COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Beales and Decker Argued at Salem, Virginia

RANDY D. ROSS MEMORANDUM OPINION * BY v. Record No . 1190-17-3 CHIEF J UDGE GLEN A. HUFF OCTOBER 30, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF BEDFORD COUNTY James W. Updike, Jr., Judge Glenn L. Berger (Berger & Thor nhill, on brief), for appellant

. Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Randy D. Ross (“appellant”) appe als his sentence imposed by th e Circuit Court of Bedford County (“trial court”). On app eal, appellant contends that the trial court erred by imposing a sentence that, appellant claims, violates the Eighth Amendment to the United St ates Constitution and controlling case law. For th e following reasons, this Cour t affirms appell ant’s sentence.
I. BACKGROUND On appeal, this Court considers “the evidence and all reasonab le inferences flowing from that evidence in the light most favorable to the Commonwealth,” the prevailing party below. Williams v. Commonwealth, 49 Va. A pp. 439, 442, 642 S.E.2d 295, 296 (2007) ( en banc ) (quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, the evidence shows that in 1999 appe llant was convicted, pursuant t o a guilty plea, of capital murder, robbery, and using a firearm to commit murder and robbery. The crime in question took place when

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - appellant was sixteen years old. He was sentenced to two life sentences without t he possibility of parole for the robbery and capita l murder convictions, and to e ight years for the firearm offenses, for a total sentence of two life terms plus eight years. In 2013, appellant filed a habeas corpu s petition in the Unite d States District Court for the Western District of Vi rginia, seeking relie f from his two life sentences based on the United States Supreme Court’s holding in Mille r v. Alabama, 56 7 U.S. 460 (201 2). On January 25, 2016, the Supreme Court decide d Montgomery v. Louis iana, 136 S. Ct. 718 ( 2016), and declared that the holding from Miller was retroac tive. On August 30, 2016, the f ederal district court granted appellant’s writ and ordered resentencing because his original case was settled via a plea agreement and there was no evidence in the record that the trial judge “c onsidered any factors relating to youthful immaturity o r incorrigibility.” The trial court held a resentenc ing hearing on J une 27, 2017, and both sides presented testimony from a number of witne sses. The probation officer wh o prepared the presentencing report testified about its contents, including appellant’s stat ements about his prior family life and the circumstances surrounding the robbery and murder. The victim’s mother and father testified about the terrible impact of the murder on their family, and a captai n from the Bedford County Sheriff’s Department testified about the character of the victim, a sixte en-year-old boy who had reluctantly agreed to give appellant, appellant’s girlfriend, and her two c hildren a ride in his car when they kept pressing him for a ride. Appellant’s former juvenile prob ation officer testified about his childhood involvement with the justice system, including hi s placement in a number of fost er homes, his repeated interactions with law enforcement, his repeat ed absconding from foster homes and a rehabilitative group home, and his placement in juvenile det ention. Appella nt’s mother te stified about his unstable home, poverty, and her crimin al involvement as we ll as her husband’s violence, drug use, and frequent- 3 - theft of money from appellant and his siblings. The director o f food services fr om Keen Mountain Correctional Center testified about appellant’s solid work ethi c and success as a foo d service worker during his incarceration. Finally, a forensic psychologist prepared a written report and testified at length about appellant’s immaturity, lack of executive function, inability t o anticipate consequences of his actions, and his need for social acceptance to replace his dysf unctional family. S he also testified that appellant’s behavior surrounding the crimes was characteri stic of the kind of youth and immaturity that the Supreme Court was concerned about in the Mi ller decision and other decisions regarding juvenile sentencing. S he testified that at the time of the murder, appellant displayed all of the characteristics of an adolescent whose brain had not yet fu lly developed, but that his prison record reflected the behavior of an adult, with a fully develop ed brain. After hearing all the evidence and a long statement from appel lant expressing his remorse for the murder, the trial court imposed a sentence of ninety-on e years for robbery, and a sentence of life in prison, suspended after s erving ninety-one years, for c apital murder. These sentences were to run concurrently, but consecutive to the eight years for the fi rearms charges, fo r a total active sentence of ninety-nine years. This appeal followed.
