Vasquez v. Commonwealth

PRESENT: All the Justices
DARIEN VASQUEZ
OPINION BY
v. Record No. 141071 JUSTICE D. ARTHUR KELSEY
February 12, 2016
COMMONWEALTH OF VIRGINIA
BRANDON VALENTIN
v. Record No. 150357
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Darien Vasquez and Brandon Valentin, two sixteen-year-old males, broke into the
townhouse of a college student, raped her at knifepoint, and threatened to kill her if she resisted.
They also committed a host of other crimes before leaving the victim’s townhouse. The trial
court convicted Vasquez of eighteen felonies and Valentin of twelve felonies.
On appeal, Vasquez and Valentin claim that the aggregate term-of-years sentences
imposed by the court violated the Eighth Amendment’s prohibition of cruel and unusual
punishment. They also contend that the evidence was insufficient to establish that either one of
them possessed a knife at the time of the break-in. On both contentions, we disagree and affirm.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth,
the prevailing party in the trial court. Bowman v. Commonwealth, 290 Va. 492, 494, 777 S.E.2d
851, 853 (2015) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003)). “Viewing the record through this evidentiary prism requires us to ‘discard the evidence
of the accused in conflict with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.’” Id.
(quoting Kelley v. Commonwealth, 289 Va. 463, 467-68, 771 S.E.2d 672, 674 (2015)).
A.
The victim, a female college student, lived in an off-campus townhouse with two
housemates. One evening in October 2012, both of the victim’s housemates were out of town,
and she had gone to bed feeling sick. Vasquez and Valentin broke in through a window of the
townhouse carrying backpacks, one of which contained a “wolf knife.” J.A. at 403. They began
stealing property belonging to the victim’s housemates. They then entered the victim’s bedroom.
She awoke as Vasquez held a large knife to her throat. Valentin stood by the bedroom door, also
holding a knife, and blocked the exit.
Vasquez demanded cash. When the victim said she had none, Vasquez stated, “[W]ell
then you’re going to die.” Id. at 121. The victim pleaded with them to take her wallet, credit
cards, and a game console. Pressing the knife to her back, Vasquez led the victim around the
bedroom to retrieve these items. After collecting the victim’s belongings, Vasquez ordered her
to undress. He then pushed her to the floor and demanded that she “suck him off,” or he would
kill her. Id. at 123. She complied. As Vasquez forced her head down, she began choking.
After a few minutes, Vasquez put the knife again to her back and pushed her to the bed.
With the knife “right in front of me,” the victim testified, Vasquez raped her. Id. at 125. He
later demanded she also have sex with Valentin. Vasquez directed her to “suck him off again”
while Valentin attempted to penetrate her from behind. Id. at 127. While the victim performed
fellatio on Vasquez for a second time, Valentin unsuccessfully attempted to penetrate her anus
and vagina from behind. During this attempt, Valentin threatened the victim, saying, “[D]on’t
turn around, I’ll kill you if you turn around.” Id. at 128.
2
At some point, Vasquez got up and left the bedroom. Valentin closed the bedroom door
and locked it, leaving the victim alone with him. While displaying his knife, Valentin pushed the
victim back on the bed and raped her vaginally. Vasquez returned to the bedroom, led the victim
to the bathroom at knifepoint, and made her perform fellatio on him a third time. He repeatedly
struck her in the head with the blunt end of the knife and slapped her in the face. Vasquez then
said he wanted anal sex. He ran his knife across her back and along her flank area. Vasquez
attempted to rape her anally but could not successfully penetrate. Valentin watched from the
doorway, continuing to block any attempt by the victim to escape.
Vasquez thereafter led the victim through other rooms of the townhouse looking for more
things to steal. As Valentin took stolen property out through a window, Vasquez once again
forced the victim to perform oral sex on him. He forcibly pushed his penis into her throat,
choking her for several minutes. Vasquez afterwards turned her around and raped her anally
with his penis and with another object.
Still armed with a knife, Vasquez then pulled the victim toward the window and told her
that she would have to leave with them. Valentin pushed Vasquez away from the victim. Before
leaving, Vasquez approached the victim with the knife, “jab[bed] it at [her] stomach,” and
warned her that they would “come back with thirty guys and kill [her]” if she called the police.
Id. at 138.
Police arrested Vasquez and Valentin that same night. 1 They had in their possession the
property stolen from the townhouse. They made various self-incriminating statements to the
police and made similar inculpatory remarks to each other. Valentin admitted to breaking into
the townhouse, stealing property, and raping the victim at knifepoint. “What fun is raping a
1
After their initial arrest, Valentin escaped custody. He was not arrested again until two
or three hours later when he was discovered “directly behind the victim’s home.” J.A. at 259.
3
bitch,” he said, “and running?” Id. at 314. Reflecting on the episode, Valentin concluded:
“We’re sixteen and we’re getting tried as an adult [sic]. Should have killed that bitch.” Id. at
318-19. Vasquez also confessed to the sexual crimes. Concluding that he would likely be found
guilty, Vasquez said he would simply “apologize for it.” Id. at 319.
B.
The juvenile and domestic relations court transferred the prosecution of both defendants
to the circuit court, where the grand jury returned twenty-two felony indictments against
Vasquez and seventeen against Valentin. At their joint trial, Vasquez and Valentin made various
motions to strike. One of their arguments, relevant to the armed-with-a-deadly-weapon element
of the indictments for breaking and entering, was that the evidence was insufficient to prove that
either Vasquez or Valentin possessed a knife at the time they entered the townhouse. They
asserted “an alternate hypothesis of innocence that all the knives involved . . . were acquired . . .
once the two parties went into the apartment in general.” Id. at 409. The trial court denied most
of the motions to strike 2 and found Vasquez guilty on eighteen indictments and Valentin guilty
on twelve.
The trial court ordered the preparation of presentence reports and victim-impact
statements. At the sentencing hearing, the trial court received extensive information addressing
the brutality of the crimes and their effect on the victim. The court also learned that Vasquez
was on juvenile probation at the time of the offenses and that, in the weeks prior to these crimes,
Valentin had committed multiple other nighttime break-ins of other occupied homes.
2
The defendants argued that the single-larceny doctrine prohibited the multiple larceny
indictments against them. The trial court specifically granted the defendants’ motions to strike
regarding duplicate larceny indictments (and the accompanying conspiracy indictments). See
J.A. at 481, 486, 490, 493. The trial court also held that Valentin was not guilty of one
indictment of attempted rape because the court found that it “was the same act” as another
indictment. Id. at 492.
