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SULEIMAN v. COMMONWEALTH OF VIRGINIA


SULEIMAN
v. COMMONWEALTH OF VIRGINIA


FEBRUARY 3, 1998
Record No. 3130-96-4

SAMMY D. SULEIMAN

v.

COMMONWEALTH OF
VIRGINIA

OPINION BY JUDGE
ROSEMARIE ANNUNZIATA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY

Jane Marum Roush,
Judge
Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia

William B.
Reichhardt (Elizabeth D. Teare; William B. Reichhardt &
Associates; Surovell, Jackson, Colten & Dugan, P.C., on
briefs), for appellant.

John K. Byrum, Jr.,
Assistant Attorney General (Richard Cullen, Attorney General;
Marla Graff Decker, Assistant Attorney General, on brief), for
appellee.


Sammy D. Suleiman
(appellant), a juvenile, appeals the sentence imposed by the
circuit court after his conviction for robbery. He contends the
court did not sentence him in accordance with the requirements of
Code
? 16.1?285.1, which govern the
sentencing of serious juvenile offenders. Finding no error, we
affirm.

This case is before
us on an agreed statement of facts. Appellant and two
codefendants robbed a 7?11 store in Fairfax County after
evaluating various commercial establishments to determine which
to rob. One of appellant's codefendants went into the store,
brandished a handgun at the 7?11 cashier, and demanded money.
Appellant entered the store and told the cashier to do as his
codefendant instructed. Appellant then removed cash and
cigarettes from the countertop. Appellant and his codefendants
were arrested approximately five minutes after the robbery as
they attempted to flee from the 7?11. After his arrest,
appellant admitted that he had participated in the robbery and
stated that the robbery was his idea.

The Commonwealth
filed a petition against appellant in the juvenile and domestic
relations district court on March 25, 1996, alleging that he
robbed a 7?11 store in Fairfax, Virginia, on March 24, 1996. The
Commonwealth sought to try appellant as an adult, but the
juvenile court declined to release its jurisdiction over the case
to the circuit court. Appellant entered a plea of nolo contendere
and filed an appeal to the circuit court. At trial, contrary to
his earlier admissions, appellant maintained that he did not know
that a robbery was in progress as he entered the store. One of
appellant's codefendants testified that appellant was the
"mastermind" behind the robbery. The codefendant also
testified that two weeks earlier he and appellant had stolen the
weapons used in the robbery from a Walmart. A jury convicted
appellant of robbery.

At a sentencing
hearing on November 22, 1996, the trial court received and
reviewed a court report from the probation office. In the court
report, a probation officer recited details of the robbery taken
from the police report and stated that the 7?11 clerk had been
in fear of being seriously injured or killed during the robbery
while "the defendants were making demands." The
probation officer also reported that appellant had one prior
arrest for assault, which had been continued and dismissed
following a period of supervised probation and community service.
In an interview with probation officials, appellant denied the
assault.

Appellant's former
probation officer reported "very minimal concerns" with
appellant and his family during appellant's period of probation.
The report described as generally good appellant's family,
neighborhood, and school experiences. The probation officer
explained that, although appellant "was in relatively good
standing" at his school, he had received three in?school
suspensions for disciplinary violations, such as skipping class
or disobeying teachers. The report described appellant as
"being very immature, impulsive, and easily influenced by
other peers."

The probation
officer concluded as follows:

It has become
evident to this reporter that Sammy David Suleiman has failed
to accept responsibility for his actions on the night in
question, and has continued to minimize his involvement in
this crime. Furthermore, it is the feeling of this officer
that Sammy Suleiman does not understand the seriousness of
this type of criminal behavior, nor has he shown an
appropriate amount of remorse for his actions.

The probation
officer recommended that appellant be committed to the Department
of Juvenile Justice until his twenty?first birthday.

In support of his
argument that he was amenable to treatment through
non?incarceration juvenile programs, appellant presented the
testimony of Dr. Christopher Lane, a clinical psychologist, who
testified that appellant was remorseful and amenable to treatment
as an outpatient. Dr. Lane testified that appellant's five month
incarceration would act as a deterrent to further criminal
activity and that further incarceration would not be helpful and
would interfere with appellant's ongoing treatment.

Appellant also
presented testimony from his school guidance counselor to
establish that appellant had performed well in school and could
return to school if allowed by the court.

A petition signed by
members of appellant's community was introduced. The petition
stated that the signatories had no concern for the safety of the
community if appellant were released. Finally, appellant
presented evidence that he had responded well to electronic
monitoring and probation and that he had successfully held a job
while on probation.

In sentencing
appellant, the trial court stated as follows:

In
consideration, the Court found that the Defendant comes
within the purview of the Juvenile and Domestic Relations
District Court Law of the 1950 Code of Virginia, as amended,
pursuant to
? 16.1?285.1. The
Court considered, among other factors, that the juvenile is
fourteen (14) years of age or older and that the commitment
under this section is necessary to meet the rehabilitative
needs of the juvenile and would best serve the interests of
the community; and that the felony offense is punishable by a
term of confinement of greater than twenty years if the
felony was committed by an adult.

The court remanded
appellant to the Department of Juvenile Justice for a period of
four years and six months, not to exceed his twenty?first
birthday. The trial court denied appellant's motion for
reconsideration of his sentence in which he alleged that the
trial court had not made the required statutory findings.

On appeal, appellant
contends the trial court erred when it failed to determine that
appellant was not a proper person to receive treatment through
juvenile programs other than incarceration. Appellant also argues
that no evidence supports the trial court's determination, if in
fact one was made.

