                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia


ANTOINE LEONARD INGRAM
                                         MEMORANDUM OPINION * BY
v.   Record No. 1791-01-1                 JUDGE LARRY G. ELDER
                                             OCTOBER 8, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  Junius P. Fulton, III, Judge

          J. Barry McCracken for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Antoine Ingram (appellant) appeals from his jury trial

convictions for two counts of robbery, two counts of using a

firearm in the commission of robbery, and one count of

conspiracy to commit robbery.   On appeal, he contends he was

entitled to be sentenced by the same jury that convicted him

because, although he was a juvenile when the charged offenses

occurred, he had been tried and convicted as an adult on an

unrelated offense before his trial for the instant offenses and,

thus, pursuant to Code § 16.1-271, was entitled to be treated as

an adult in all stages of the instant proceedings.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     The Commonwealth contends appellant waived any right to be

sentenced by a jury because he failed to object to discharge of

the jury following its verdict in the guilt phase of his trial.

Alternatively, it argues appellant had no right to be sentenced

by a jury in the instant proceedings because he had not yet been

sentenced on the unrelated offense and, thus, he had not been

"tried and convicted . . . as an adult" within the meaning of

Code § 16.1-271.

     Assuming without deciding appellant properly preserved this

issue for appeal, we hold no error occurred.   Thus, we affirm.

                                  I.

                            BACKGROUND

     Appellant was born on July 24, 1982.    On April 22, 2000,

while appellant was seventeen years old, appellant and a

companion committed the instant offenses, which included robbing

Clarence Whitley and Raymond Joyner and using a firearm in the

commission of those robberies.    Juvenile petitions were issued

charging appellant with two counts of robbery and two counts of

using a firearm in the commission of a felony for these events,

hereinafter the Whitley/Joyner robberies.   On July 14, 2000, the

juvenile and domestic relations district court (the juvenile

court) certified the charges to the circuit court, and on August

2, 2000, the grand jury issued indictments for the charged

offenses.   The grand jury also issued a direct indictment



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charging that appellant conspired with another to commit the

April 22, 2000 robberies.

     During this same period of time, appellant underwent

prosecution for another robbery, an unrelated offense alleged to

have occurred on May 2, 2000, hereinafter the Tindall robbery. 1

The juvenile court certified appellant for trial as an adult,

and the grand jury issued an indictment.   Appellant entered a

plea of not guilty, and at trial on February 28 or March 1,

2001, the jury found appellant guilty of the Tindall robbery.

     On March 28, 2001, appellant was tried by a jury for the

Whitley/Joyner robberies and was found guilty of all five

offenses.   At the conclusion of the penalty phase, the trial

court discharged the jury without objection from appellant and

continued the matter until May 18, 2001, for sentencing.

     On May 18, 2001, appellant was sentenced for the Tindall

robbery.    The sentencing in the Whitley/Joyner robberies,

originally set for May 18, 2001, was continued to May 24, 2001.

On that date, appellant argued for the first time that he was

entitled to be sentenced by a jury for the Whitley/Joyner

robberies for which he was convicted on March 28, 2001, because,

at the time of the Whitley/Joyner trial, he had already been

found guilty by a jury of the Tindall robbery.   Appellant


     1
       No documents relating to the Tindall robbery prosecution
appear in the record. The record contains only the parties'
assertions and the trial court's statements regarding the
sequence of events.

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conceded he had not raised this argument previously but

contended the argument was jurisdictional.

     The trial court noted that the sentencing order had not yet

been entered for the Tindall robbery, and with the parties'

agreement, the court continued the matter to June 21, 2001, to

give the parties an opportunity to file memoranda on appellant's

motion for jury sentencing.

     On May 25, 2001, the sentencing order for the Tindall

robbery conviction was entered.

     On June 21, 2001, the trial court denied appellant's motion

for jury sentencing for the Whitley/Joyner robberies.

                                  II.

                              ANALYSIS

     In the case of conviction of an adult by a jury for a

criminal offense, "the term of confinement . . . and the amount

of fine, if any, . . . [also] shall be ascertained by the jury

. . . ."   Code § 19.2-195.

                In any case in which [a charge against
           a juvenile is certified and the] 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. Upon a
           finding [that the juvenile is] guilty of any
           charge other than capital murder, the court
           shall fix the sentence without the
           intervention of a jury.

Code § 16.1-272.   Thus, whereas an adult convicted of a criminal

offense in a jury trial is entitled to be sentenced by a jury,

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as well, a juvenile certified for trial as an adult on any

charge except capital murder ordinarily is not entitled to be

sentenced by a jury.