4
The trial court rejected the suggestion that the crimes were in any way unplanned or
spontaneous. “These were each individual crimes,” id. at 620, the court explained, committed at
knifepoint by two “young predator[s]” in a “careful and calculated” manner over an extended
period of time, id. at 619. The court stated that it considered Vasquez to be slightly more
culpable than Valentin, but both were guilty of “absolutely heinous criminal acts.” Id. at 628.
The court also considered Valentin’s lack of genuine remorse, evidenced by his post-arrest
conversation showing Valentin “laughing” with Vasquez about their crimes and musing that it
would have been better if they had just “killed the fucking bitch.” Id. at 319, 629. 3
At the conclusion of the hearing, the court imposed multiple term-of-years sentences,
which, in the aggregate, equaled 283 years for Vasquez, with 150 years suspended, and 148
years for Valentin, with 80 years suspended. The suspended sentences reduced the active
incarceration time to 133 years for Vasquez and 68 years for Valentin. 4 Between the two
defendants and their total of thirty convictions, each conviction received an average of 6.7 years
of active incarceration.
Vasquez and Valentin filed petitions for appeal with the Court of Appeals, challenging
the constitutionality of their sentences and the sufficiency of the evidence supporting their
convictions for breaking and entering while armed with a deadly weapon. In per curiam orders,
the Court of Appeals denied Vasquez’s petition in its entirety and denied Valentin’s petition
3
The trial court also took into account the fact that both defendants would be reviewed
for possible conditional release under Code § 53.1-40.01, see J.A. at 621, 631, making available
“the normal parole consideration process” to all convicts once they reach the age of sixty, Angel
v. Commonwealth, 281 Va. 248, 275, 704 S.E.2d 386, 402 (2011).
4
See Appellee’s Br. Attach. 1, at 1-5 (Summary of Appellants’ Indictments, Convictions,
and Sentences). There appears to be a mathematical error in the appellee’s final calculation of
the total aggregate sentence for Valentin. See id. at 5. According to both the record and the
contents of the appellee’s summary, Valentin’s total aggregate sentence is 148 years rather than
153, with a net sentence of 68 years rather than 73. See J.A. at 88-94 (Valentin’s Sentencing
Order).
5
regarding issues before this Court. 5 We awarded an appeal to both defendants, consolidated their
cases for decision, and now affirm the Court of Appeals.
II.
A. CRUEL & UNUSUAL — AGGREGATE TERM-OF-YEARS SENTENCES
Vasquez and Valentin argue on appeal, as they did in the trial court, that their sentences
should be judicially declared cruel and unusual under the Eighth Amendment to the United
States Constitution. The United States Supreme Court has developed “two strands of precedent”
to determine whether a criminal sentence is unconstitutionally disproportionate. Miller v.
Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2463 (2012). The first is a “categorical”
approach, fixing bright lines that limit criminal sentences “based on mismatches between the
culpability of a class of offenders and the severity of a penalty.” Id. The second is a “case-by-
case approach,” Graham v. Florida, 560 U.S. 48, 77 (2010), that focuses specifically on “all the
circumstances in a particular case,” id. at 59. 6
In 2005, the Supreme Court commenced a trilogy of decisions adopting three categorical
prohibitions for criminal offenders under the age of eighteen. First, no matter the severity of the
crime, “[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on
offenders who were under the age of 18 when their crimes were committed.” Roper v.
Simmons, 543 U.S. 551, 578 (2005). Second, the Eighth Amendment “prohibits the imposition
of a life without parole sentence on a juvenile offender who did not commit homicide.” Graham,
5
The Court of Appeals granted Valentin’s assignment of error regarding the sufficiency
of the evidence for attempted anal intercourse by force, threat, or intimidation in violation of
Code §§ 18.2-26 and -67.1. However, the Court of Appeals affirmed that conviction in an
unpublished order, Valentin v. Commonwealth, Record No. 1791-13-3, 2015 Va. App. LEXIS
34 (Feb. 3, 2015), which is not challenged on appeal to this Court.
6
This approach is best exemplified by Chief Justice Roberts’s opinion concurring in the
judgment in Graham, 560 U.S. at 86-96.
6
560 U.S. at 82. “A State need not guarantee the offender eventual release, but if it imposes a
sentence of life it must provide him or her with some realistic opportunity to obtain release
before the end of that term.” Id. Finally, the Court held that “mandatory life-without-parole
sentences for juveniles violate the Eighth Amendment.” Miller, 567 U.S. at ___, 132 S. Ct. at
2464; see also Montgomery v. Louisiana, 577 U.S. ___, 2016 U.S. LEXIS 862, at *34-35 (Jan.
25, 2016) (holding that Miller applies retroactively to cases in which state courts collaterally
review sentences imposed prior to Miller).
Vasquez and Valentin do not contend that their various term-of-years sentences violate
the case-by-case approach to judging disproportionate sentences under the Eighth Amendment.
They instead argue only that we should expand Graham’s prohibition of life-without-parole
sentences to non-life sentences that, when aggregated, exceed the normal life spans of juvenile
offenders. For several reasons, we decline the invitation to do so.
First, we must clarify the precise holding of Graham. It clearly applied only to “the
imposition of a life without parole sentence on a juvenile offender who did not commit
homicide.” Graham, 560 U.S. at 82 (emphasis added). The holding was so limited because, as
the Court observed, “[t]he instant case concern[ed] only those juvenile offenders sentenced to life
without parole solely for a nonhomicide offense.” Id. at 63 (emphasis added). Nowhere did
Graham address multiple term-of-years sentences imposed on multiple crimes that, by virtue of
the accumulation, exceeded the criminal defendant’s life expectancy.
Justice Alito made this very point in his dissent without the slightest suggestion to the
contrary in the majority opinion. See id. at 124 (Alito, J., dissenting) (“Nothing in the Court’s
opinion affects the imposition of a sentence to a term of years without the possibility of
parole.”); see also United States v. Cobler, 748 F.3d 570, 580 n.4 (4th Cir. 2014) (“The Supreme
7
Court has not yet decided the question whether a lengthy term-of-years sentence is, for
constitutional purposes, the same as a sentence of life imprisonment without the possibility of
parole.”).
