Gregory Antoine Brown v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
GREGORY ANTOINE BROWN
MEMORANDUM OPINION * BY
v. Record No. 2858-97-2 JUDGE DONALD W. LEMONS
MARCH 30, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James M. Lumpkin, Judge Designate
H. Pratt Cook, III (Robert Cabell and
Associates, on briefs), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Gregory Antoine Brown, a juvenile, was charged with six
counts of distributing cocaine in violation of Code § 18.2-248.
After a hearing, a judge of the juvenile and domestic relations
court transferred Brown to the circuit court to be tried. See
Code § 16.1-269.1(A). When Brown appealed the transfer ruling, a
judge of the circuit court affirmed the ruling. Following a trial
and conviction in the circuit court, Brown contends on this appeal
that the circuit judge abused his discretion in affirming the
transfer decision. We disagree and affirm the decision of the
trial court.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
I.
Brown was charged with six counts of distributing cocaine to
his half-brother, a police informant. The distributions occurred
in November and December 1996, four months prior to Brown's
eighteenth birthday. In the juvenile court, a probation officer
filed a transfer report, which indicated that Brown had been found
guilty of several crimes over the preceding years: assault and
battery (1996), unauthorized use of a vehicle (1995), and
possession of a beeper on school property (1993). The report also
noted that in 1992, a mother's complaint that Brown had assaulted
her son was resolved at intake. In 1996, Brown failed to complete
a community service requirement mandated by the juvenile court.
At the time of the transfer hearing, a charge was pending against
Brown in juvenile court for brandishing a firearm. The juvenile
court judge found probable cause on the cocaine charges, made all
requisite findings, and transferred Brown to the circuit court.
On appeal to the circuit court, the trial judge reviewed the
file from the juvenile court and heard testimony from the
probation officer. The probation officer testified that, after
the transfer hearing, the juvenile court had sentenced Brown, who
was then eighteen years of age, to thirty days in jail for failure
to complete his community service requirement. In making his
ruling, the circuit judge found the following:
- 2 -
I need to look at the factors set out in
[Code § 16.1-269.1]. And when you do that,
you see the Defendant [was] . . . almost 18
at the time of these offenses. The offenses
are very serious offenses and it isn't just
one offense, it's six different offenses
allegedly on five or six different days or
time periods. The Defendant has had prior
contact with the Juvenile Court and has been
exposed to the Juvenile Court system.
Obviously not all the alternatives that are
available, but he has had that exposure.
Pursuant to Code § 16.1-269.6(B), the trial judge then
determined that there had been substantial compliance with Code
§ 16.1-269.1(A) and advised the attorney for the Commonwealth
that the Commonwealth was authorized to seek an indictment and
proceed in the circuit court.
II.
Although "the juvenile and domestic relations district
courts have exclusive, original jurisdiction [pursuant to Code
§ 16.1-241(A)] over criminal offenses alleged to have been
committed by a juvenile," Burfoot v. Commonwealth, 23 Va. App.
38, 45, 473 S.E.2d 724, 728 (1996), a judge of the juvenile
court may transfer the juvenile to the appropriate circuit court
"if [the] juvenile [is] fourteen years of age or older at the
time of [the] . . . alleged offense [and] is charged with an
offense which would be a felony if committed by an adult." Code
§ 16.1-269.1(A). The transfer is subject to the factors listed
in Code § 16.1-269.1(A)(1-4).
- 3 -
When a judge of the juvenile court transfers the juvenile
to the circuit court, the juvenile may appeal that decision to
the circuit court. See Code § 16.1-269.4. Upon de novo review,
it is permissible for the circuit court to review the
transcripts and written records from the juvenile court, see
Grogg v. Commonwealth, 6 Va. App. 598, 607, 371 S.E.2d 549, 553
(1988). The circuit court must "determine if there has been
substantial compliance with [Code § 16.1-269.1(A)], but without
redetermining whether the juvenile court had sufficient evidence
to find probable cause." Code § 16.1-269.6(B). Because a
circuit judge has discretion in making his or her ruling, we
will not reverse this ruling "absent a showing that [the circuit
judge's] exercise of discretion has been abused." Kluis v.
Commonwealth, 14 Va. App. 720, 723, 418 S.E.2d 908, 910 (1992).
Among the documents the circuit judge considered was a
report from the probation officer. In the report, the probation
officer noted the following:
Although both the adult and juvenile justice
systems offer appropriate services and
dispositional alternatives to address
[Brown's] problems, it should be . . . noted
that a number of the juvenile system's
dispositional alternatives, including
community service and probation, have
already been attempted without success.
Given the serious nature of the alleged
offenses and the fact that [Brown] will be
eighteen years of age in the immediate
future, it is felt that he can not be
retained long enough in the juvenile justice
- 4 -
system for effective treatment and
rehabilitation.
* * * * * * *
If probable cause is found in these matters,
it is respectfully recommended that
consideration be given to transferring these
cases to the Henrico County Circuit Court
for trial.
Brown argues that a fair reading of the probation officer's
report does not adequately support transfer. Brown reads the
report as recommending transfer primarily because Brown was
almost eighteen years old when the alleged crimes occurred.
Noting that a juvenile may be held until the age of twenty-one
and that the probation officer's report stated juvenile
treatment alternatives were available, Brown argues that the
circuit judge did not give appropriate consideration to the
availability of treatment within the juvenile system. We
disagree.
