PRESENT: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ., 

and Carrico and Russell, S.JJ. 

DWAYNE JAMAR BROWN 

 OPINION BY 

v. Record No. 090161 JUSTICE S. BERNARD GOODWYN 

 January 15, 2010 

COMMONWEALTH OF VIRGINIA 

DEMETRIOUS OMAR BROWN

v. Record No. 090201 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In these appeals, we consider whether a juvenile who has 

been tried as an adult and found guilty of a crime that has a 

mandatory minimum sentence may be sentenced to a juvenile 

disposition, pursuant to Code § 16.1-272, rather than the 

mandatory minimum sentence. As a preliminary matter, we also 

consider whether the Commonwealth properly preserved its bases 

for appeal as required by Rule 5A:18. 

Relevant Facts and Proceedings

 When Demetrious Omar Brown (Demetrious) was sixteen and 

his cousin Dwayne Jamar Brown (Dwayne) was fifteen, they 

participated in the armed robbery of a group of people who had 

gathered in an apartment to play cards. Demetrious and Dwayne 

both waived their rights to a preliminary hearing in the 

juvenile and domestic relations district court under Code 
§ 16.1-270, and were certified for trial as adults under Code 

§ 16.1-269.1. In the circuit court, Demetrious and Dwayne pled 

guilty to numerous charges, including five counts of use of a 

firearm in the commission of a felony in violation of Code 

§ 18.2-53.1.1

Demetrious’ Sentencing Hearing

 The Circuit Court of Bedford County held Demetrious’ 

sentencing hearing on March 25, 2008. Demetrious’ counsel 

argued for Demetrious to receive a juvenile disposition on the 

five convictions for use of a firearm in the commission of a 

felony. The Commonwealth argued that Demetrious’ five 

convictions for use of a firearm required the circuit court to 

impose the mandatory minimum sentence set forth for each in the 

use of a firearm statute, Code § 18.2-53.1. 

 The Commonwealth argued that under Bullock v. 

Commonwealth, 48 Va. App. 359, 375-77, 631 S.E.2d 334, 342-43 

(2006), a trial court’s broad discretion over juvenile 

sentences in Code § 16.1-272 did not override the mandatory 

minimum sentences required by Code § 18.2-53.1. The 

Commonwealth stated to the circuit court that in Bullock, 

the Court did deal with the situation where there was 

a request for a juvenile disposition . . . and there 

was a conflict in the statutes as to whether [or] not 

 1

 Each defendant also pled guilty to burglary with intent 

to commit robbery, discharge a firearm in an occupied dwelling, 

and eleven counts of robbery. 

2
the broad discretion in the juvenile sentencing 

statute could override the mandatory provisions of 

the Use of Firearm statute. The Court of Appeals 

[held] that it could not, in fact, override that. 

 The circuit court responded by taking a recess to review 

Bullock. Thereafter, the Commonwealth reiterated that it was 

“relying on Bullock.” 

 The circuit court held that Bullock prevented the circuit 

court from imposing a juvenile disposition on a use of a 

firearm charge under Code § 16.1-272(A)(1), but that the court 

could impose a juvenile disposition pursuant to Code § 16.1-

272(A)(2). As his sentence on the use of a firearm in the 

commission of a felony charges, the circuit court ordered 

Demetrious committed to the Department of Juvenile Justice 

until his twentieth birthday. See Code § 16.1-285.1. The 

circuit court imposed adult time sentences for the remaining 

offenses, with all sentences to run concurrently, for a total 

period of incarceration of twenty-five years, and suspended 

that adult time. 

Dwayne’s Sentencing Hearing

 The Circuit Court of Bedford County held Dwayne’s 

sentencing hearing on April 4, 2008. Dwayne’s counsel argued 

for Dwayne to receive a juvenile disposition on the five 

convictions for use of a firearm in the commission of a felony. 

The Commonwealth recommended that Dwayne receive the mandatory 

3
minimum sentence for each of the five convictions for use of a 

firearm in the commission of a felony. However, the 

Commonwealth also stated, “Obviously the Court has discretion 

to treat [Dwayne] as a juvenile, treat him as an adult or to 

come up with a split disposition in the case, sentence him to a 

juvenile facility until he’s eighteen and then transfer him to 

an adult facility.” Acknowledging that the circuit court 

sentenced Demetrious as a juvenile, the Commonwealth noted 

Dwayne’s more extensive prior record and stated, “I really see 

nothing to be gained by treating Dwayne Brown as a juvenile in 

this case.” The prosecutor did not mention the Bullock

decision or the reasoning stated therein. 

 The circuit court classified Dwayne’s convictions for use 

of a firearm in the commission of a felony as “non-violent 

juvenile felonies,” imposed a juvenile disposition for those 

convictions under Code § 16.1-272(A)(2) and committed Dwayne to 

the Department of Juvenile Justice until his eighteenth 

birthday. As to the remaining convictions, the judge gave 

Dwayne “a sentence of 25 years in the penitentiary, suspended 

after the service of 24 months in jail,” commencing on his 

eighteenth birthday. 

Commonwealth’s Appeal

 The Court of Appeals granted the Commonwealth’s appeal as 

to the sentences imposed upon Demetrious and Dwayne for the 

4
convictions of use of a firearm in the commission of a felony. 

Upon a motion by the Commonwealth, the two cases were 

consolidated. Both defendants claimed that the Commonwealth 

had failed to properly preserve for appeal, as required by Rule 

5A:18, its argument that the circuit court did not have the 

discretion to sentence the defendants to juvenile dispositions 

on the use of a firearm charges. In an unpublished opinion, 

the Court of Appeals held that the Commonwealth had complied 

with Rule 5A:18 in both cases, and that the circuit court erred 

when it imposed juvenile dispositions upon Demetrious and 

Dwayne instead of the mandatory minimum sentences prescribed in 

Code § 18.2-53.1. The Court of Appeals vacated the sentences 

imposed for each defendant’s convictions and remanded the 

proceedings against each defendant for resentencing consistent 

with its opinion. Commonwealth v. Brown, Record Nos. 0919-08-

3, 0920-08-3 (Nov. 25, 2008). 