II. STANDARD OF REVIEW As a general rule, this Court reviews a trial court’s sentenci ng decision for abuse of discretion. Given this deferential standard of r eview, we will not interfere with the sentence so long as it “was within the range set by the legislature” for the par ticular crime of which the defendant was convicted. Johns on v. Commonwealth, 6 3 Va. App. 175, 181, 755 S.E.2d 468, 471 (2014) (quoting Jett v. Commonw ealth, 34 Va. App. 25 2, 256, 540 S.E.2d 511, 513 (2001)). “To the extent that appellant’s argument . . . raises a question of constituti onal interpretation, however, that issue is reviewed de novo .” Id. at 182, 755 S.E.2d at 4 71 (citing Lawlor v. Commonwealt h, 285 Va. 187,- 4 - 240, 738 S.E.2d 8 47, 877 (2013)). In cond ucting its review, th is Court is “bound by the trial court’s findings of historical fact unle ss ‘plainly wrong’ or without e vidence to support them.” McGee v. Commonwealth, 25 Va. App . 193, 198, 487 S.E. 2d 259, 26 1 (1997) ( en banc ).
III. ANALYSIS Appellant raises four assignment s of error, two of which challe nge his sentence for robbery and two of which challenge his se ntence for murder. In each as signment, appellant contends that the trial court acted contrary t o United States Supreme Court c ase law regarding sentencing for juveniles. Because t he trial court complie d with existing prec edent from the Vi rginia Supreme Court and the United States Supre me Court, the sentence was app ropriate. A. Angel is bindi ng on this Court. In his first assignment of erro r, appellant contends that the trial court erred by “refusing to reject” the Virginia Supreme Cou rt’s holding in Angel v. Common wealth, 281 Va. 248, 704 S.E.2d 386, cert. denied, 565 U.S. 920 (2011). A ppellant specifically asserts th at the relevant holding in Angel—that Virginia’s geriatric parole process grants defendant s a “meaningful opportunity for release based on maturity and rehabilitation,” id. at 275, 704 S.E.2d at 402—is in conflict with the United States Supreme Court’s la ter decisions i n Miller v. Alab ama and Montgomery v. Louisiana. The relief appellant requests is beyond the auth ority of this Court. “Only decisions of the United States Supreme Court can supersede binding precedent fro m the Virginia Supreme Court.” Anderson v. Commonwealth , 48 Va. App. 704, 712 n.2, 634 S.E.2d 372, 376 n.2 (2006). The United States Supreme Court denied certiorari when Angel was ch allenged on direct appeal, and it reversed the latest challenge to Angel through a habeas proceed ing. See Virginia v. LeBlanc, 137 S. Ct. 1726, 1729 (201 7) (finding that “the Virginia trial cour t’s ruling, restin g on the Virginia Supreme Court’s earlier ruling i n Angel, was not objectively unreasonable in light of this Court’s current case law”). Ac cordingly, Angel is binding on this Cour t. The law in Virgi nia remains that- 5 - geriatric parole provides prison ers who committed their crimes as juveniles with the “meaningful opportunity” for release that the United States Supreme Court s aid in Graham is required by the Eighth Amendment. Angel, 281 V a. at 275, 704 S.E.2d at 402. B. Angel controls any review of the robbery sentence. In his second assignment of error, appellant claims that his n inety-one-year sentence for robbery violates the holding in Graham v. Florida, 560 U.S. 48 (2010), which prohibits sentencing juveniles to life w ithout the possibility o f parole for crimes other than homicide. The trial court, however, did not sentence appellant to life in prison for robbe ry, it sentenced him to ninety-one years. Even assuming without d eciding that the ninety-one-year term is the functional equivalent of a life sentence, Virginia’s geri atric parole statute still appl ies to appellant’s robbery sentence. Code § 53.1-40.01. See al so Johnson v. Commonw ealth, 292 Va. 772, 7 81, 793 S.E.2d 32 6, 331 (2016) (reaffirming the holding in Angel that geriatric release under Code § 53.1-40.01 provides a “meaningful opportunity for rel ease that is akin to parole”). As the Virginia Supreme Court reasoned in Johnson, appellant was not sentenced to life in pri son without t he possibility of parole, he was only sentenced to life in prison. Id. Like the defenda nt in Johnson, t he possibility exists that appellant’s sentence of life in prison for the robbery convicti on will convert to a s entence of roughly forty-two years when h e reaches age sixty. Accordingly, this C ourt has no grounds on which to find that the ninety-one-year sentence for robbery violates the hold ing in Graham. C. Miller (and thus Mont gomery) do not apply. In his last two assignments of er ror, appellant argues that th e trial court erred by ignoring the holdings and procedural requireme nts in Miller and Montgomery w hen it sentenced him to “the- 6 - functional equivalent” of life i n prison without parole for cap ital murder. 