As Vasquez’s counsel acknowledges, Graham “did not address the question directly” that
we face in this case. See Oral Argument Audio at 1:01 to 1:05. That should not deter us, he
contends, because we have the “prerogative” to “extend” precedential holdings of the United
States Supreme Court. Id. at 3:24 to 3:50. Valentin’s counsel does not go that far. He merely
contends that we should give precedential treatment to the “reasoning” in Graham, which
generalized that “children are simply less culpable” than adults and have a “greater capacity for
reform.” Oral Argument Audio at 10:48 to 10:55. Neither of these views persuades us.
We are duty bound to enforce the Eighth Amendment consistent with the holdings of the
highest court in the land. Cf. DIRECTV, Inc. v. Imburgia, 577 U.S. ___, ___, 136 S. Ct. 463,
468 (2015). But the duty to follow binding precedent is fixed upon case-specific holdings, not
general expressions in an opinion that exceed the scope of a specific holding. Though perhaps a
subtle distinction, Chief Justice John Marshall emphasized its importance to the judicial process:
It is a maxim not to be disregarded, that general expressions, in
every opinion, are to be taken in connection with the case in which
those expressions are used. If they go beyond the case, they may
be respected, but ought not to control the judgment in a subsequent
suit when the very point is presented for decision. The reason of
this maxim is obvious. The question actually before the Court is
investigated with care, and considered in its full extent. Other
principles which may serve to illustrate it, are considered in their
relation to the case decided, but their possible bearing on all other
cases is seldom completely investigated.
Cohens v. Virginia, 19 (6 Wheat.) U.S. 264, 399-400 (1821) (emphasis added) (quoted with
approval in Virginia Ry. & Power Co. v. Dressler, 132 Va. 342, 350-51, 111 S.E. 243, 245-46
8
(1922)); see also Wright v. United States, 302 U.S. 583, 593-94 (1938) (reaffirming Chief Justice
Marshall’s “oft-repeated admonition”). 7
In other words, as Dean Lile explained, only a specific point “officially decided or
settled” by a judicial holding “in a case in which it is directly and necessarily involved” can truly
be called binding precedent. William M. Lile et al., Brief Making and the Use of Law Books
321 (Roger W. Cooley & Charles Lesley Ames eds., 3d ed. 1914). Understandably so, for the
very concept of binding precedent presupposes that courts are “bound by holdings, not
language.” Alexander v. Sandoval, 532 U.S. 275, 282 (2001). Such distinctions are important if
we want “to keep the scale of justice even and steady” and to keep it from tipping in one
direction or the other “with every new judge’s opinion” or “private sentiments” on the subject. 1
William Blackstone, Commentaries *69.
That is exactly the situation we face here. Neither Vasquez nor Valentin was convicted
of a single crime accompanied by a life-without-parole sentence. Vasquez was found guilty of
eighteen separate crimes, including forcible vaginal and anal rape, breaking and entering while
armed with a deadly weapon, forcible fellatio, forcible sodomy, abduction, and robbery.
Valentin was found guilty of twelve similar crimes. Between the two of them, the average per-
crime sentence was 6.7 years of active incarceration. The only reason that the aggregate
sentences exceeded their life expectancies was because they committed so many separate crimes.
These cases are nothing like Graham, which involved a single crime resulting in a single life-
without-parole sentence.
7
See also Cardwell v. Norfolk & W. Ry. Co., 114 Va. 500, 510, 77 S.E. 612, 616 (1913)
(“The language used in the opinion in that case, as in all cases, must be read and interpreted in
the light of the facts of the case in judgment.”); Martin P. Burks, Common Law and Statutory
Pleading and Practice § 431, at 851 (T. Munford Boyd ed., 4th ed. 1952) (“General expressions
in an opinion . . . may be respected but do not control the judgment in a subsequent suit.”).
9
Our refusal to extend Graham beyond its holding to a dissimilar context finds support
from two of the three United States Courts of Appeal that have addressed this issue. The Sixth
Circuit has held that Graham “does not clearly establish that consecutive, fixed-term sentences
for juveniles who have committed multiple nonhomicide offenses are unconstitutional when they
amount to the practical equivalent of life without parole.” Bunch v. Smith, 685 F.3d 546, 547
(6th Cir. 2012). The “analysis” in Graham, the Sixth Circuit reasoned, simply “did not
encompass consecutive, fixed-term sentences.” Id. at 551. 8 The Fifth Circuit has come to the
same conclusion, holding that neither Graham nor Miller “applies to [a] discretionary federal
sentence for a term of years” and that to attempt such an application “would require the
extension of precedent.” United States v. Walton, 537 F. App’x 430, 437 (5th Cir. 2013) (per
curiam). 9
8
See also Goins v. Smith, 556 F. App’x 434, 439-40 (6th Cir. 2014) (following Bunch
and refusing to apply Graham to a juvenile nonhomicide offender facing a sentence of 84 years);
United States v. Walker, 506 F. App’x 482, 489 (6th Cir. 2012) (noting that “Graham does not
apply in cases where the defendant receives a sentence that is ‘less severe’ than a life sentence”).
9
See also State v. Kasic, 265 P.3d 410, 415 (Ariz. Ct. App. 2011) (holding Graham
inapplicable to an aggregate sentence for “thirty-two felonies involving multiple victims” where
“the longest prison term . . . for any single count was 15.75 years”); State v. Brown, 118 So. 3d
332, 335, 341 (La. 2013) (holding Graham inapplicable to a 70-year aggregate sentence where
defendant would not be eligible for release until age 86); Willbanks v. Missouri Dep’t of Corrs.,
No. WD77913, 2015 Mo. App. LEXIS 1100, at *50 (Mo. Ct. App. Oct. 27, 2015) (unpublished)
(“declin[ing] to extend Graham’s holding to multiple, consecutively imposed, non-[life without
parole], term-of-years sentences”); State v. Watkins, Nos. 13AP-133, -134, 2013 Ohio App.
LEXIS 5791, at *13-14 (Ohio Ct. App. Dec. 17, 2013) (unpublished) (holding Graham
inapplicable to a 67-year aggregate sentence for a juvenile nonhomicide offender), appeal granted
by 10 N.E.3d 737 (Ohio 2014); State v. Merritt, No. M2012-00829-CCA-R3-CD, 2013 Tenn.