Analysis

A. Rule 5A:18

 On appeal to this Court, both Demetrious and Dwayne argue 

that the Commonwealth failed to preserve for appeal, as 

required by Rule 5A:18, its argument that the circuit court did 

not have the discretion to sentence the defendants to juvenile 

dispositions on their convictions for use of a firearm in the 

commission of a felony. They claim that the Court of Appeals 

5
erred in holding that the Commonwealth satisfied the 

requirements of Rule 5A:18.2 Because these appeals involve two 

separate sentencing hearings, we will separately analyze the 

relevant issues.

1. Demetrious Brown v. Commonwealth

 Demetrious contends that under Rule 5A:18 the Commonwealth 

did not preserve the sentencing issue for appeal because the 

Commonwealth did not object to the court’s imposition of a 

juvenile disposition upon Demetrious. The Commonwealth 

responds that it satisfied Rule 5A:18 by making the circuit 

court aware of its position on mandatory sentencing. The 

Commonwealth contends that it argued consistently that Code 

§ 18.2-53.1 and Bullock required the circuit court to impose 

the mandatory minimum sentences specified in Code § 18.2-53.1 

and limited the circuit court’s ability to sentence Demetrious 

as a juvenile. We agree with the Commonwealth. 

As a question of law, the interpretation of Rule 5A:18 

requires de novo review. Jay v. Commonwealth, 275 Va. 510, 

517, 659 S.E.2d 311, 315 (2008) (applying de novo review to an 

 2

 The Commonwealth was the appellant in the Court of 

Appeals and, upon our review, must be held to the requirement 

that “[n]o ruling of the trial court . . . will be considered 

as a basis for reversal unless the objection was stated 

together with the grounds therefor at the time of the ruling 

. . . .” Rule 5A:18. Cf. Whitehead v. Commonwealth, 278 Va. 

105, 114-15, 677 S.E.2d 265, 270 (2009), in which case the 

Commonwealth was the appellee. 

6
interpretation of Rule 5A:20). Rule 5A:18 requires a litigant 

to make timely and specific objections, so that the trial court 

has “an opportunity to rule intelligently on the issues 

presented, thus avoiding unnecessary appeals and reversals.” 

West v. Commonwealth, 43 Va. App. 327, 337, 597 S.E.2d 274, 278 

(2004). The Court of Appeals has held that a litigant may 

satisfy Rule 5A:18 in multiple ways. Lee v. Lee, 12 Va. App. 

512, 515, 404 S.E.2d 736, 738 (1991). Moreover, in reference 

to Rule 5A:18’s Supreme Court Rule counterpart, Rule 5:25, this 

Court recently stated that Code § 8.01-384 controls our 

interpretation of the rule. Helms v. Manspile, 277 Va. 1, 7, 

671 S.E.2d 127, 130 (2009). Code § 8.01-384(A) should likewise 

inform an interpretation of Rule 5A:18. 

Code § 8.01-384(A) provides as follows: 

Formal exceptions to rulings or orders of the court 

shall be unnecessary; . . . it shall be sufficient 

that a party, at the time the ruling or order of the 

court is made or sought, makes known to the court the 

action which he desires the court to take or his 

objections to the action of the court and his grounds 

therefor; . . . . Arguments made at trial via 

written pleading, memorandum, recital of objections 

in a final order, oral argument reduced to 

transcript, or agreed written statements of facts 

shall, unless expressly withdrawn or waived, be 

deemed preserved therein for assertion on appeal. 

Under Code § 8.01-384(A) and our analysis in Helms, if a trial 

court is aware of a litigant’s legal position and the litigant 

did not expressly waive such arguments, the arguments remain 

7
preserved for appeal. Helms, 277 Va. at 7, 671 S.E.2d at 129-

30. 

The Commonwealth preserved for appeal its arguments 

concerning the issue of Demetrious’ sentences because the 

Commonwealth made the circuit court aware of its position. At 

Demetrious’ sentencing hearing, the Commonwealth argued that 

the mandatory minimum sentence applied to Demetrious’ five 

convictions for use of a firearm in the commission of a felony 

because Bullock controlled the circuit court’s sentencing 

determination. The Commonwealth argued, expressly relying upon 

the Bullock decision, that the circuit court lacked discretion 

to impose a juvenile disposition under Code § 16.1-272 where a 

juvenile tried as an adult was found guilty of violating Code 

§ 18.2-53.1. Even after the circuit court took a recess to 

review Bullock, the Commonwealth reiterated that its argument 

relied on Bullock. 

The record indicates that the circuit court understood the 

Commonwealth’s position; the circuit court attempted to 

harmonize Bullock, Code § 18.2-53.1’s mandatory language and 

Code § 16.1-272’s juvenile provisions. Because the circuit 

court was aware of and had acknowledged the Commonwealth’s 

position, which the Commonwealth never expressly waived, and 

the circuit court had “an opportunity to rule intelligently on 

the issues presented,” West, 43 Va. App. at 337, 597 S.E.2d at 

8
278, the Commonwealth preserved for appeal its argument that 

the circuit court was required to impose the statutorily 

mandated sentences upon Demetrious. Accordingly, we affirm the 

Court of Appeals in holding that the Commonwealth complied with 

Rule 5A:18 in Demetrious’ case. 

