juvenile is certified and the] 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 [that the juvenile is] guilty of any charge other than capital murder, the court shall fix the sentence without the intervention of a jury.
Code § 16.1-272. Thus, whereas an adult convicted of a criminal
offense in a jury trial is entitled to be sentenced by a jury,
- 4 - as well, a juvenile certified for trial as an adult on any
charge except capital murder ordinarily is not entitled to be
sentenced by a jury.
Appellant argues that Code § 16.1-271 provides an exception
to that principle under the facts of this case. Pursuant to
Code § 16.1-271,
[t]he trial or treatment 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 . . . trial and sentencing as an adult. . . .
Appellant argues that the jury's returning a verdict of
guilty in the Tindall robbery trial on February 28, 2001,
entitled him to be sentenced as an adult, by a jury, following
his conviction for the Whitley/Joyner robberies on March 28,
2001. The Commonwealth contends appellant waived any right to
be sentenced by a jury for the Whitley/Joyner robberies because
he failed to object to discharge of the jury following its
verdicts in the guilt phase of his trial. We assume without
- 5 - deciding that appellant preserved this issue for appeal and
hold, on the merits, that Code § 16.1-271 did not entitle
appellant to be sentenced as an adult, by a jury, for the
Whitley/Joyner robberies.
Paragraph 1 of Code § 16.1-271 affects only the
jurisdiction of the juvenile court. It precludes only the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia
ANTOINE LEONARD INGRAM MEMORANDUM OPINION * BY v. Record No. 1791-01-1 JUDGE LARRY G. ELDER OCTOBER 8, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK Junius P. Fulton, III, Judge
J. Barry McCracken for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Antoine Ingram (appellant) appeals from his jury trial
convictions for two counts of robbery, two counts of using a
firearm in the commission of robbery, and one count of
conspiracy to commit robbery. On appeal, he contends he was
entitled to be sentenced by the same jury that convicted him
because, although he was a juvenile when the charged offenses
occurred, he had been tried and convicted as an adult on an
unrelated offense before his trial for the instant offenses and,
thus, pursuant to Code § 16.1-271, was entitled to be treated as
an adult in all stages of the instant proceedings.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. The Commonwealth contends appellant waived any right to be
sentenced by a jury because he failed to object to discharge of
the jury following its verdict in the guilt phase of his trial.
Alternatively, it argues appellant had no right to be sentenced
by a jury in the instant proceedings because he had not yet been
sentenced on the unrelated offense and, thus, he had not been
"tried and convicted . . . as an adult" within the meaning of
Code § 16.1-271.
Assuming without deciding appellant properly preserved this
issue for appeal, we hold no error occurred. Thus, we affirm.
I.
BACKGROUND
Appellant was born on July 24, 1982. On April 22, 2000,
while appellant was seventeen years old, appellant and a
companion committed the instant offenses, which included robbing
Clarence Whitley and Raymond Joyner and using a firearm in the
commission of those robberies. Juvenile petitions were issued
charging appellant with two counts of robbery and two counts of
using a firearm in the commission of a felony for these events,
hereinafter the Whitley/Joyner robberies. On July 14, 2000, the
juvenile and domestic relations district court (the juvenile
court) certified the charges to the circuit court, and on August
2, 2000, the grand jury issued indictments for the charged
offenses. The grand jury also issued a direct indictment
- 2 - charging that appellant conspired with another to commit the
April 22, 2000 robberies.
During this same period of time, appellant underwent
prosecution for another robbery, an unrelated offense alleged to
have occurred on May 2, 2000, hereinafter the Tindall robbery. 1
The juvenile court certified appellant for trial as an adult,
and the grand jury issued an indictment. Appellant entered a
plea of not guilty, and at trial on February 28 or March 1,
2001, the jury found appellant guilty of the Tindall robbery.
On March 28, 2001, appellant was tried by a jury for the
Whitley/Joyner robberies and was found guilty of all five
offenses. At the conclusion of the penalty phase, the trial
court discharged the jury without objection from appellant and
continued the matter until May 18, 2001, for sentencing.
On May 18, 2001, appellant was sentenced for the Tindall
robbery. The sentencing in the Whitley/Joyner robberies,
originally set for May 18, 2001, was continued to May 24, 2001.
On that date, appellant argued for the first time that he was
entitled to be sentenced by a jury for the Whitley/Joyner
robberies for which he was convicted on March 28, 2001, because,
at the time of the Whitley/Joyner trial, he had already been
found guilty by a jury of the Tindall robbery. Appellant
1 No documents relating to the Tindall robbery prosecution appear in the record. The record contains only the parties' assertions and the trial court's statements regarding the sequence of events.
- 3 - conceded he had not raised this argument previously but
contended the argument was jurisdictional.
The trial court noted that the sentencing order had not yet
been entered for the Tindall robbery, and with the parties'
agreement, the court continued the matter to June 21, 2001, to
give the parties an opportunity to file memoranda on appellant's
motion for jury sentencing.
On May 25, 2001, the sentencing order for the Tindall
robbery conviction was entered.
On June 21, 2001, the trial court denied appellant's motion
for jury sentencing for the Whitley/Joyner robberies.
II.