Crim. App. LEXIS 1082, at *16 (Tenn. Crim. App. Dec. 10, 2013) (unpublished) (holding
Graham inapplicable to a 225-year aggregate sentence comprised of nine 25-year consecutive
sentences); Burnell v. State, No. 01–10–00214-CR, 2012 Tex. App. LEXIS 34, at *23-24 (Tex.
Ct. App. Jan. 5, 2012) (unpublished) (holding Graham inapplicable to a 25-year sentence). But
see People v. Caballero, 282 P.3d 291, 295 (Cal. 2012), rev’g 119 Cal. Rptr. 3d 920 (Cal. Ct.
App. 2011); Henry v. State, 175 So. 3d 675, 680 (Fla. 2015), rev’g 82 So. 3d 1084 (Fla. Dist. Ct.
App. 2012).
10
The only federal appellate court to reach the opposite conclusion is the Ninth Circuit. In
Moore v. Biter, 725 F.3d 1184, 1188 (9th Cir. 2013), a panel of the Ninth Circuit acknowledged
that “Graham broke new ground” in applying the Eighth Amendment to a single criminal
conviction resulting in a single life-without-parole sentence. Undeterred by that fact, the panel
proceeded to extend Graham to a case involving a juvenile defendant who was convicted of
twenty-four felonies (none individually resulting in a life sentence) involving sexual attacks on
four women over a five-week period.
These crimes, committed while the defendant was armed with a firearm, included “nine
counts of forcible rape, seven counts of forcible oral copulation, two counts of attempted second
degree robbery, two counts of second degree robbery, forcible sodomy, kidnaping with the
specific intent to commit a felony sex offense, genital penetration by a foreign object,” as well as
“the unlawful driving or taking of a vehicle.” Moore, 725 F.3d at 1186. This context, the Ninth
Circuit panel contended, was “indistinguishable” from Graham. Id. 10
The full Ninth Circuit rejected en banc review of the Moore panel decision, provoking a
written dissent by seven judges. Judge O’Scannlain summarized their disagreement with the
panel decision as follows:
Our Court defies [federal habeas law] once again, this time by
failing to distinguish one ‘life without parole’ sentence from
multiple ‘term-of-years’ sentences. A panel of this Court holds
that Graham . . . invalidates the latter, ignoring the contrary
holding of the Sixth Circuit, disregarding the views of state courts
across the country, and flouting Graham’s text and reasoning.
10
In doing so, the Ninth Circuit panel reversed the opposite holding of the district court,
Moore v. Biter, No. CV 11-4256, 2011 U.S. Dist. LEXIS 71438 (C.D. Cal. July 1, 2011), as well
as rulings of the California Superior Court, California Court of Appeal, and California Supreme
Court, which had each rejected related state habeas petitions. See Moore, 725 F.3d at 1187.
11
Moore v. Biter, 742 F.3d 917, 917-18 (9th Cir. 2014) (O’Scannlain, J., dissenting) (footnote
omitted), denying reh’g en banc to 725 F.3d 1184 (9th Cir. 2013). The panel decision, Judge
O’Scannlain noted, failed to
confront the most meaningful distinction between Moore’s case
and Graham: Moore’s term of imprisonment is composed of over
two dozen separate sentences, none longer than eight years;
Graham’s is one sentence, “life without parole.” Because the
Supreme Court explicitly stated that Graham concerned “only
those juvenile offenders sentenced to life without parole solely for
a nonhomicide offense,” 560 U.S. at 62, it “did not clearly
establish that consecutive, fixed-term sentences for juveniles who
commit multiple nonhomicide offenses are unconstitutional when
they amount to the practical equivalent of life without parole,”
Bunch, 685 F.3d at 550.
Id. at 919. The dissent also contested the suggestion that the rationale of Graham, if not its
holding, applied to situations other than a life-without-parole sentence. “Graham’s reasoning,”
Judge O’Scannlain observed, “makes clear that the Supreme Court did not squarely address
aggregate term-of-years sentences.” Id.
Finally, Judge O’Scannlain raised a number of questions — wholly unexamined in
Graham — that would need to be answered if the holding of Graham were extended to aggregate
term-of-years sentences:
“At what number of years would the Eighth Amendment become
implicated in the sentencing of a juvenile: twenty, thirty, forty,
fifty, some lesser or greater number? . . . Could the number [of
years] vary from offender to offender based on race, gender,
socioeconomic class or other criteria? Does the number of crimes
matter?” . . . Also, “What if the aggregate sentences are from
different cases? From different circuits? From different
jurisdictions? If from different jurisdictions, which jurisdiction
must modify its sentence or sentences to avoid constitutional
infirmity?”
12
Id. at 922 (citations omitted). We asked similar questions to Vasquez’s counsel during oral
argument in this case. With commendable candor, counsel conceded that no clear answers could
be reliably given. See Oral Argument Audio 11:06 to 11:15; id. 12:32 to 12:40.
With nothing more to rely on than Graham, we believe that attempting to answer these
questions (particularly with the level of specificity necessary for a principled application of
Eighth Amendment law) would require a proactive exercise inconsistent with our commitment to
traditional principles of judicial restraint. We thus agree with the Sixth Circuit, the Fifth Circuit,
and the seven dissenters of the Ninth Circuit: Graham does not apply to aggregate term-of-years
sentences involving multiple crimes, and we should not declare that it does. For this reason, we
reject the argument of Vasquez and Valentin that their sentences violate the Cruel and Unusual
Punishment Clause of the Eighth Amendment.
Our holding, however, should not be read to signal the end of debate on the underlying
issues raised by aggregate term-of-years sentences imposed upon juveniles. In life-without-
parole cases governed by Graham, “[i]t is for the State, in the first instance, to explore the means
and mechanisms for compliance.” Graham, 560 U.S. at 75. Equally so, in cases like those now
before us where Graham does not apply, the Commonwealth — through the lawmaking power of
the General Assembly — has the opportunity to explore additional ways of calibrating the just
aims of the criminal justice system to the unique circumstances of juvenile offenders, particularly
in cases in which juveniles commit nonviolent crimes and demonstrate a level of genuine
contrition suggesting a realistic hope of rehabilitation.
Our holding implies no views and takes no sides in the policy debates that may take place
during the legislative process. As we have often said, the legislature is the “author of public
policy.” In re Woodley, 290 Va. 482, 490, 777 S.E.2d 560, 565 (2015) (citation omitted). Our
13
role is limited to answering the narrow question raised by these cases: whether the aggregate
term-of-years sentences imposed on Vasquez and Valentin violate the Eighth Amendment.