2. Dwayne Brown v. Commonwealth

Dwayne likewise contends that the Commonwealth failed to 

preserve for appeal, in the manner required by Rule 5A:18, its 

argument that the circuit court lacked the discretion to 

sentence him as a juvenile pursuant to Code § 16.1-272, rather 

than in accordance with the mandatory minimum sentencing 

provisions of Code § 18.2-53.1. Dwayne argues not only that 

the Commonwealth failed to object when the circuit court 

imposed a juvenile disposition, but also that the Commonwealth 

conceded that the circuit court had the authority to sentence 

Dwayne as a juvenile. Moreover, Dwayne contends that the 

Commonwealth did not prove good cause or a miscarriage of 

justice necessary to allow the Court of Appeals to review the 

unpreserved issue concerning his sentencing. 

The Commonwealth responds by asserting that the circuit 

court was aware of the mandatory sentencing issue, in part 

because Dwayne’s sentencing shared common facts with 

Demetrious’ sentencing and took place only ten days later 

before the same judge. The Commonwealth argues that its 

9
attorney, the same attorney that prosecuted Demetrious’ case, 

did not concede the court’s authority to impose a juvenile 

disposition, but rather asked that the mandatory minimum 

sentences be imposed. 

At Dwayne’s sentencing hearing, the Commonwealth requested 

that the circuit court apply the mandatory minimum sentence, 

but it failed to argue that the circuit court did not have the 

discretion to sentence Dwayne as a juvenile. The Commonwealth 

neither referenced Bullock nor Code § 18.2-53.1 to argue that 

the circuit court was required to impose the mandatory minimum 

sentences. In fact, the Commonwealth acknowledged the circuit 

court’s discretion by stating: “Obviously the Court has 

discretion to treat [Dwayne] as a juvenile, treat him as an 

adult or to come up with a split disposition in the case, 

sentence him to a juvenile facility until he’s eighteen and 

then transfer him to an adult facility.” 

The Commonwealth cannot rely on the arguments it made 

during Demetrious’ sentencing hearing to demonstrate it 

satisfied Rule 5A:18 at Dwayne’s hearing. Though the same 

Commonwealth’s attorney prosecuted both Demetrious and Dwayne, 

Dwayne’s hearing was a separate proceeding in which he was 

represented by a different defense attorney. The Commonwealth, 

at Dwayne’s hearing, did not put the circuit court on notice of 

the Commonwealth’s argument that the circuit court did not have 

10
the discretion to impose a juvenile sentence upon Dwayne. 

Because the Commonwealth did not, during Dwayne’s proceedings 

before the circuit court, articulate an argument that the 

circuit court did not have the authority to impose a juvenile 

sentence upon Dwayne, the issue was not preserved for appeal. 

On appeal, a litigant may raise an unpreserved issue based 

on the ends of justice if the error “was ‘clear, substantial 

and material.’” West, 43 Va. App. at 338, 597 S.E.2d at 279 

(quoting Brown v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 

8, 11 (1989)); see Rule 5A:18. This Court has stated that 

Rule 5A:18, like our Rule 5:25, allows an appellate 

court to consider a matter not preserved by 

objection in the trial court “to attain the ends of 

justice.” Application of the ends of justice 

exception is appropriate when the judgment of the 

trial court was error and application of the 

exception is necessary to avoid a grave injustice or 

the denial of essential rights. 

Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433 

(2005). 

The Commonwealth has not demonstrated that Rule 5A:18’s 

ends of justice provision is applicable in this case. Because 

the Commonwealth stated to the circuit court that it 

“[o]bviously . . . has discretion to treat [Dwayne] as a 

juvenile,” we conclude that the Commonwealth has not shown that 

the circuit court committed a clear, substantial and material 

11
error, or that the ends of justice exception is necessary to 

avoid a grave injustice or the denial of essential rights. 

We hold that with respect to the appeal in the matter of 

Dwayne Brown v. Commonwealth, the Commonwealth did not comply 

with Rule 5A:18, and thus failed to preserve for appeal its 

argument that the circuit court did not have the discretion to 

sentence Dwayne as a juvenile on the use of a firearm charges. 

Therefore, we reverse the judgment of the Court of Appeals 

vacating Dwayne’s juvenile disposition for the use of a firearm 

in the commission of a felony convictions, and reinstate the 

sentence imposed by the circuit court. 

B. Code § 18.2-53.1 and Code § 16.1-272

 Demetrious argues that the Court of Appeals erred when it 

vacated and remanded the circuit court’s juvenile disposition 

for his five convictions for use of a firearm in the commission 

of a felony. Demetrious argues that the circuit court 

correctly sentenced him as a juvenile because Code § 16.1-

272(A)(2) gives the court discretion to forego the mandatory 

minimum sentences required by Code § 18.2-53.1. 

 The Commonwealth responds that the Court of Appeals 

correctly held that the circuit court erred in imposing a 

juvenile disposition under Code § 16.1-272. The Commonwealth 

argues that the Court of Appeals was correct in holding that 

the circuit court should have considered Code § 16.1-272(A)(1) 

12
instead of Code § 16.1-272(A)(2) in sentencing Demetrious and 

that the language in Code § 18.2-53.1 requires the circuit 

court to impose a mandatory minimum sentence on juveniles tried 

as adults and found guilty of use of a firearm in the 

commission of a felony. We agree with the Commonwealth. 

In determining whether the mandatory language in Code 

§ 18.2-53.1 limited the circuit court’s discretion to sentence 

Demetrious as a juvenile under Code § 16.1-272, we must first 

closely examine the relevant statutes. The statute concerning 

use or display of a firearm in committing a felony, Code 

§ 18.2-53.1, states in relevant part: 

Violation of this section shall constitute a separate 

and distinct felony and any person found guilty 

thereof shall be sentenced to a mandatory minimum 

term of imprisonment of three years for a first 

conviction, and to a mandatory minimum term of five 

years for a second or subsequent conviction under the 

provisions of this section. Such punishment shall be 

separate and apart from, and shall be made to run 

consecutively with, any punishment received for the 

commission of the primary felony. 