The record establishes that several months prior to his
eighteenth birthday, Brown was charged with six counts of
distributing cocaine to his half-brother, a police informant.
Also, over the preceding years, Brown had been found guilty of
several crimes, including assault and battery, unauthorized use
of a vehicle, and possession of a beeper on school property. In
1992, a mother filed a complaint alleging that Brown had
assaulted her son. At the time of the hearing, Brown was
- 5 -
charged with an unrelated offense of brandishing a firearm. He
had also been jailed because he failed to complete a community
service requirement mandated by a court order. Brown maintains
that as long as appropriate services are available in the
juvenile system, it is error for the court to try him as an
adult. The law of Virginia is not so restrictive. In
determining whether Brown was "not a proper person to remain
within the jurisdiction of the juvenile court," the availability
of appropriate services in the juvenile system is one of several
factors that a trial judge must consider. This record does not
indicate that the trial judge was plainly wrong or without
evidence to support his ruling.
For this reason, and because the evidence proved
substantial compliance with Code § 16.1-269.1(A), we hold that
the circuit judge did not abuse his discretion in denying
Brown's appeal and in authorizing Brown to be tried as an adult.
Affirmed.
- 6 -
Benton, J., dissenting.
Although "we should reverse [the trial judge's decision]
only upon 'clear evidence that [the decision] was not judicially
sound' and not simply to substitute our 'discretion for that
rendered below,'" Jefferson v. Commonwealth, 27 Va. App. 477,
488, 500 S.E.2d 219, 225 (1998), I believe the record
demonstrates that the judge's decision is plainly wrong. The
record failed to prove that Gregory A. Brown "is not a proper
person to remain within the jurisdiction of the juvenile court."
Code § 16.1-269.1(A)(4).
The evidence proved that Brown was seventeen when he
committed the offenses. Each offense concerned a sale of
cocaine to his half-brother, who the police sent to buy the
cocaine on each separate occasion. The record suggests that
Brown was being improperly influenced by his parent because the
report indicates that Brown's father was involved with Brown in
committing the offenses. Thus, the nature of Brown's
participation in the offenses is somewhat mitigated by the
corrupt influence of his family. See Code
§ 16.1-269.1(A)(4)(b)(v).
As the transfer report specifically noted, "[t]he offenses
were not committed in an aggressive or violent manner . . . [,
and it] is not alleged that the offenses involved the
brandishing or displaying of a firearm or other dangerous weapon
- 7 -
in a threatening manner." Although Brown had previous
infractions, all of those matters were handled in the juvenile
court. See Code § 16.1-269.1(A)(4)(e)(i). Prior to the
distribution of cocaine to his half-brother, Brown had not been
incarcerated in a juvenile or other correctional facility. See
Code § 16.1-269.1(A)(4)(e)(iii). The record indicates that
Brown had not previously been placed in a residential or
community-based treatment program. See Code
§ 16.1-269.1(A)(4)(e)(iv). The record does not indicate that
Brown's previous offenses involved the infliction of serious
bodily injury. See Code § 16.1-269.1(A)(4)(e)(v). Brown had
not been charged with selling cocaine prior to these sales to
his half-brother. See Code § 16.1-269.1(A)(4)(e)(vi). The
record does not indicate Brown has ever absconded from the legal
custody of a correctional entity. See Code
§ 16.1-269.1(A)(4)(f). Brown is not mentally retarded or
mentally ill. See Code § 16.1-269.1(A)(4)(g). The transfer
report indicates that Brown "has a history of good attendance
and behavior at school . . . [and] maintain[ed] passing grades
in most of his subjects." See Code § 16.1-269.1(A)(4)(h).
These factors tend to favor retaining Brown in the juvenile
system.
Although Brown was under a court order to complete forty
hours of community service, he had only completed ten of those
- 8 -
hours and was scheduled to return to juvenile court on April 4,
1997, for a review. However, he was arrested on the cocaine
distribution charges in February 1997 and held without bail.
While he was in custody, and after the transfer hearing, the
juvenile court held a hearing on April 4, 1997, and assessed a
thirty-day jail sentence for failing to complete the community
service. This is the only commitment on Brown's record.
The trial judge appears to have based his ruling in part on
Brown's "prior contact with the Juvenile Court and . . .
expos[ure] to the Juvenile Court System." That is an
insufficient basis to determine that a juvenile is not a proper
person to remain within the jurisdiction of the juvenile court.
Clearly, the fact that Brown had not been successful in the
community service and probation efforts is not a sufficient
basis to transfer him from the juvenile system. The juvenile
court has other more severe alternatives available to it.
Indeed, the trial judge also had before him the transfer report
which specifically noted that "both the adult and juvenile
justice systems offer appropriate services and dispositional
alternatives to address [Brown's] problems." The trial judge
expressly noted that Brown had not been subject to "all the
alternatives that are available" in the juvenile system. Thus,
I believe the trial judge abused his discretion in concluding
that Brown's prior "exposure" to the juvenile system coupled
- 9 -
with the nature of the current charges rendered him "not a
proper person to remain with the Juvenile Court System."
I would reverse the convictions and remand the case to the
circuit court with direction to remand this matter to the
juvenile court for proceedings on these charges.
- 10 -