        Appellant argues that Code § 16.1-271 provides an exception

to that principle under the facts of this case.    Pursuant to

Code § 16.1-271,

                  [t]he trial or treatment of a juvenile
             as an adult pursuant to the provisions of
             this chapter shall preclude the juvenile
             court from taking jurisdiction of such
             juvenile for subsequent offenses committed
             by that juvenile.
                  Any juvenile who is tried and convicted
             in a circuit court as an adult under the
             provisions of this article shall be
             considered and treated as an adult in any
             criminal proceeding resulting from any
             alleged future criminal acts and any pending
             allegations of delinquency which have not
             been disposed of by the juvenile court at
             the time of the criminal conviction.
                  All procedures and dispositions
             applicable to adults charged with such a
             criminal offense shall apply in such cases,
             including, but not limited to . . . trial
             and sentencing as an adult. . . .

        Appellant argues that the jury's returning a verdict of

guilty in the Tindall robbery trial on February 28, 2001,

entitled him to be sentenced as an adult, by a jury, following

his conviction for the Whitley/Joyner robberies on March 28,

2001.    The Commonwealth contends appellant waived any right to

be sentenced by a jury for the Whitley/Joyner robberies because

he failed to object to discharge of the jury following its

verdicts in the guilt phase of his trial.    We assume without


                                 - 5 -
deciding that appellant preserved this issue for appeal and

hold, on the merits, that Code § 16.1-271 did not entitle

appellant to be sentenced as an adult, by a jury, for the

Whitley/Joyner robberies.

     Paragraph 1 of Code § 16.1-271 affects only the

jurisdiction of the juvenile court.     It precludes only the

juvenile court from taking jurisdiction over a juvenile

previously tried or treated as an adult and precludes that

court's exercise of jurisdiction only over subsequent offenses

committed by that juvenile.

     Here, nothing in the record establishes that the juvenile

court exercised jurisdiction over appellant for the

Whitley/Joyner robberies after appellant was tried or treated as

an adult for the Tindall robbery.   The juvenile court's last

actions in relation to the Whitley/Joyner offenses were to

certify the cases on July 14, 2000, and to order the charges and

related documents transferred on July 20, 2000, well in advance

of appellant's February 28, 2001 trial for the Tindall robbery.

Nothing in the record establishes when appellant first might

have been "treat[ed] . . . as an adult" for purposes of the

Tindall robbery, and thus, appellant has failed to prove that

any such treatment occurred while the juvenile court still had

jurisdiction.   Further, the Whitley/Joyner robberies occurred on

April 22, 2000, before the Tindall robbery, which occurred on

May 2, 2000.    Thus, the Whitley/Joyner robberies were not

                                - 6 -
"subsequent offenses committed by that juvenile" within the

meaning of the first paragraph of Code § 16.1-271.    Cf. Johnson

v. Commonwealth, 259 Va. 654, 669, 529 S.E.2d 769, 777 (2000)

(interpreting "future criminal acts" as used in paragraph 2 of

Code § 16.1-271 to mean acts actually occurring later in time

without considering when charges were brought or tried).

     Appellant argues that he should have been sentenced as an

adult for the Whitley/Joyner robberies because he had been

"tried and convicted," as those terms are used in paragraph 2,

for the Tindall robbery before he was tried for the

Whitley/Joyner robberies.   We need not decide, however, whether

the jury's verdict of guilty in the Tindall robbery trial

constituted a "convict[ion]" within the meaning of paragraph 2

because the Whitley/Joyner robberies do not meet either

criterion of the second portion of paragraph 2.

     First, the trial for the Whitley/Joyner robberies was not a

"criminal proceeding resulting from any alleged future criminal

acts" because the Whitley/Joyner robberies occurred before

rather than after the Tindall robbery.   Code § 16.1-271;

Johnson, 259 Va. at 669, 529 S.E.2d at 777.   Second, the

Whitley/Joyner robberies were not "pending allegations of

delinquency which [had] not been disposed of by the juvenile

court at the time of the [Tindall robbery] conviction."

Assuming without deciding that appellant was "convicted" for the

Tindall robbery on the earliest date alleged, February 28, 2001,

                               - 7 -
the date of the jury's verdict, the juvenile court had already

certified the Whitley/Joyner robbery charges on that date, the

grand jury had already issued indictments, and a trial date

already had been set.   Thus, regardless of the definition given

to the word, "convicted," as used in paragraph 2, the statute

did not require the circuit court to sentence appellant as an

adult for the Whitley/Joyner robberies. 2

     Had the legislature wished to require that the conviction

of a juvenile in circuit court would alter the nature of all

unrelated proceedings against that same juvenile which had

already been transferred to and remained pending in the circuit

court, it could have done so.   Instead, the only pending circuit

court proceedings affected by Code § 16.1-271 are those

"resulting from any alleged future criminal acts."   Johnson, 259

Va. at 669, 529 S.E.2d at 777 (interpreting "future criminal

acts" as acts occurring later in time than original offense

without considering when trial and conviction for original

offense occurred).

     For these reasons, we affirm the challenged convictions.

                                                       Affirmed.




     2
       Because the factual assumptions we make allow us to decide
this case based on express statutory language, see Code
§ 16.1-271, and existing interpretations of the terms "future"
and "subsequent" as used in that statute, see Johnson, 259 Va.
at 669, 529 S.E.2d at 277, we conclude this decision does not
warrant publication.

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