Code § 18.2-12.1 defines “mandatory minimum” as follows: 

“Mandatory minimum” wherever it appears in this Code 

means, for purposes of imposing punishment upon a 

person convicted of a crime, that the court shall 

impose the entire term of confinement, the full 

amount of the fine and the complete requirement of 

community service prescribed by law. The court shall 

not suspend in full or in part any punishment 

described as mandatory minimum punishment. 

13
Code § 16.1-272(A)(1)-(2), setting forth provisions relating to 

the powers of a circuit court in the trial and sentencing of 

juveniles, provides as follows: 

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 otherwise 

provided with regard to sentencing. Upon a finding of 

guilty of any charge, the court shall fix the 

sentence without the intervention of a jury. 

 1. If a juvenile is convicted of a violent 

juvenile felony, for that offense and for all 

ancillary crimes the court may order that (i) the 

juvenile serve a portion of the sentence as a serious 

juvenile offender under § 16.1-285.1 and the 

remainder of such sentence in the same manner as 

provided for adults; (ii) the juvenile serve the 

entire sentence in the same manner as provided for 

adults; or (iii) the portion of the sentence to be 

served in the same manner as provided for adults 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 

including, but not limited to, commitment under 

subdivision 14 of § 16.1-278.8 or § 16.1-285.1. 

 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 or may in its discretion impose an 

adult sentence and suspend the sentence conditioned 

upon successful completion of such terms and 

conditions as may be imposed in a juvenile court upon 

disposition of a delinquency case. 

After Demetrious, a juvenile, waived in writing the 

jurisdiction of the juvenile and domestic relations district 

14
court and his right to a preliminary hearing, the juvenile 

court transferred and certified Demetrious for criminal 

proceedings in the circuit court. See Code § 16.1-269.1; Code 

§ 16.1-270. Demetrious was indicted, tried in the same manner 

as provided for adults, and found guilty of numerous crimes, 

including five counts of use of a firearm in the commission of 

a felony. 

Code § 18.2-53.1 clearly states that any person found 

guilty of use of a firearm in the commission of a felony shall 

be sentenced to a mandatory minimum term of imprisonment. At 

the same time, however, Code § 16.1-272(A)(1) - (2) gives a 

circuit court the discretion to sentence a juvenile tried as an 

adult to a juvenile disposition rather than sentencing the 

juvenile as an adult. Thus, it appears that the provisions of 

Code § 16.1-272 and Code § 18.2-53.1 are in conflict with each 

other regarding whether a circuit court must impose an 

applicable mandatory minimum sentence upon a juvenile tried as 

an adult. 

An ordinary rule of statutory construction serves to 

resolve the conflict. “ ‘[W]hen one statute speaks to a 

subject in a general way and another deals with a part of the 

same subject in a more specific manner, the two should be 

harmonized, if possible, and where they conflict, the latter 

prevails.’ ” Thomas v. Commonwealth, 244 Va. 1, 22-23, 419 

15
S.E.2d 606, 618 (1992) (quoting Virginia Nat’l Bank v. Harris, 

220 Va. 336, 340, 257 S.E.2d 867, 870 (1979)). 

This Court in Thomas considered whether a juvenile 

convicted of capital murder by a jury should be sentenced by a 

judge pursuant to Code § 16.1-272’s juvenile provisions, or 

sentenced by a jury under the death penalty statutes. 244 Va. 

at 21, 419 S.E.2d at 617. We resolved the apparent conflict 

between the juvenile provision and the death penalty statutes 

by applying the death penalty statutes. The death penalty 

statutes were applicable because, while the statutes all dealt 

with punishing criminal offenders, the death penalty statutes 

addressed the specific crime charged. In contrast, the 

juvenile provisions in Code § 16.1-272 used general language 

applicable to a range of offenses and did not contain a set 

penalty. Id. at 22-23, 419 S.E.2d at 618.3 

In the present case, Code § 18.2-53.1 prescribes a 

specific penalty for individuals found guilty of use of a 

firearm in the commission of a felony. It requires a mandatory 

minimum of three years imprisonment for the first conviction 

and five years for subsequent convictions. Code § 16.1-272 

only contains general language on sentencing and does not set 

 3

 We nevertheless acknowledge that in Roper v. Simmons, the 

Supreme Court of the United States held that the Eighth and 

Fourteenth Amendments forbid the imposition of the death 

16
forth specific penalties. The rules of statutory construction, 

as exemplified in Thomas, require us to resolve the apparent 

conflict between Code § 18.2-53.1 and Code § 16.1-272 by 

applying Code § 18.2-53.1, which is the more specific statute 

on sentencing for the specific firearms offenses involved here. 

We hold that the Court of Appeals was correct in 

determining that the charges against Demetrious for use of a 

firearm were ancillary to his violent juvenile felony charges 

of robbery and that Code § 16.1-272(A)(1) was the proper 

subsection of the statute for the circuit court to consider in 

sentencing Demetrious. However, the result would be the same 

if the circuit court could have sentenced Demetrious pursuant 

to Code § 16.1-272(A)(2). Code § 18.2-53.1 requires any person 

convicted of that crime to serve a mandatory minimum period of 

incarceration, even if that person may be subject to sentencing 

under Code § 16.1-272.4

We conclude, therefore, that the Court of Appeals 

correctly held with respect to the appeal in the matter of 

Demetrious Brown v. Commonwealth that the circuit court erred 

 

penalty on offenders who were under age 18 when their crimes 

were committed. 543 U.S. 551, 568 (2005). 

4

 In comparison, the mandatory minimum sentence is not 

applicable when a juvenile court retains jurisdiction and a 

juvenile is tried as a juvenile because, in such an instance, 

the juvenile is adjudicated delinquent rather than found guilty 

of a specific crime. See Code § 16.1-273(A); Code § 16.1-308; 

Code § 16.1-228. 