Because they do not, our judicial task is over and the democratic process continues.
B. SUFFICIENCY OF THE EVIDENCE — POSSESSION OF A DEADLY WEAPON
The trial court convicted Vasquez and Valentin of breaking and entering with intent to
commit larceny while “armed with a deadly weapon at the time of entry,” in violation of Code
§ 18.2-91. 11 On appeal, neither defendant denies that a knife in this factual context constitutes a
deadly weapon. Instead, they argue only that the evidence was insufficient to prove beyond a
reasonable doubt that either one of them possessed a knife at the time of their entry into the
victim’s townhouse.
1.
As noted earlier, we review the evidence at trial in the light most favorable to the
prevailing party. Here, that principle requires us to “discard the evidence of the accused in
conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to
the Commonwealth and all fair inferences to be drawn therefrom.” Bowman, 290 Va. at 494,
777 S.E.2d at 853 (citation omitted). Additionally, our appellate review “is not limited to the
evidence mentioned by a party in trial argument or by the trial court in its ruling.” Id. at 494 n.1,
777 S.E.2d at 853 n.1 (quoting Perry v. Commonwealth, 280 Va. 572, 580, 701 S.E.2d 431, 436
(2010)). “Instead, ‘an appellate court must consider all the evidence admitted at trial that is
contained in the record,’” not limiting itself to “merely the evidence that the reviewing court
considers most trustworthy.” Id. (quoting Commonwealth v. Jenkins, 255 Va. 516, 522,
499 S.E.2d 263, 266 (1998)).
11
The “armed with a deadly weapon” element of the crime, Code § 18.2-91, makes it a
Class 2 felony, id. § 18.2-10(b).
14
At trial, an investigating officer testified that each defendant admitted to carrying a
backpack into the townhouse. During questioning, Valentin initially denied having a knife but
then conceded having a “hunting knife” in one of the bags. J.A. at 305. Valentin admitted
possessing the knife at the time of entry but claimed that it was not the one later used during the
crimes. One of the black bags found in Valentin’s possession after his arrest had two knives in
it, and one was “a knife with a wolf head on it.” Id. at 403. No evidence suggested that the
“wolf knife” was owned by the victim or her housemates. See id. at 403-04. The officer also
testified that both defendants admitted during questioning to being in “possession” of both
backpacks. Id.
Another investigating officer testified about his interview with Vasquez. During that
interview, Vasquez admitted to carrying “a little knife when he entered the residence.” Id. at
353. He kept the knife in his jacket, Vasquez stated. Later in this testimony, the officer added
that Vasquez also stated that he “found” the knife “when [he] went in” the victim’s townhouse.
Id. at 370. It was not clear, the officer noted, whether Vasquez meant “right outside or inside,”
but it was clear that Vasquez was saying the knife was found “as they were entering” the
townhouse. Id. at 401.
Claiming that this evidence was internally inconsistent, the defendants contend that the
Commonwealth did not exclude “an alternative hypothesis of innocence” that both defendants
armed themselves with knives only after entering the townhouse. Vasquez’s Opening Br. at 19.
For several reasons, we disagree.
2.
Under the governing standard of review, “we review factfinding with the highest degree
of appellate deference.” Bowman, 290 Va. at 496, 777 S.E.2d at 854. In a criminal case
15
appealed on sufficiency grounds, “[a]n appellate court does not ‘ask itself whether it believes
that the evidence at the trial established guilt beyond a reasonable doubt.’” Williams v.
Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979)). “Rather, the relevant question is whether ‘any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Id. (citation omitted). 12 This deferential appellate standard “applies not only to findings
of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from
the facts proved.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63-64 (2010).
These principles apply “with equal force” to bench trials no differently than to jury trials. See
Cobb v. Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929).
A rational factfinder could easily conclude from the evidence in this case, as the trial
court did, that Vasquez and Valentin acted in concert during the break-in of the victim’s
townhouse. See, e.g., J.A. at 478-79. Valentin’s admitted possession of the “wolf knife” at that
time, in one of the two backpacks used by the defendants, constitutes ample evidence of joint
possession of a knife at the time of entry. See Thomas v. Commonwealth, 279 Va. 131, 159,
688 S.E.2d 220, 236 (2010) (noting that “the law is well settled in Virginia that each co-actor is
responsible for the acts of the others” (quoting Carter v. Commonwealth, 232 Va. 122, 126,
348 S.E.2d 265, 267-68 (1986)). Equally relevant is Vasquez’s statement that he also had a
“little knife” in his jacket at the time of the break-in. J.A. at 353. Together, this evidence
12
See also 7 Wayne R. LaFave et al., Criminal Procedure § 27.5(e), at 123 (4th ed. 2015)
(“Appeals of guilty verdicts by juries and guilty findings by judges based on insufficiency of
evidence are evaluated by asking, ‘whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential elements
beyond a reasonable doubt.’” (quoting Jackson, 443 U.S. at 319)); accord 6 id. § 24.6(b), at 572;
id. § 24.6(c), at 578-79.
16
supports the trial court’s finding of fact that at least one of the defendants possessed a deadly
weapon at the time of their entry into the victim’s townhouse.
3.
Despite this evidence, Vasquez and Valentin nonetheless contend that a reasonable
hypothesis of innocence still exists. It is plausible, they insist, that they did not possess any
knives until after the entry, suggesting that they took knives from one of the housemate’s
bedrooms in the townhouse. We find this argument conceptually redundant.
Properly understood, the reasonable-hypothesis principle is not a discrete rule unto itself.
“The statement that circumstantial evidence must exclude every reasonable theory of innocence
is simply another way of stating that the Commonwealth has the burden of proof beyond a
reasonable doubt.” Hudson, 265 Va. at 513, 578 S.E.2d at 785. Thus, the principle “does not
add to the burden of proof placed upon the Commonwealth in a criminal case.” Id. It merely
echoes “the standard applicable to every criminal case.” Cook v. Commonwealth, 226 Va. 427,
433, 309 S.E.2d 325, 329 (1983); see also Pease v. Commonwealth, 39 Va. App. 342, 360, 573
S.E.2d 272, 280 (2002) (en banc), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003) (per curiam)
(adopting the opinion of the Court of Appeals).
It is true that a factfinder cannot “arbitrarily” choose, as between two equally plausible
interpretations of a fact, one that incriminates the defendant. Dixon v. Commonwealth, 162 Va.