1 Appellant’s argument fails, however, because appellant was not subjected to a mandat ory life-without-parole sentence. The relevant holding from Mille r is that juveni le offenders ca nnot be subjected to mandatorylife without parole. 567 U.S. at 465. Instead, while not cat egorically pro hibiting life sentences without pos sibility of parole, the Miller decision re quires a sentencing official to “take into account how children are different, and how those differen ces counsel agai nst irrevocably sentencing them to a lifetime in prison.” Id. at 480. The Montgomery decision declared that “Miller announced a substantive ru le of constitutional law” whi ch must be given retroactive effect in state collateral review proc eedings. 136 S. C t. at 736. Mo ntgomery also reiterated and explained the procedural element of the M iller decision, that it “require s a sentencer to consider a juvenile offender’s youth and attendant cha racteristics before determini ng that life without parole is a proportionate sentence.” Id. The Virginia Supreme Court has already examined the extent of Miller’s and Montgomery’s effect on sentencing in Virgini a, noting that “[b]oth cases add ressed mandatorylife sentences without the possibility of parole.” Jones v. Commonwealth, 293 Va. 29, 56, 795 S.E.2d 705, 721 (2017) (Jones II). The Supreme Court’s decision in Jones II expressly rejected the suggestion by the dissent in that case 2 that Virginia shoul d expand Miller’s app licability to include discretionary life-without-parole sentences. I d. at 57, 795 S.E.2d at 721. Appellant argues that this Court should adopt the position of t he dissent in Jones II: “[J]uveniles in Virginia facing a sentence of life

1 Because capital murder is a Class 1 felony, geriatric parole i s not available. Code § 53.1-40.01. Accordingly, the holdi ng in Angel does not resol ve appellant’s last two assignments of error.

2 “Montgomery made it clear that the focus of Miller was not tha t only mandatory life sentences are unconstitutional; rather, it is that the Eighth A mendment requires individualized consideration before a juvenile can be sentenced to life in pri son without the possibility of parole.” Jones II, 293 Va. at 61, 795 S.E.2d at 724 (Powell, J ., dissenting).- 7 - without parole should be afford ed a Miller hearing, for the rea sons stated in Montgomery.” Id. at 73 n.11, 795 S.E.2d at 730 n.11 (P owell, J., dissenting). This Co urt declines to do so. As in Angel, we have no authority to do so even if we agreed with appellant. Furthermore, even if this Court could do as appellant requests , and as the dissent in Jones II argues, we would still come to the same conclusion. By declari ng mandatory life-without-parole sentences unconstituti onal, Miller prohibite d the imposition of such sentences unless the sentencing official holds a hearing to conside r mitigating factors, including “youth and its attendant characteristics,” Montgomery, 13 6 S. Ct. at 736, and “transient immaturity,” id. at 735. A sentence of life without possibility of parole may still be imposed on a juvenile offender as long as the court imposing it has considered all the factors necessary to “separate those juveniles who may be sentenced to life without parolefrom those who may not.” Id. In Miller, the C ourt noted with concern some of the factors that were missed by m andatory sente ncing schemes, including a defendant’s “immaturity, impetuosity, and failure to appreciate risks and consequences . . . family and home environment . . . circ umstances of the homicide offens e . . . the way familial and peer pressures may have a ffected him . . . [and] inability to deal w ith police officers or prosecutors (including on a plea agreement).” 