17
when it sentenced Demetrious to a juvenile disposition under 

Code § 16.1-272 instead of imposing the mandatory minimum 

sentences required by Code § 18.2-53.1. Accordingly, we affirm 

the Court of Appeals’ judgment as it relates to Demetrious. 

Conclusion

 In summary, we will reverse the judgment of the Court of 

Appeals in Dwayne’s appeal because the Commonwealth failed to 

preserve the sentencing issue as required by Rule 5A:18, and we 

will enter final judgment affirming the judgment of the circuit 

court with respect to that case. With regard to Demetrious’ 

appeal, we will affirm the judgment of the Court of Appeals. 

 Record No. 090161 – Reversed and final judgment.

 Record No. 090201 – Affirmed.

JUSTICE KOONTZ, dissenting. 

I respectfully dissent. In my view, the Court of Appeals 

and now the majority here in these consolidated appeals have 

misconstrued the pertinent statutory scheme embodied within the 

Juvenile and Domestic Relations District Court Law, Code 

§ 16.1-226 et seq. (“juvenile law”), in which the issue of the 

“apparent conflict” between the provisions of Code § 16.1-272 

and Code § 18.2-53.1 arises. Specifically, I disagree with the 

conclusion reached by the majority that Code § 18.2-53.1 is the 

more specific of these two statutes and, therefore, the 

mandatory minimum sentencing provisions of this statute limit 

18
the circuit court’s discretion to sentence a juvenile tried as 

an adult pursuant to the sentencing alternatives provided by 

Code § 16.1-272. 

Initially, it should be noted that it is difficult to 

reconcile the patent disparity between the results occasioned 

by the majority’s decision in the appeal of Dwayne Jamar Brown 

and its decision in the appeal of Demetrious Omar Brown. That 

disparity flows from the majority’s conclusion that in the case 

of Dwayne Jamar Brown the Commonwealth failed to preserve the 

substantive issue in its appeal to the Court of Appeals as 

required by Rule 5A:18. The Court of Appeals had held that in 

both cases the Commonwealth had preserved the issue in accord 

with Rule 5A:18. I agree with that holding for the reasons 

stated by the Court of Appeals. Commonwealth v. Brown, Record 

No. 0919-08-3, slip op. at 5-8 (Nov. 25, 2008). Beyond 

question, the record establishes that the experienced and able 

circuit court judge who presided over both of these cases was 

well aware of the Commonwealth’s position that the court was 

required to apply the mandatory sentencing provisions of Code 

§ 18.2-53.1. 

Nevertheless, in the case of Dwayne Jamar Brown, I will 

not belabor the point because the majority’s reversal of the 

Court of Appeals’ holding on this procedural issue in that case 

effectively moots the substantive issue and has the practical 

19
effect of a holding that the trial court was not required to 

apply the sentencing terms of Code § 18.2-53.1 in that case. 

This result in the case of Dwayne Jamar Brown is consistent 

with my view of the substantive issue presented in both appeals 

now before this Court. Accordingly, I will confine my 

subsequent analysis to the substantive issue raised in the 

appeal of Demetrious Omar Brown (hereafter, “Demetrious”). 

It is axiomatic that with the General Assembly’s enactment 

of the juvenile law, there is an intended distinction between a 

court’s permitted imposition of a sentence of imprisonment upon 

an adult person for the violation of a criminal statute and the 

dispositional alternatives available to a court to impose a 

sentence upon a similarly situated “juvenile,” defined as “a 

person less than 18 years of age” in Code § 16.1-228. One of 

the purposes of the juvenile law is “[t]o protect the community 

against those acts of its citizens, both juveniles and adults, 

which are harmful to others and to reduce the incidence of 

delinquent behavior and to hold offenders accountable for their 

behavior.” Code § 16.1-227(4). To that end, the juvenile law 

“shall be construed liberally and as remedial in character.” 

Code § 16.1-227. 

In this context, the juvenile law draws a bright-line 

distinction between a juvenile who is fourteen years of age or 

older at the time of an alleged offense and is charged with an 

20
offense which would be a felony if committed by an adult and a 

juvenile who is less than fourteen years of age. In only the 

former circumstance, the statutory scheme permits the juvenile 

court to transfer the juvenile to the appropriate circuit court 

having criminal jurisdiction of such offenses if committed by 

an adult. Code § 16.1-269.1(A). Additionally, a juvenile 

fourteen years of age or older charged with an offense which if 

committed by an adult could be punished by confinement in a 

state correctional facility, may waive the jurisdiction of the 

juvenile court and have his case transferred to the appropriate 

circuit court. Code § 16.1-270. 

As pertinent to this appeal, the juvenile law defines a 

“[v]iolent juvenile felony” as “any of the delinquent acts 

enumerated in subsection B or C of § 16.1-269.1 when committed 

by a juvenile 14 years of age or older.” Code § 16.1-228. 

Robbery in violation of Code § 18.2-58 is a violent juvenile 

felony under Code § 16.1-269.1(C). A violation of Code § 18.2-

53.1, which penalizes as a separate felony the use or display 

of a firearm in committing a felony, is not an enumerated 

violent juvenile felony under either Code § 16.1-269.1(B) or 

(C). 

In addition to the age of the juvenile, the statutory 

scheme within the juvenile law draws a distinction between the 

type of felony offense charged against the juvenile. In a case 

21
involving a juvenile fourteen years of age or older at the time 

of the alleged offense who is charged with an offense which 

would be a felony if committed by an adult, the case may be 

transferred by the juvenile court to the appropriate circuit 

court following a transfer hearing conducted on motion of the 

attorney for the Commonwealth pursuant to Code § 16.1-269.1(A). 

In contrast, in a case involving a juvenile fourteen years of 

age or older at the time of the alleged offense who is charged 

with a violent juvenile felony, the juvenile court, upon proper 

notice by the attorney for the Commonwealth, is required to 

conduct a preliminary hearing, and, upon a finding of probable 

cause, to certify the charge, and all ancillary charges, to the 

grand jury for indictment. Code § 16.1-269.1(C) and (D). In 

either circumstance, upon indictment, subsequent trial, and 

conviction of the juvenile, the statutory scheme provides for 

the dispositional alternatives available to the circuit court. 

