Opinion
Record No. 1690-93-1
Decided: March 28, 1995
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON, Nelson T. Overton, Judge
(James S. Ellenson, on brief), for appellant. Appellant submitting on brief.
(James S. Gilmore, III, Attorney General; Eugene Murphy, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
Present: Judges Baker, Benton and Senior Judge Hodges
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Melvin Stephens, Jr. contends that the trial judge improperly allowed a jury to sentence him in violation of Code Sec. 16.1-272. We reverse the sentencing orders and remand for resentencing.
This proceeding began by petitions in the juvenile and domestic relations district court alleging that Stephens, a juvenile, feloniously caused bodily injury to three persons, with the intent to maim and while acting as a member of a mob, in violation of Code Sec. 18.2-41. Upon motion of the Commonwealth, the cases were transferred to the circuit court for trial pursuant to Code Sec. 16.1-269 (now Code Sec. 16.1-269.1).
Upon the conclusion of the evidence at trial, the trial judge gave the jury instructions concerning findings of "guilty" and "not guilty" and, over the objection of Stephens, instructions concerning punishment to be fixed upon a finding of "guilty." The jury found Stephens guilty of three lesser included offenses, misdemeanor assault and battery by mob violations of Code Sec. 18.2-42. The jury also fixed his punishment as twelve months in jail on each of the three convictions. The trial judge entered a conviction order imposing the jury's sentence.
"[T]he choice of sentencing procedures is a matter for legislative determination." Ballard v. Commonwealth, 228 Va. 213, 218, 321 S.E.2d 284, 287 (1984), cert. denied, 470 U.S. 1085 (1985). By statute, the legislature has unambiguously determined the sentencing procedure to be followed in cases such as this.
In the hearing and disposition of felony cases properly before a circuit court having criminal jurisdiction of such offenses if committed by an adult, the court, after giving the juvenile the right to a trial by jury on the issue of guilt or innocence and upon a finding of guilty, 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 law for the hearing and disposition of cases in the juvenile court.
Code Sec. 16.1-272(A).
The statute places solely upon the trial judge the obligation to sentence the juvenile offender in accordance with the criminal laws or in the manner prescribed for juvenile court cases. "[I]n enacting Code Sec. 16.1-272, the General Assembly obviously opted for judge-sentencing for transferred juveniles because it perceived the 'inability of juries to adequately comprehend the differences in the sentencing of a juvenile defendant as an adult, and the treatment of that same child within the framework of the juvenile court laws.' " Ballard, 228 Va. at 218, 321 S.E.2d at 287 (citation omitted).
By permitting the jury to fix the sentences, the trial judge contravened the statutory sentencing scheme. Accordingly, we reverse the sentencing orders and remand these cases to the trial judge for sentencing pursuant to Code Sec. 16.1-272.
Reversed and remanded.