ANALYSIS
In the case of conviction of an adult by a jury for a
criminal offense, "the term of confinement . . . and the amount
of fine, if any, . . . [also] shall be ascertained by the jury
. . . ." Code § 19.2-195.
In any case in which [a charge against a juvenile is certified and the] 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 [that the juvenile is] guilty of any charge other than capital murder, the court shall fix the sentence without the intervention of a jury.
Code § 16.1-272. Thus, whereas an adult convicted of a criminal
offense in a jury trial is entitled to be sentenced by a jury,
- 4 - as well, a juvenile certified for trial as an adult on any
charge except capital murder ordinarily is not entitled to be
sentenced by a jury.
Appellant argues that Code § 16.1-271 provides an exception
to that principle under the facts of this case. Pursuant to
Code § 16.1-271,
[t]he trial or treatment 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 . . . trial and sentencing as an adult. . . .
Appellant argues that the jury's returning a verdict of
guilty in the Tindall robbery trial on February 28, 2001,
entitled him to be sentenced as an adult, by a jury, following
his conviction for the Whitley/Joyner robberies on March 28,
2001. The Commonwealth contends appellant waived any right to
be sentenced by a jury for the Whitley/Joyner robberies because
he failed to object to discharge of the jury following its
verdicts in the guilt phase of his trial. We assume without
- 5 - deciding that appellant preserved this issue for appeal and
hold, on the merits, that Code § 16.1-271 did not entitle
appellant to be sentenced as an adult, by a jury, for the
Whitley/Joyner robberies.
Paragraph 1 of Code § 16.1-271 affects only the
jurisdiction of the juvenile court. It precludes only the
juvenile court from taking jurisdiction over a juvenile
previously tried or treated as an adult and precludes that
court's exercise of jurisdiction only over subsequent offenses
committed by that juvenile.
Here, nothing in the record establishes that the juvenile
court exercised jurisdiction over appellant for the
Whitley/Joyner robberies after appellant was tried or treated as
an adult for the Tindall robbery. The juvenile court's last
actions in relation to the Whitley/Joyner offenses were to
certify the cases on July 14, 2000, and to order the charges and
related documents transferred on July 20, 2000, well in advance
of appellant's February 28, 2001 trial for the Tindall robbery.
Nothing in the record establishes when appellant first might
have been "treat[ed] . . . as an adult" for purposes of the
Tindall robbery, and thus, appellant has failed to prove that
any such treatment occurred while the juvenile court still had
jurisdiction. Further, the Whitley/Joyner robberies occurred on
April 22, 2000, before the Tindall robbery, which occurred on
May 2, 2000. Thus, the Whitley/Joyner robberies were not
- 6 - "subsequent offenses committed by that juvenile" within the
meaning of the first paragraph of Code § 16.1-271. Cf. Johnson
v. Commonwealth, 259 Va. 654, 669, 529 S.E.2d 769, 777 (2000)
(interpreting "future criminal acts" as used in paragraph 2 of
Code § 16.1-271 to mean acts actually occurring later in time
without considering when charges were brought or tried).
Appellant argues that he should have been sentenced as an
adult for the Whitley/Joyner robberies because he had been
"tried and convicted," as those terms are used in paragraph 2,
for the Tindall robbery before he was tried for the
Whitley/Joyner robberies. We need not decide, however, whether
the jury's verdict of guilty in the Tindall robbery trial
constituted a "convict[ion]" within the meaning of paragraph 2
because the Whitley/Joyner robberies do not meet either
criterion of the second portion of paragraph 2.
First, the trial for the Whitley/Joyner robberies was not a
"criminal proceeding resulting from any alleged future criminal
acts" because the Whitley/Joyner robberies occurred before
rather than after the Tindall robbery. Code § 16.1-271;
Johnson, 259 Va. at 669, 529 S.E.2d at 777. Second, the
Whitley/Joyner robberies were not "pending allegations of
delinquency which [had] not been disposed of by the juvenile
court at the time of the [Tindall robbery] conviction."
Assuming without deciding that appellant was "convicted" for the
Tindall robbery on the earliest date alleged, February 28, 2001,
- 7 - the date of the jury's verdict, the juvenile court had already
certified the Whitley/Joyner robbery charges on that date, the
grand jury had already issued indictments, and a trial date
already had been set. Thus, regardless of the definition given
to the word, "convicted," as used in paragraph 2, the statute
did not require the circuit court to sentence appellant as an
adult for the Whitley/Joyner robberies. 2
Had the legislature wished to require that the conviction
of a juvenile in circuit court would alter the nature of all
unrelated proceedings against that same juvenile which had
already been transferred to and remained pending in the circuit
court, it could have done so. Instead, the only pending circuit
court proceedings affected by Code § 16.1-271 are those
"resulting from any alleged future criminal acts." Johnson, 259
Va. at 669, 529 S.E.2d at 777 (interpreting "future criminal
acts" as acts occurring later in time than original offense
without considering when trial and conviction for original
offense occurred).
For these reasons, we affirm the challenged convictions.
Affirmed.
2 Because the factual assumptions we make allow us to decide this case based on express statutory language, see Code § 16.1-271, and existing interpretations of the terms "future" and "subsequent" as used in that statute, see Johnson, 259 Va. at 669, 529 S.E.2d at 277, we conclude this decision does not warrant publication.
- 8 -