These dispositional alternatives are contained within the 

comprehensive provisions of Code § 16.1-272. This statute 

provides that: 

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 otherwise provided with regard to 

sentencing. Upon a finding of guilty of any 

charge, the court shall fix the sentence without 

the intervention of a jury. 

22
 1. If a juvenile is convicted of a violent 

juvenile felony, for that offense and for all 

ancillary crimes the court may order that (i) the 

juvenile serve a portion of the sentence as a 

serious juvenile offender under § 16.1-285.1 and 

the remainder of such sentence in the same manner 

as provided for adults; (ii) the juvenile serve 

the entire sentence in the same manner as 

provided for adults; or (iii) the portion of the 

sentence to be served in the same manner as 

provided for adults 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 including, 

but not limited to, commitment under subdivision 

14 of § 16.1-278.8 or § 16.1-285.1. 

 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 or may in its discretion impose an 

adult sentence and suspend the sentence

conditioned upon successful completion of such 

terms and conditions as may be imposed in a 

juvenile court upon disposition of a delinquency 

case. 

(Emphasis added.) 

Code § 16.1-278.8(14) permits the court to commit a 

juvenile eleven years of age or older to the Department of 

Juvenile Justice for certain felony offenses and Class 1 

misdemeanors. Code § 16.1-285.1(A), relating to the commitment 

of a juvenile fourteen years of age or older who has been found 

guilty of certain felony offenses or has been transferred from 

a juvenile district court pursuant to Code § 16.1-269.1, 

23
permits the circuit court to commit the juvenile to the 

Department of Juvenile Justice if upon consideration of various 

statutorily enumerated criteria “in the opinion of the court 

the needs of the juvenile and the interests of the community 

would clearly best be served by [such] commitment.” Code 

§ 16.1-285.1(C) provides that: 

In ordering commitment pursuant to this section, the 

court shall specify a period of commitment not to 

exceed seven years or the juvenile’s twenty-first 

birthday, whichever shall occur first. The court may 

also order a period of determinate or indeterminate 

parole supervision to follow the commitment but the 

total period of commitment and parole supervision 

shall not exceed seven years or the juvenile’s 

twenty-first birthday, whichever occurs first. 

As pertinent to the present appeal, one of the criteria 

the court must consider in applying this code section is 

“whether the offense involved the use of a firearm or other 

dangerous weapon by brandishing, displaying, threatening with 

or otherwise employing such weapon.” Code § 16.1-

285.1(B)(2)(iii). 

 As recounted by the majority, Demetrious was sixteen years 

of age when he committed eleven counts of armed robbery in 

violation of Code § 18.2-58 and five counts of use of a firearm 

in the commission of a felony in violation of Code § 18.2-53.1. 

In accord with the statutory scheme outlined above, Demetrious 

waived a preliminary hearing on the charges, was certified to 

be tried in the circuit court pursuant to Code § 16.1-269.1, 

24
pled guilty to the charges, and was ultimately tried and 

convicted. In its final sentencing order, in pertinent part, 

the circuit court stated: 

On the convictions for Use of a Firearm in Commission 

of a Felony and Use of a Firearm in Commission of a 

Felony, Second or Subsequent Offense, the Court finds 

[that] these offenses are not statutorily defined by 

[Code] § 16.1-228 as violent juvenile felonies. The 

Court imposes a juvenile disposition on these 

convictions, in accordance with [Code] § 16.1-

272(A)(2), and hereby commits [Demetrious] to the 

Department of Juvenile Justice until his 20th 

birthday, in accordance with [Code] § 16.1-285.1. 

 With regard to the robbery offenses, the circuit court 

sentenced Demetrious to a term of 25 years in the penitentiary 

on each offense to run concurrently, suspended those sentences 

conditioned on good behavior for 10 years, and placed 

Demetrious on active adult probation for 5 years commencing 

upon his release from incarceration with the Department of 

Juvenile Justice. 

Code § 16.1-272(A)(2), unlike subsection (A)(1), applies 

to “any other felony,” rather than a “violent juvenile felony” 

and all “ancillary crimes,” which are defined in Code § 16.1-

228 as “any delinquent act committed by a juvenile as a part of 

the same act or transaction . . . which would be a felony if 

committed by an adult.” In this case, the use of a firearm 

offenses are clearly “ancillary crimes” to the violent juvenile 

felony of robbery. Thus, the circuit court should have 

25
sentenced Demetrious pursuant to Code § 16.1-272(A)(1) instead 

of Code § 16.1-272(A)(2). Regardless, the Commonwealth never 

objected to Demetrious being sentenced pursuant to Code § 16.1-

272(A)(2), and thus, failed to preserve any objection to the 

circuit court’s use of subsection (A)(2). 

Nonetheless, the circuit court’s sentence in Demetrious’ 

case is entirely consistent with the provisions of Code § 16.1-

272(A)(1)(iii) which expressly provides that the court may 

order “the portion of the sentence to be served in the same 

manner as provided for adults to be suspended conditioned upon 

successful completion of such terms and conditions as may be 

imposed in a juvenile court . . . including . . . commitment 

. . . under [Code] § 16.1-285.1.” Additionally, the circuit 

court’s sentence is consistent with the provisions of Code 

§ 16.1-272(A)(2) which also expressly provides that the court 

may order “commitment under [Code] § 16.1-285.1 or may in its 

discretion impose an adult sentence and suspend the sentence 

conditioned upon successful completion of such terms and 

conditions as may be imposed in a juvenile court upon 

disposition of a delinquency case.” One such dispositional 

alternative available to a juvenile court is a commitment of a 

juvenile to the Department of Juvenile Justice pursuant to Code 

§ 16.1-278.8(A)(14). 