798, 803, 173 S.E. 521, 523 (1934) (citation omitted). The choice becomes arbitrary, however,
only when no rational factfinder could believe the incriminating interpretation of the evidence
and disbelieve the exculpatory one. See Williams v. Commonwealth, 193 Va. 764, 772,
71 S.E.2d 73, 77 (1952) (observing that the Dixon principle does not apply if the exculpatory
17
explanation is “untenable under all the facts and circumstances of the case”). 13 When examining
an alternate hypothesis of innocence, the question is not whether “some evidence” supports the
hypothesis, but whether a rational factfinder could have found that the incriminating evidence
renders the hypothesis of innocence unreasonable. Hudson, 265 Va. at 513, 578 S.E.2d at 785.
In this case, it was far from arbitrary for the trial court, sitting as factfinder, to believe the
incriminating statements made by Vasquez and Valentin about their possession of the “wolf
knife” and the “little knife” at the time of the break-in. We acknowledge that the investigator’s
testimony appeared to describe differing statements by Vasquez as to the exact timing of the
possession of the “little knife.” A factfinder, however, could rationally believe the incriminating
statement by Vasquez and disbelieve his later, self-serving clarification. When considering the
statements of a suspect, a factfinder “may believe them in whole or in part, as reason may
decide.” Durham v. Commonwealth, 214 Va. 166, 169, 198 S.E.2d 603, 606 (1973). 14
III.
In sum, we find no basis for declaring the aggregate sentences imposed on Vasquez and
Valentin to be cruel and unusual under the Eighth Amendment. Nothing in Graham dictates that
13
Stated another way, “[m]erely because [the] defendant’s theory of the case differs from
that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with
his innocence has not been excluded.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d
22, 27 (1964). In practical terms, this means that — even if “not inherently incredible” — a
defendant’s exculpatory version of events need not be accepted by the factfinder. Montgomery
v. Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980) (emphasis omitted).
14
We acknowledge Vasquez’s argument that it was the investigator, not Vasquez, who
gave inconsistent statements. In the light most favorable to the Commonwealth, however, the
trial court could instead conclude that Vasquez gave differing statements to the investigator at
different times during the interview. But even if the investigator’s testimony were internally
inconsistent, that fact would not, by itself, necessarily preclude the trial court from finding the
investigator’s first recollection more reliable than his later one. See Barrett v. Commonwealth,
231 Va. 102, 107, 341 S.E.2d 190, 193 (1986) (stating that factfinders are “not required to
accept, in toto, either the theory of the Commonwealth or that of an accused. They have the right
to reject that part of the evidence believed by them to be untrue and to accept that found by them
to be true.” (citation omitted)).
18
multiple sentences involving multiple crimes be treated, for Eighth Amendment purposes, in
exactly the same manner as a single life-without-parole sentence for a single crime.
We also find the evidence sufficient to prove beyond a reasonable doubt that either or
both Vasquez and Valentin possessed a deadly weapon when they entered the victim’s
townhouse on the night of the crimes. The Court of Appeals, therefore, did not err in denying
their petitions for appeal on this ground.
Affirmed.
JUSTICE MIMS, with whom JUSTICE GOODWYN joins, concurring.
I concur with the majority’s conclusion that the sentences imposed on Vasquez and
Valentin do not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.
The sentencing record demonstrates that these crimes were the culmination of a series of planned
burglaries and escalating violations of the law. Indeed, the incident was itself a series of
depraved personal attacks, during the course of which there were multiple opportunities to
withdraw. Further, Vasquez, in particular, has failed to take advantage of the opportunities
previously afforded him by the juvenile justice system. For these reasons, the sentences are
wholly appropriate for crimes as wantonly evil as those recited in the majority opinion.
I write separately because I respectfully disagree with the Court’s conclusion that
Graham v. Florida, 560 U.S. 48 (2010), does not apply when determining the constitutionality of
those sentences. I believe that Graham’s prohibition on sentences of life without parole for
juveniles who commit non-homicide offenses does apply to a term-of-years sentence that
19
constitutes a de facto life sentence imposed in a single sentencing event. 1 Nonetheless, our
precedent precludes reversing the Court of Appeals even after applying Graham. In Angel v.
Commonwealth, 281 Va. 248, 704 S.E.2d 386 (2011), this Court held that Virginia’s geriatric
release statute provides the requisite meaningful opportunity for release based on demonstrated
maturity and rehabilitation that Graham requires. Vasquez and Valentin will be eligible for such
release.
Citing as authority a per curiam opinion from a panel of the Fifth Circuit, a decision by a
panel of the Sixth Circuit, and an opinion endorsed by a minority of judges on the Ninth Circuit
(as well as lower state court rulings, most unpublished), the majority asserts that Graham is
limited to instances when a juvenile defendant is sentenced to the specific sentence of “life
without parole,” and does not apply when a juvenile defendant is sentenced to a term of years
that is a de facto life sentence, such as the 133 years without parole to which Vasquez was
sentenced. Along with the Ninth Circuit, and five state courts of last resort that have examined
the applicability of Graham to a term of years equivalent to a de facto life sentence without the
possibility of parole, I disagree.
In Graham, the United States Supreme Court stated, “The present case involves an issue
the Court has not considered previously: a categorical challenge to a term-of-years sentence.”
Graham, 560 U.S. at 61 (emphasis added). It is true that the Court considered only the sentence
before it – a sentence of life without the possibility of parole for a single non-homicide crime.
However, the Court’s rationale applies equally to a de facto life sentence because “there are no
1
A de facto life sentence is only one in which there is no question that the individual will
not be released during his lifetime, not merely one in excess of an actuarial estimate of an
individual’s lifespan. As parole has been abolished in Virginia, any sentence that is clearly in
excess of a juvenile’s life expectancy will result in that juvenile having to serve the remainder of
his or her life in prison without the possibility of parole.
20
constitutionally significant distinguishable facts between” the two. Moore v. Biter, 725 F.3d
1184, 1191-93 (9th Cir. 2013). The Supreme Courts of Florida, Indiana, Wyoming, California
and Iowa agree. 2
In four recent cases, the Supreme Court has elaborated on what types of punishment are
proportional, and therefore constitutional, for juvenile offenders. In Roper v. Simmons, 543 U.S.
