                       COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Annunziata and Bumgardner
Argued at Alexandria, Virginia


RANDY PRESSLEY, S/K/A
 RANDY NICHOLAS PRESSLEY
                                         MEMORANDUM OPINION * BY
v.     Record No. 3019-96-4            JUDGE ROSEMARIE ANNUNZIATA
                                            JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                         Michael P. McWeeny, Judge
               Emil P. Moschella for appellant.

               John H. McLees, Jr., Assistant Attorney
               General (Richard Cullen, Attorney General, on
               brief), for appellee.



       Randy Nicholas Pressley (appellant) appeals his sentence for

attempted robbery and one count of use of a firearm in the

commission of a felony.      He contends that the trial court erred

in believing that it lacked the discretion to sentence him as a

juvenile.      We find no error in the court's decision and affirm.

       We limit our discussion of the facts and arguments to those

which are strictly relevant to our decision.      When appellant was

seventeen years old, he used an air rifle to attempt to rob two

men.       The Commonwealth filed petitions in the juvenile and

domestic relations district court charging appellant with one

count each of attempted robbery and use of a firearm in the

commission of a felony.      After waiving a transfer hearing,

appellant was transferred to circuit court where he was indicted
       *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
by a grand jury for the same crimes.     Appellant subsequently

pleaded guilty to both counts.

     A Presentence Investigation Report prepared on October 8,

1996, describes appellant as eighteen years old and the upcoming

sentencing as "his first adult felony sentencing event."    Prior

to the sentencing hearing, appellant filed a memorandum arguing

that he may and should be sentenced as a juvenile because he had

not committed a "violent juvenile felony" which would require he

be sentenced as an adult.
     Appellant was sentenced on November 8, 1996, one month and

three days after his eighteenth birthday.    At the sentencing

hearing, the Commonwealth argued that the minimum mandatory

three-year sentence applied whether appellant was treated as a

juvenile or an adult, but that the court should impose a longer

sentence.   The court sentenced appellant to five years

incarceration for attempted robbery, with four years and six

months suspended, and three years incarceration for use of a

firearm during a felony.

     Under the relevant provisions of Title 16.1, it is clear

that the circuit court had the authority to sentence appellant

either as a juvenile or as an adult. 1   In appellant's Memorandum
     1
      Code § 16.1-272 provides in relevant part:

            Power of circuit court over juvenile
            offender. A. 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


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re Sentencing submitted for the court's consideration, the

appellant asked the court to consider imposing a sentence under

Code § 16.1-272(A).   He also asked the court to consider other

sentencing provisions of Title 16.1, including Code §§ 16.1-278.8

and 16.1-284.1.   After considering the Memorandum and the

argument of both counsel, the trial court declined to sentence

appellant under the juvenile code, stating:
          Mr. Pressley, your counsel has made a very

          otherwise provided with regard to
          sentencing. . . .
               1. If a juvenile is convicted of a
          violent juvenile felony, the sentence for
          that offense and for all ancillary crimes
          shall be fixed by the court in the same
          manner as provided for adults, but the
          sentence may 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.
               2. If the juvenile is convicted of any
          other felony, the court may sentence or
          commit the juvenile offender in accordance
          with the criminal laws of this Commonwealth
          or may in its discretion deal with the
          juvenile in the manner prescribed in this
          chapter for the hearing and disposition of
          cases in the juvenile court, including, but
          not limited to, commitment under
          § 16.1-285.1.

     Code § 16.1-284 provides:
          When adult sentenced for juvenile offense.
          When the juvenile court sentences an adult
          who has committed, before attaining the age
          of eighteen, an offense which would be a
          crime if committed by an adult, the court may
          impose the penalties which are authorized to
          be imposed on adults for such violations, not
          to exceed the punishment for a Class 1
          misdemeanor for a single offense or multiple
          offenses.




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            strong argument for treatment under the
            Youthful Offender Act but one of the
            exclusions of the Youthful Offender Act is
            for violent felonies and that's where this
            falls. I can not treat you as a juvenile.


     On appeal, the appellant concludes from these statements by

the court that it erroneously failed to properly exercise its

discretion, contending inter alia, that the court did not believe

it had the authority to do so.   We disagree.

     Appellant first contends that the court erred in concluding

it could not sentence appellant as a juvenile under Code

§ 16.1-269.1, because of his "violent felony."   Appellant

correctly points out that neither of his offenses of conviction,

attempted armed robbery and use of a firearm in the commission of

a felony, is enumerated as a "violent juvenile felony" under Code

§ 16.1-269.1.   However, as is argued by the Commonwealth, the

court's reference to "violent felony" does not ineluctably lead

to the conclusion that it was referring to the "violent juvenile

felony" provision of Code § 16.1-269.1 when it stated its

findings.   Indeed, the record, taken as a whole, supports the

conclusion that the court had before it and gave consideration to

all the relevant factors under the juvenile sentencing provisions

in determining whether appellant was more properly sentenced

under the criminal law applicable to adults or that governing the

disposition of juveniles, and that, in announcing its finding, it

was not particularly addressing the requirements for sentencing

under Code § 16.1-269.1.   In the absence of clear evidence to the



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contrary, "we presume that a trial judge . . . properly applied

the law."   Brown v. Commonwealth, 8 Va. App. 126, 133, 380 S.E.2d

8, 12 (1989) (citing Yarborough v. Commonwealth, 217 Va. 971,

978, 234 S.E.2d 286, 291 (1977)).    Viewing the evidence in the

record before us as a whole, we find it insufficient to rebut

this presumption.

     For the reasons stated in this opinion, we affirm.

                                                          Affirmed.




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