26
 It is then readily apparent that whether the circuit court 

had imposed its sentence upon Demetrious under Code § 16.1-

272(A)(1) or (A)(2), both subsections permitted the court to 

commit Demetrious to the Department of Juvenile Justice under 

Code § 16.1-285.1 and to suspend the adult sentence imposed on 

him conditioned on his successful completion of that 

Department’s program. Nevertheless, the Court of Appeals and 

the majority conclude that the circuit court was not permitted 

to impose a juvenile disposition upon Demetrious under Code 

§ 16.1-272 because Code § 18.2-53.1 prescribes a specific 

penalty for individuals found guilty of use of a firearm in the 

commission of a felony and, therefore, is a more specific 

statute than Code § 16.1-272 and requires the individual to 

serve a mandatory period of incarceration. 

 As a general proposition, it is difficult for me to 

conclude from the language of Code § 18.2-53.1 relating to “any 

person” that the General Assembly intended to potentially 

impose a mandatory minimum term of imprisonment of three years 

upon a juvenile fourteen years of age at the time the offense 

was committed and that “[s]uch punishment shall be separate and 

apart from, and shall be made to run consecutively with, any 

punishment received for the commission of the primary felony.” 

Such an interpretation of this statute would seem to be 

contrary to the ameliorative purpose of the juvenile justice 

27
system and the statutory scheme that implements it. In my 

view, the “conflict” which the majority finds between Code 

§ 16.1-272 and Code § 18.2-53.1 is illusory. 

 Code § 16.1-272 specifically and comprehensively addresses 

the sentences that are authorized to be imposed by a circuit 

court upon juveniles fourteen years of age or older. In 

contrast, Code § 18.2-53.1 has no such age limitation for a 

person who violates its provisions. Moreover, Code § 16.1-

272(A) expressly provides that “[i]n any case in which a 

juvenile is indicted, the offense . . . 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.” (Emphasis added.) Thus, if indeed there is a 

conflict between Code § 16.1-272 and Code § 18.2-53.1, these 

statutes are readily harmonized to resolve that conflict. 

 Clearly Code § 18.2-53.1 reflects a legislative intent 

that the offense it prescribes be punished. The provisions of 

Code § 16.1-272 permit a juvenile to be so punished, just as 

occurred in Demetrious’ case. However, because Code § 16.1-272 

specifically addresses juvenile offenders and permits the 

suspension of sentences in “any [such] case,” this statute 

28
permits the circuit court in its discretion to suspend a 

sentence imposed under Code § 18.2-53.1.∗

 For these reasons, I would reverse the judgment of the 

Court of Appeals in Demetrious’ case and Dwayne’s case and 

enter final judgment affirming the decision of the circuit 

court in both cases. 

JUSTICE MILLETTE, with whom SENIOR JUSTICE CARRICO joins, 

concurring in part and dissenting in part. 

 I concur with the majority’s view that with respect to the 

appeal in the matter of Dwayne Jamar Brown v. Commonwealth, the 

Commonwealth did not comply with Rule 5A:18, and thus failed to 

preserve for appeal its argument that the circuit court did not 

have the discretion to sentence Dwayne as a juvenile on the use 

of a firearm in the commission of a felony charges. 

 I respectfully dissent, however, in the matter of 

Demetrious Omar Brown v. Commonwealth. I disagree with the 

majority on two issues. First, I believe that the Commonwealth 

failed to preserve for appeal its argument that the use of a 

firearm in the commission of a felony charges are ancillary 

charges to the robberies and thus require sentencing pursuant 

to Code § 16.1-272(A)(1). 

 ∗

 In light of the decision by the Supreme Court of the 

United States in Roper v. Simmons, 543 U.S. 551, 568 (2005), 

29
 At Demetrious’ sentencing, the Commonwealth argued that 

under Code § 18.2-53.1 the five use of a firearm charges 

required a mandatory minimum sentence of 23 years (three years 

for the first conviction and five years for the second and each 

subsequent conviction). The Commonwealth relied upon Bullock 

v. Commonwealth, 48 Va. App. 359, 631 S.E.2d 334 (2006), to 

support its argument that the “broad discretion in the juvenile 

sentencing statute could [not] override the mandatory 

provisions of [Code § 18.2-53.1].” 

 Bullock was a juvenile who was certified and convicted as 

an adult for two robberies and two charges of use of a firearm 

in the commission of a felony. Id. at 362, 631 S.E.2d at 336. 

Pursuant to Code § 16.1-272(A)(1), the circuit court suspended 

imposition of the sentence on the robbery convictions and 

sentenced Bullock to consecutive terms of three and five years 

incarceration for the firearms convictions. Id. at 364, 631 

S.E.2d at 336. The Court of Appeals held that the mandatory 

minimum sentencing provisions of Code § 18.2-53.1 precluded the 

circuit court from suspending any portion of the mandatory 

sentence pursuant to Code § 16.1-272(A)(1)(iii). Id. at 377, 

631 S.E.2d at 343. In its analysis, the Court of Appeals 

discussed the conflict between the language of Code § 18.2-

 

the majority’s reliance upon Thomas v. Commonwealth, 244 Va. 1, 

419 S.E.2d 606 (1992), is not persuasive. 

30
53.1, requiring a mandatory minimum sentence that cannot be 

suspended, and the language of Code § 16.1-272(A)(1)(iii), 

permitting “the portion of the sentence to be served in the 

same manner as provided for adults be suspended upon successful 

completion of such terms and conditions as may be imposed in a 

juvenile court . . . .” According to the Court of Appeals, 

there is a conflict when one statute prohibits suspension of a 

sentence and a second statute authorizes it, so that under Code 

§ 16.1-272(A)(1), a juvenile sentenced as an adult is not 

eligible to have his mandatory minimum sentence suspended. 