551, 560 (2005) (internal quotation marks and citation omitted), the Court affirmed “the basic
precept of justice that punishment of a crime should be graduated and proportional to the
offense.” It then prohibited imposition of the death penalty for juveniles for three reasons: first,
juveniles have a “lack of maturity and an underdeveloped sense of responsibility” that “often
result[s] in impetuous and ill-considered actions and decisions;” second, “juveniles are more
vulnerable or susceptible to negative influences and outside pressures, including peer pressure”
and often unable to extricate themselves from criminogenic settings; and third, “the character of
juveniles is not as well formed as that of an adult. The personality traits of juveniles are more
transitory, less fixed.” Id. at 569-70 (internal quotation marks and citations omitted). Thus,
Roper concluded that the harshest penalty – death – violates the proportionality principle
2
Henry v. State, 175 So. 3d 675, 679-80 (Fla. 2015) (holding that “that the constitutional
prohibition against cruel and unusual punishment under Graham is implicated when a juvenile
non-homicide offender’s sentence does not afford any meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation”) (internal quotation marks and citation
omitted); Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (observing that “[s]imilar to a life without
parole sentence, Brown’s 150 year sentence ‘forswears altogether the rehabilitative ideal,’” and
violates Graham) (quoting Graham, 560 U.S. at 74); Bear Cloud v. State, 334 P.3d 132, 141-42
(Wyo. 2014) (finding aggregate sentences that result in the functional equivalent of life without
parole are subject to Miller and Graham); People v. Caballero, 282 P.3d 291, 294-95 (Cal. 2012)
(concluding that “sentencing a juvenile offender for a nonhomicide offense to a term of years
with a parole eligibility date that falls outside the juvenile offender’s natural life expectancy
constitutes cruel and unusual punishment in violation of the Eighth Amendment” because it
implicates the same concerns expressed in Graham); see also State v. Null, 836 N.W.2d 41, 71
(Iowa 2013) (holding that “while a minimum of 52.5 years imprisonment is not technically a life-
without-parole sentence, such a lengthy sentence imposed on a juvenile is sufficient to
trigger Miller-type protections”).
21
intrinsic in the Eighth Amendment’s prohibition on cruel and unusual punishment as applied to
any juvenile offender. Id. at 573-74.
Six years later, in Graham, the Court relied upon Roper’s rationale that “because
juveniles have lessened culpability they are less deserving of the most severe punishments” to
declare that the Eighth Amendment of the Constitution
prohibits the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide. A State need not
guarantee the offender eventual release, but if it imposes a
sentence of life it must provide him or her with some realistic
opportunity to obtain release before the end of that term.
Graham, 560 U.S. at 68, 82.
The Court in Graham explained that a sentence of life in prison without parole for a
juvenile non-homicide offender also violates the proportionality principle because it is the
second harshest penalty the law can impose, but such offenders are less culpable by virtue of
their age-related characteristics, and also have a greater potential for rehabilitation. Id. at 69-71.
The Court noted that life in prison without the possibility of parole for juvenile non-homicide
offenders fails to further any legitimate penological goal – retribution, deterrence, incapacitation
or rehabilitation – and is, therefore, disproportionate and unconstitutional. Id. at 71-73. Graham
recognized that “[t]he Eighth Amendment does not foreclose the possibility that persons
convicted of nonhomicide crimes committed before adulthood will remain behind bars for life.”
Id. at 75. However, “[i]t does prohibit States from making the judgment at the outset that those
offenders never will be fit to reenter society.” Id. Accordingly, states must “give defendants like
Graham” – a juvenile non-homicide offender whose “sentence guarantees he will die in prison” –
“some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.” Id. at 75, 79.
22
Then, in Miller v. Alabama, 576 U.S. ___, 132 S. Ct. 2455 (2012), the Court reiterated
the constitutional differences between juvenile and adult offenders it had identified in Roper and
Graham. 132 S. Ct. at 2464-66. It held that
the Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile offenders.
. . . By making youth (and all that accompanies it) irrelevant to
imposition of that harshest prison sentence, such a scheme poses
too great a risk of disproportionate punishment.
Id. at 2469. The Court emphasized that “[m]ost fundamentally, Graham insists that youth
matters in determining the appropriateness of a lifetime of incarceration without the possibility
of parole.” Id. at 2465. It further observed that “appropriate occasions for sentencing juveniles
to this harshest possible penalty will be uncommon” due to the difficulty of distinguishing
“between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable corruption.” Id.
Finally, in Montgomery v. Louisiana, the Court considered “whether Miller adopts a new
substantive rule that applies retroactively on collateral review to people condemned as juveniles
to die in prison.” 577 U.S. ___ (slip op. at 4-5) (2015) (emphasis added). Though Montgomery
himself challenged an explicit life sentence, neither the parties nor the Court saw that label as the
relevant constitutional factor – rather, it was the fact that Montgomery, at the age of 17, was
subject to a punishment that ensured he would spend the rest of his life behind bars. Throughout,
the Court characterized a disproportionate sentence as one that “condemn[s] [the juvenile] to die
in prison,” results in “a lifetime in prison,” or one in which the prisoner “spen[ds] each day . . .
knowing he [is] condemned to die in prison” and deprived of “hope for some years of life outside
prison walls.” Id. at ___ (slip op. at 3, 17, 21, 22). Each of these characterizations applies with
equal force to a de facto life sentence. Additionally, the Court observed that “Miller . . .
established that the penological justifications for life without parole collapse in light of the
23
distinctive attributes of youth.” Id. at ___ (slip op. at 16) (quotation marks and citation omitted).
The Court concluded that Miller applies retroactively because it announced a substantive
constitutional right:
Miller, then, did more than require a sentencer to consider a
juvenile offender’s youth before imposing life without parole . . . .
Even if a court considers a child’s age before sentencing him or her
to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects “‘unfortunate yet
transient immaturity.’”
Id. at ___ (slip op. at 16-17) (quoting Roper, 543 U.S. at 573; Graham, 560 U.S. at 68). In other
words, Miller “rendered life without parole an unconstitutional penalty for ‘a class of defendants
because of their status’ – that is, juvenile offenders whose crimes reflect the transient immaturity
of youth.” Id. at ___ (slip op. at 17) (citation omitted). As with Graham and Miller, this
rationale applies with equal force to de facto life sentences.
