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Jury Sentencing Upheld

In this underage defendant’s prosecution for a gang-related shooting in which he struck a Lynchburg taxicab driver, causing him to crash his car into a tree, the Supreme Court of Virginia says a jury could sentence defendant over his objection.

In this criminal appeal, we decide whether a person under age 18 may be sentenced by a jury rather than a judge on one or more charges specified in Va. Code § 16.1-269.1(B) and (C). Pursuant to that Code section, charges against appellant, then 16 years old, for aggravated malicious wounding and use of a firearm were certified to the grand jury by a JDR court. He then was indicated by a grand jury for these two offenses and for participation in an act of violence in association with a criminal street gang in violation of Code § 18.2-46.2.

Code § 16.2-271 applies to any juvenile who is tried and convicted in a circuit court as an adult. On the other hand, Code § 16.1-272 applies in any case in which a juvenile is indicted.

When defendant appeared before the circuit court for sentencing on the three charges under review, he was not a juvenile. He had been previously convicted as an adult on an unrelated charge and given an adult sentence on June 6, 2008. The necessary conclusion, therefore, is that the jury was correctly allowed to sentence defendant on the three charges.

The court rejects defendant’s request that we apply the ends of justice exception in Rule 5:25 to consider the argument that any procedure for jury sentencing of persons under the age of 18 must include a requirement that the jury be instructed to consider the defendant’s youth in mitigation.

Judgment affirmed.

Saunders v. Commonwealth (Carrico) No. 100906, March 4, 2011; Va.Ct.App. VLW 011-6-043, 8 pp.

VLW 011-6-043

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