Bullock v. Com., Record No. 0145-05-2.

• Decision Date: 05 July 2006
• Docket Number: Record No. 0145-05-2.
• Citation: 48 Va. App. 359,631 S.E.2d 334
• Parties: Tyrone Alonzo BULLOCK v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

631 S.E.2d 334

48 Va. App. 359

Tyrone Alonzo BULLOCK v. COMMONWEALTH of Virginia.

Record No. 0145-05-2.

Court of Appeals of Virginia, Richmond.

July 5, 2006.

COPYRIGHT MATERIAL OMITTED

Richard G. White, Jr., for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: CLEMENTS, HALEY, JJ., and OVERTON, S.J.

CLEMENTS, Judge.

Tyrone Alonzo Bullock was convicted on his pleas of guilty of two counts of robbery, in violation of Code § 18.2-58, and two counts of use of a firearm in the commission of a felony, in violation of Code § 18.2-53.1. The trial court suspended imposition of sentence on the robbery convictions for twenty years upon certain conditions and sentenced Bullock to consecutive terms of three and five years' incarceration in the Department of Corrections on the firearm convictions. On appeal, Bullock contends the trial court erred (1) in refusing to consider the possibility of allowing him to serve any part of his sentences in a juvenile facility under Code § 16.1-272(A)(1)(i) and (2) in concluding it lacked the discretion under Code § 18.2-53.1 to suspend any portion of the mandatory minimum sentences on the firearm convictions or to set those sentences to run concurrently. For the reasons that follow, we affirm the judgment of the trial court.

I. BACKGROUND

The relevant facts and procedural posture of this case are not in dispute. Using a twelve-gauge shotgun, Bullock robbed Brian Walthall at gunpoint of $40 on February 22, 2004. Approximately thirty minutes later, Bullock robbed William Buckman at gunpoint of $20. Shortly after the second robbery, Bullock was arrested and charged with the two robberies and with using a firearm in the commission of each of the robberies. Bullock was sixteen years old at the time of the offenses.

Bullock was subsequently certified to be tried as an adult in the circuit court, and a grand jury returned indictments charging him with the two robberies and the two related firearm offenses. On September 30, 2004, Bullock pled guilty in the circuit court to all four charges. After hearing a summary of the evidence, the court accepted Bullock's guilty pleas and convicted him of the charges.

At the sentencing hearing, both parties agreed that the trial court had the discretion to sentence Bullock as a serious juvenile offender under Code § 16.1-272 with respect to the robbery convictions. They disagreed, however, as to what discretion the court had with respect to sentencing Bullock for the use of a firearm convictions. Bullock argued that, under Code § 16.1-272(A)(1), the court could and should allow him to serve all or at least part of his sentences on the two firearm convictions as a serious juvenile offender in the Department of Juvenile Justice. The balance of his sentence, if any, he further argued, could then be served as an adult in the Department of Corrections. He further argued that the two mandatory minimum sentences required by Code § 18.2-53.1 could be suspended in whole or in part under Code § 16.1-272(A)(1) or be set to run concurrently with each other. The prosecutor argued that the inflexible "mandatory minimum" provision of Code § 18.2-53.1 precluded application of the discretionary sentencing options in Code § 16.1-272(A)(1) and required that the two mandatory minimum sentences on the firearm convictions be served consecutively with each other in the Department of Corrections, without suspension or reduction.

At the conclusion of the sentencing hearing, the trial court suspended imposition of sentence on the robbery convictions for twenty years on certain conditions. Stating it lacked the discretion to "suspend any part of the time" of the mandatory minimum sentences required by Code § 18.2-53.1 and that they "must run consecutive[ly]," the court sentenced Bullock to serve consecutive terms of three and five years' incarceration on the use of a firearm convictions. Asked by defense counsel if it would "consider committing [Bullock] under [Code § 16.1-272(A)(1)(i)] so that at least some of th[e] time [would be] in the juvenile system," the court responded: "No, the Court is sentencing him as an adult. The appropriate placement will be determined by the Department of Corrections." Asked by the court if "there [was] anything else," both parties responded in the negative, and the proceedings ended.