When imposing either an explicit or de facto life sentence, a court is condemning the
juvenile to life in prison. In both scenarios, according to the United States Supreme Court, the
lack of penological justifications renders the punishment disproportionate. In light of the
concerns expressed in Roper, Graham concluded that the Eighth Amendment “prohibit[s] States
from making the judgment at the outset that [juvenile non-homicide] offenders never will be fit
to reenter society.” Graham, 560 U.S at 75. However, when a court sentences a juvenile to a
term-of-years sentence in excess of his life expectancy, it does just that.
The Court’s holdings in Miller and Montgomery support the conclusion that any
distinction between explicit and de facto life sentences without parole is one without a
difference. The Miller Court explained that “[m]ost fundamentally, Graham insists that youth
matters in determining the appropriateness of a lifetime of incarceration without the possibility
of parole.” Miller, 132 S. Ct. at 2465. It did not limit Graham’s application to the
24
appropriateness of life sentences without parole, but instead spoke to any sentence which results
in a juvenile spending his entire life in prison. We cannot ignore the reality that a seventeen
year-old sentenced to life without parole (Graham) and a sixteen year-old sentenced to a term of
years beyond his lifetime (Vasquez) have effectively received the same sentence. Because both
sentences deny the juvenile the chance to return to society, Graham applies to both sentences.
Graham required only that the state provide some meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation; it did not indicate when such an
opportunity must be provided or give guidance regarding its nature or structure. Rather, it left it
to the states to determine the “means and mechanisms for compliance.” Graham, 560 U.S. at 75.
In Montgomery, the Court discussed the distinction between “a procedural requirement
necessary to implement a substantive guarantee [and] a rule that regulates only the manner of
determining the defendant’s culpability.” 577 U.S. ___ (slip op. at 18). The Court explained
that “when a new substantive rule of constitutional law is established, this Court is careful to
limit the scope of any attendant procedural requirement to avoid intruding more than necessary
upon the States’ sovereign administration of their criminal justice systems.” Montgomery 577
U.S. ___ (slip op. at 19); see also Ford v. Wainwright, 477 U.S. 399, 416-17 (1986) (explaining
that the Supreme Court “leave[s] to the State[s] the task of developing appropriate ways to
enforce the constitutional restriction upon [their] execution of sentences.”). Here, the
“substantive nature of the federal right at issue,” Montgomery, 577 U.S. ___ (slip op. at 20), is
for a juvenile sentenced to a lifetime in prison for a nonhomicide crime to have “a meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560
U.S. at 75.
25
In Angel, 281 Va. at 275, 704 S.E.2d at 402, we held that geriatric release pursuant to
Code § 53.1-40.01 is an appropriate statutory mechanism to provide that opportunity. 3 The
statute provides an age-based review according to normal parole considerations including the
individual’s personal, social and criminal history, his conduct in prison including engagement in
rehabilitative and vocational programs, the sentence and type of offense, changes in motivation,
and results of psychological testing. Virginia Parole Board, Policy Manual 2-4 (2006). These
considerations certainly allow the Board to consider age, maturity and rehabilitation as Graham
instructs.
I note, though, that whether the geriatric release statute as applied will continue to
provide the “meaningful opportunity for release” required by Graham is subject to debate.
Statistics describing the frequency with which geriatric release has been granted post-Angel are
troubling: less than 4% of the eligible offenders who applied for geriatric release have received
early release. See Virginia Dep’t of Corr., FY2014 Geriatric Offenders Within the SR
Population 7 (Sept. 2015), https://vadoc.virginia.gov/about/facts/research/ Geriatric2015.pdf (last
visited Feb. 5, 2016) (7 of the 207 applicants received geriatric release); Virginia Dep’t of Corr.,
Geriatric Offenders Within the SR Population 7 (July 2014),
https://vadoc.virginia.gov/about/facts/research/Geriatric2014.pdf (last visited Feb. 5, 2016) (11
of the 212 applicants received geriatric release); Virginia Dep’t of Corr., Geriatric Offenders
Within the SR Population 7 (August 2012), http://vadoc.virginia.gov/about/facts/
3
Code § 53.1-40.01 provides that
Any person serving a sentence imposed upon a conviction for a felony offense,
other than a Class 1 felony, (i) who has reached the age of sixty-five or older and
who has served at least five years of the sentence imposed or (ii) who has reached
the age of sixty or older and who has served at least ten years of the sentence
imposed may petition the Parole Board for conditional release. The Parole Board
shall promulgate regulations to implement the provisions of this section.
26
research/geriatric/fy2011-geriatric-report.pdf (last visited Feb. 5, 2016) (3 of the 129 applicants
received geriatric release). If these trends continue as juvenile offenders become eligible for
geriatric release, it may become increasingly difficult to maintain that geriatric release as applied
truly provides a “meaningful opportunity” for release. 4 However, we are not required to
squarely address that question and the continuing vitality of Angel today because these
defendants have not been denied geriatric release.
The General Assembly, which is the appropriate body to establish mechanisms for
responding to Graham and its progeny, would be prudent to examine carefully the procedures
currently governing juvenile sentencing and geriatric release in Virginia. The majority is correct
to note the need for the General Assembly “to explore additional ways of calibrating the just
aims of the criminal justice system to the unique circumstances of juvenile offenders.” Ante at
13. Such mechanisms might include periodic sentence reviews for all prisoners whose offenses
were committed as juveniles, see Cal. Penal Code §§ 1170(d)(2), 3051, or reinstating parole
eligibility for juvenile offenders after a term of years, see Wyo. Stat. Ann. § 6-10-301(c).
In conclusion, I would hold that Graham’s mandate prohibiting life sentences without
parole for juvenile non-homicide offenders applies equally to de facto life sentences. However,
because Virginia’s geriatric release statute, if applied as written, is capable of providing juveniles
with such sentences a meaningful opportunity for release as mandated by Graham, and review of
its application to offenders sentenced as juveniles is not yet ripe, I concur in the Court’s
4
The geriatric release program was not implemented until 1994. See 1994 Acts (Sp.
Sess. II) 1, 2 (enacting Code § 53.1-40.01). A hypothetical 17-year old sentenced to a life
sentence or a de facto life sentence in 1995 will not be eligible for geriatric release until 2038.
Moreover, inmates who committed their crimes before January 1, 1995 are still eligible for
traditional parole. See Code §§ 53.1-151, 53.1-165.1. Accordingly, a number of inmates, who
would be eligible for geriatric release, obtain release through traditional parole instead.
27
determination that his sentence does not violate the Eighth Amendment of the United States
Constitution.
28