Bullock, 48 Va. App. at 377, 631 S.E.2d at 343. 

 When the Commonwealth concluded its argument in 

Demetrious’ case, the circuit court judge recessed the 

sentencing proceeding in order to review the statutes and the 

Bullock opinion. Upon consideration of the Commonwealth’s 

argument, the judge acknowledged that he agreed with the 

Commonwealth that if Demetrious were sentenced pursuant to Code 

§ 16.1-272(A)(1), any suspension of the sentence imposed for 

the use of firearm conviction was precluded by the mandatory 

sentencing requirements of Code § 18.2-53.1. However, the 

judge concluded that if Demetrious were sentenced pursuant to 

Code § 16.1-272(A)(2), a juvenile sentence could be imposed, 

and suspended, without conflicting with the mandatory minimum 

requirements of Code § 18.2-53.1. In concluding that 

31
Demetrious’ sentence for use of a firearm could be imposed 

pursuant to Code § 16.1-272(A)(2), the judge wrongly relied on 

the fact that use of a firearm is not defined as a violent 

felony requiring sentencing pursuant to Code § 16.1-272(A)(1). 

The judge failed to consider that the use of a firearm charges 

were ancillary offenses to the robberies and that sentencing 

for violent offenses, as well as ancillary offenses, was 

required to be pursuant to Code § 16.1-272(A)(1) (dealing with 

a conviction for “a violent felony . . . and for all ancillary 

crimes”) and not pursuant to Code § 16.1-272(A)(2). 

 When the circuit court rejected the Commonwealth’s 

argument and imposed a juvenile disposition pursuant to Code 

§ 16.1-272(A)(2) on the use of a firearm charges, the 

Commonwealth did not make any objection to the circuit court’s 

imposition of a juvenile disposition pursuant to Code § 16.1-

272(A)(2). Despite ample opportunity to do so, the 

Commonwealth never argued that sentencing for the ancillary 

charges of use of a firearm was required pursuant to Code 

§ 16.1-272(A)(1). The judge was never put on notice that the 

Commonwealth disagreed with the judge’s analysis that 

Demetrious could be sentenced for the nonviolent, yet 

ancillary, use of a firearm charges pursuant to Code § 16.1-

272(A)(2), instead of Code § 16.1-272(A)(1). In light of that 

failure by the Commonwealth, I disagree with the majority that 

32
the Commonwealth properly preserved the sentencing issue for 

appeal. 

 Second, I disagree with the majority’s conclusion that the 

resulting preclusion of juvenile disposition for the use of a 

firearm charges would have been the same if the circuit court 

was authorized to sentence Demetrious pursuant to Code § 16.1-

272(A)(2). 

 Code § 16.1-272(A)(2) first authorizes the circuit court 

to “sentence or commit the juvenile offender in accordance with 

the criminal laws of the Commonwealth.” But Code § 16.1-

272(A)(2) also gives the circuit court the alternative option 

to “in its discretion deal with the juvenile in the manner 

prescribed . . . for the hearing and disposition of cases in 

the juvenile court.” This language is not in conflict with the 

mandatory sentencing language of Code § 18.2-53.1 because 

unlike subsection (A)(1)(iii) it does not, on the one hand, 

require a mandatory adult sentence, and then, on the other 

hand, allow its suspension. Subsection (A)(2) provides as an 

option a specific provision dealing with exclusively juvenile 

sentencing for non-violent felonies. This sentencing 

alternative addresses the dispositional goals of juvenile 

sentencing without ever requiring an adult sentence. 

 We have long recognized that 

33
[t]he trial and punishment of minor offenders 

follows the regular criminal procedure, modified, 

in certain respects, by the statutes setting up 

juvenile and domestic relations courts. These 

statutes have established a system whereby most 

juvenile offenders are first subjected to the 

jurisdiction of the juvenile courts for 

proceedings therein designed to subject such 

offenders to the supervision and control of the 

State in a manner in which the delinquent ways of 

the child will be corrected and he be made to lead 

a correct life. 

Mickens v. Commonwealth, 178 Va. 273, 279, 16 S.E.2d 641, 643 

(1941). But different criminal procedures are applied to 

“children who have committed grave offenses.” Id. at 279, 16 

S.E.2d at 643-44. 

 In certain situations, Code § 16.1-272(A)(2) authorizes 

the circuit court to accomplish the rehabilitative purposes of 

juvenile disposition for juveniles tried as adults and found 

guilty of a felony, and gives the court the discretion to 

fashion a juvenile disposition, thereby avoiding the mandatory 

minimum sentences prescribed by Code § 18.2-53.1. By contrast, 

none of the three sentencing options in Code § 16.1-272(A)(1), 

involving sentencing of a violent juvenile felony, gives the 

circuit court the discretion to impose such a juvenile 

disposition because all three require an adult sentence. 

Pursuant to subsection (A)(1), the court may order that (i) the 

juvenile be committed for a portion of his or her sentence 

under § 16.1-285.1 and serve the remainder of his or her 

34
sentence as an adult; (ii) the juvenile serve the entire 

sentence as an adult; or (iii) the portion of the sentence to 

be served as an adult 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. 

 Because the court under circumstances not presented in 

this case, involving sentencing of a juvenile convicted of any 

felony other than a violent felony or an ancillary offense, 

would have the option to fashion a juvenile disposition instead 

of imposing an adult sentence with a mandatory minimum period 

of incarceration, I cannot join the majority’s conclusion that 

the result would have been the same if the circuit court could 

have sentenced Demetrious pursuant to Code § 16.1-272(A)(2). 

 For these reasons, I would reverse the judgment of the 

Court of Appeals in both Dwayne’s and Demetrious’ appeals 

because the Commonwealth failed to preserve its arguments with 

regards to sentencing, and would enter final judgment affirming 

the judgment of the circuit court in both cases. 

35