This appeal followed.

II. ANALYSIS

This appeal involves the application of Code §§ 18.2-53.1 and 16.1-272(A)(1). Code § 18.2-53.1 provides, in pertinent part, as follows:

It shall be unlawful for any person to use or attempt to use any ... shotgun ... or display such weapon in a threatening manner while committing ... robbery .... 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 § 16.1-272(A)(1) provides as follows:

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....

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.

Because Bullock was a juvenile who was tried and convicted as an adult in the circuit court on two counts of robbery—a "violent juvenile felony" under Code § 16.1-269.1 — and two ancillary counts of use of a firearm in the commission of those robberies, both Code § 18.2-53.1 and Code § 16.1-272(A)(1) were facially applicable to Bullock's sentencing. After suspending imposition of sentence on the robbery convictions, the trial court sentenced Bullock "as an adult" to consecutive terms of three and five years' incarceration in the Department of Corrections on the two firearm convictions.

A. The Trial Court's Consideration of Code § 16.1-272(A)(1)(i)

Bullock claims the trial court abused its discretion during sentencing by "refus[ing] to consider the possibility of sentencing [him] to serve part of his sentence[s]" on the use of a firearm convictions in a juvenile correctional facility, as permitted by Code § 16.1-272(A)(1)(i). Bullock concedes "the trial court had the authority to sentence him as it did" under Code § 16.1-272(A)(1)(ii). He asserts, however, that, having "improperly adopted the Commonwealth's position" that Code § 18.2-53.1 precluded Bullock from serving any part of his sentences on the firearm convictions in the juvenile system, the court failed to "give proper consideration" to the sentencing alternative available under Code § 16.1-272(A)(1)(i). Thus, Bullock contends, this matter should be remanded to the trial court for reconsideration of sentencing. We disagree.

"Absent clear evidence to the contrary in the record, the judgment of a trial court comes to us on appeal with a presumption that the law was correctly applied to the facts." Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977); see also Johnson v. Commonwealth, 12 Va.App. 391, 396, 404 S.E.2d 384, 387 (1991) ("On appeal, the judgment of the trial court is presumed correct."). The party alleging reversible error has the burden "to show by the record" that the alleged error occurred. Johnson, 12 Va.App. at 396, 404 S.E.2d at 387; see also Smith v. Commonwealth, 16 Va.App. 630, 635, 432 S.E.2d 2, 6 (1993) ("An appellate court must dispose of the case upon the record and cannot base its decision upon appellant's petition or brief, or statements of counsel in open court.").

For purposes of this appeal, we will assume, without deciding, that the underlying contention implicit in Bullock's claim of error—that the trial court was required, in determining the sentences for Bullock's use of a firearm convictions, to specifically consider the sentencing alternative set forth in Code § 16.1-272(A)(1)(i)—is correct. Nevertheless, we find that the record before us fails to show by clear evidence that the alleged error actually occurred. Indeed, although the record shows the trial court refused to allow Bullock to serve any part of his sentences on the firearm convictions in a juvenile facility, the record fails to support by clear evidence Bullock's assertion that the trial court refused to "consider the possibility" of allowing him to do so.

To the contrary, taken as a whole, the record supports the conclusion that, in determining Bullock's sentences on the firearm convictions, the trial court was aware of and gave consideration to all of the sentencing alternatives set forth in Code § 16.1-272(A)(1). The record demonstrates that Bullock's counsel thoroughly advised the trial court of the sentencing options available to it under Code § 16.1-272(A)(1) and argued at length in favor of the court allowing Bullock to serve part, if not all, of his sentences in the juvenile system under Code §§ 16.1-272(A)(1)(i) or 16.1-272(A)(1)(iii). Defense counsel specifically...