The proper
interpretation of Code
? 16.1?285.1 is a
question of first impression for this Court. "Principles of
statutory construction mandate that we 'give effect to the
legislative intent.' While penal statutes must be strictly
construed against the Commonwealth, '[t]he plain, obvious, and
rational meaning of a statute is always preferred to any curious,
narrow or strained construction . . . ." Newton v.
Commonwealth, 21 Va. App. 86, 89, 462 S.E.2d 117, 119 (1995).

Code ? 16.1?285.1
provides that a serious juvenile offender may be committed to the
custody of the Department of Juvenile Justice for a period of
seven years or until the juvenile's twenty?first birthday,
whichever occurs first. Generally, "when the maximum
punishment is prescribed by statute, 'and the sentence [imposed] does not exceed that maximum, the sentence will not be overturned
as being an abuse of discretion.'" Valentine v.
Commonwealth, 18 Va. App. 334, 339, 443 S.E.2d 445, 448 (1994)
(quoting Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900,
903 (1977)).

As appellant
contends, however, Code
? 16.1?285.1 requires
the trial court to make certain findings prior to sentencing a
juvenile as a serious offender. Code
? 16.1?285.1(A) allows a
circuit court to commit a juvenile as a serious offender

[i]n the case of
a juvenile fourteen years of age or older who has been found
guilty of an offense which would be a felony if committed by
an adult, and . . . (iii) the felony offense
is punishable by a term of confinement of greater than twenty
years if the felony was committed by an
adult, . . . and the circuit
court . . . finds that commitment under this
section is necessary to meet the rehabilitative needs of the
juvenile and would serve the best interests of the
community . . . .

Prior to committing
the juvenile as a serious offender, the court must consider the
age of the juvenile, the "seriousness and number of the
present offenses," the "previous history of the
juvenile," and the "Department's estimated length of
stay." Code
? 16.1?285.1(B). In
addition, the court's "commitment order must be supported by
a determination that the interests of the juvenile and community
require that the juvenile be placed under legal restraint or
discipline and that the juvenile is not a proper person to
receive treatment or rehabilitation through other juvenile
programs or facilities." Id.

We find that the
court's written findings in this case satisfy the requirements of
the statute and constitute evidence that the court made the
required determination that the appellant "is not a proper
person to receive treatment or rehabilitation through other
juvenile programs or facilities." Code
? 16.1?285.1(B).[1]

The findings in the
court's order track the findings required under Code
? 16.1?285.1(A):
appellant is fourteen years of age or older, his commitment is
necessary to meet his rehabilitation needs and best serve the
interests of the community, and appellant's felony offense would
be punishable by incarceration for more than twenty years if
committed by an adult. While the court's order does not
explicitly address the question of whether appellant is a proper
person to receive treatment through other programs, it states
that "commitment under this section is necessary to meet the
rehabilitative needs of the juvenile." We find that this
statement reflects the court's implicit determination that
appellant is not a proper person for non?incarceration juvenile
treatment. If commitment is "necessary" to meet
appellant's rehabilitative needs, other, less intrusive means of
treatment will not fulfill his needs, and, therefore, he is not a
proper person for the "other programs" to which the
statute refers.

Appellant's second
contention, that the evidence does not support the court's
findings, is fundamentally a question of the sufficiency of the
evidence. We are required to view the evidence in the light most
favorable to the Commonwealth. Cotton v. Commonwealth, 20 Va.
App. 596, 597, 459 S.E.2d 527, 528 (1995) (en banc) (citing
Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497
(1990) (en banc)). Furthermore, whether appellant was a proper
person to receive treatment or rehabilitation through
non?incarceration programs is a question of fact, and we may not
reverse a court's finding of fact unless it "'is plainly
wrong or without evidence to support it.'" Id. (quoting
Josephs, 10 Va. App. at 99, 390 S.E.2d at 497).

The evidence
supports the court's findings of fact. Appellant was convicted of
robbery. The court heard evidence that appellant was the
"mastermind" behind the robbery and stole the weapons
used in the crime. These circumstances establish that appellant
was directly responsible for his crime.

The Commonwealth
also presented substantial evidence that appellant and his
parents had not accepted responsibility for appellant's acts. At
trial, appellant denied his earlier admission of guilt. In an
interview with the probation office, he denied his earlier
assault and did not show remorse for his crime. The court
received evidence that appellant's parents did not hold him fully
accountable for his crime but instead blamed appellant's
diabetes. While appellant presented a petition from members of
his community, the petition does not reflect that the signatories
were aware of the nature of appellant's crime. Dr. Lane testified
that appellant was remorseful, but the trial court had the
discretion to weigh conflicting testimony and conclude that
appellant did not appreciate the seriousness of his acts and,
thus, was not likely to benefit from treatment alternatives short
of incarceration. See Davison v. Commonwealth, 18 Va. App. 496,
502, 445 S.E.2d 683, 687 (1994) (citing Bridgeman v.
Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601?02
(1986)).

Finding that the
court's order rested on a determination that appellant was not a
proper person for non?incarceration juvenile programs and that
its sentencing decision was not plainly wrong or unsupported by
the evidence, we affirm the conviction.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] To the extent appellant's argument
encompasses a claimed requirement that the court must make
detailed findings in writing, we disagree, provided the record
discloses that all the statutory factors have been considered and
the required determination has been made. While making the
required determination and findings in writing may agreeably be a
sound practice, it is apparent from the language of the statute
that Code
? 16.1?285.1(B) does not require
that the determination be in written form.

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