567 U.S. at 477-78. In the present case, the trial court conducted a hearing befor e resentencing app ellant. At the hearing, the trial court heard ext ensive testimony regarding ap pellant’s immaturity and desire to be liked, the dysfunctional nature of his family and search for so cial acceptance, his self-medication with contraband substances, and his disciplinary records in pri son. The court also heard testimony from appellant’s mother about the drug use and domestic violenc e that appellant experienced growing up, the fact that his mo ther was in and out of jail, an d that his stepfathe r stole from him to feed a drug habit. Th e court heard extensive testimony from a clinical psychologist about appellant’s feelings of isolation during his adolescence, and t hat his behavior was consistent with- 8 - the lack of maturity and lack of “executive function” common am ong adolescents. The psychologist also testified that all of the five factors mentio ned in the Miller decision as indicators of “youth and immaturity” were present in appellant’s life prio r to the crime for which he was convicted. The psychologist als o prepared a detailed written r eport which the trial judge was able to review before the hearing even took place. In short, despite the fact that the Miller and Montgomery case s prohibit only mandatory life-without-parole sentences, an d despite the fact that appell ant did not face such a mandatory sentencing scheme, appellant was still afforded the protections specified in the Miller decision. He was given a hearing and in that hearing, he presented evidence of his youth and i mmaturity at the time of his offense—evidence that the judge was free to conside r when determining his sentence. Contrary to appellant’s contention in his third assignment of error, nothing in the Supreme Court’s decision in Miller or M ontgomery requires a specific fa ctual finding that appellant is “irreparably incorrigible” before pronouncing a sentence of lif e without parole. 3 The requirement is that the sentencing official “must have the opportunity to cons ider mitigating cir cumstances before imposing the harshest possible penalty for juveniles.” Miller, 567 U.S. at 489. When the trial court holds a hearing, and the record shows that the defendant had th e chance to present evidence about mitigating circumstances, “[a]bsent clear evidence to the contr ary in the record, the judgment of a trial court comes to us on appeal with a presumption that the l aw was correctly applied to the facts.” Yarborough v. Commonw ealth, 217 Va. 971, 978, 234 S .E.2d 286, 2 91 (1977). Nothing in the

3 We recognize that recently the United States Court of Appeals for the Fourth Circuit noted that “a sentencing judge a lso violates Miller’s rule any time it imposes a discretionary life-without-parole s entence on a juvenile homicide offender wi thout first concluding that the offender’s ‘crimes reflect perman ent incorrigibility,’ as disti nct from ‘the transient immaturity of youth.’” Malvo v. Mathena, 893 F.3d 265, 274 (4th Cir. 2018) ( emphasis added) (quoting Montgomery, 136 S. Ct. at 734). How ever, “[o]nly decisions of the United States Supreme Court can supersede binding preced ent from the Virginia Supreme Court.” Anderson, 48 Va. App. at 712 n.2, 634 S.E.2d at 376 n.2.- 9 - record shows that the trial cour t failed to adequately consider all of the evidence when it imposed the new active sentence of ninet y-nine years in the penitentiar y. III. CONCLUSION The Virginia Supreme Court’s decision in Angel v. Commonwealth is still bindi ng on this Court, and Virginia’s geriatric parole statute provides appella nt with a meaningful opportunity for release on the sentence for the robbery conviction. Therefore, his robbery sentence of ninety-one years does not violate United St ates Supreme Court precedent in Graham v. Florida. Because the holdings in Miller and M ontgomery pr ohibit only mandatory sentences of life without the possibility of parole, a ppellant’s discretiona ry life sentence, suspended after ninety-one years, for capital murder, is not affected b y those decisions. Furthermor e, given the fact that appellant was allowed to present evidence of h is youth and immaturity at the time of his offens e during his resentencing hearing, appellant was afforded all the protection s required by Miller and Montgomery. Therefore, this Court finds that the trial court d id not abuse its discretion, and we affirm the sentence the appellant was given by the trial court in the resentencing hearing. Affirmed.