                        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:




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          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).




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     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




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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.




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