COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Frank Argued at Richmond, Virginia

TREYON CHRIS WILLIAMS MEMORANDUM OPINION * BY v. Record No. 1880-04-2 JUDGE ROBERT P. FRANK OCTOBER 4, 2005 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Frederick G. Rock well, III, Judge David G. Hubbard (WallacePledger , PLLC, on brief), for appellant. Steven A. Witmer, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.
Treyon Chris Williams, appellant, a juvenile, appeals an order of the Circuit Court of Chesterfield County finding him guilty of three c ounts of violating the terms of his probation and committing him to the Department of Juvenile Justice. On appeal, appellant contends that Code § 16.1-278.8 bars a commitment for a probation viola tion. For the reasons stated, we affirm.
BACKGROUND Our review of the record reveal s the following procedural history. 1 On February 9, 2004, appellant was charged in the juve nile and domestic relations dist rict court with two counts of violating the terms of his probation, having been placed on probation on July 26, 2001. These violations were based on a 10-day school suspension and a positive urine test for marijuana. A

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 As a preliminary note, appellant failed to file a transcript or any st atement of facts of the proceedings before the trial court as part of th e record on appeal as re quired by Rule 5A:8. The record contains only the orders from the juvenile and domestic re lations district court and the circuit court.- 2 - third petition was filed on February 23, 2004, ch arging appellant with another probation violation for a second school suspension. On March 16, 2004, the juvenile and domestic relations district court convict ed appellant of three counts of violating his probation and committed him to the Department of Juvenile Justice (DJJ) for an indeterminate period. Appellant appealed these convic tions to the circuit court, wh ere on May 20, 2004 he pled guilty to all three probation violations. The trial court committed appellant to DJJ for an indefinite period of time on each charge. Appellant timely noted this appeal.
ANALYSIS Appellant contends that the trial court er red in committing him to DJJ, arguing that a probation violation cannot serve as grounds fo r commitment. In support of his position, appellant relies on this Court’s decision in Salvatierra v. City of Falls Church , 35 Va. App. 453, 546 S.E.2d 214 (2001). Appellant contends that because his argument is based solely on statutory interpretation, we can review the trial court’s order to commit him to DJJ without a transcript or statement of facts. We disagree. Code § 16.1-278.8(A)(14) provides the following disposition for a juvenile found to be delinquent: Commit the juvenile to the Depart ment of Juvenile Justice, but only if he is older than ten years of age and the current offense is (i) an offense which would be a felony if committed by an adult or, (ii) an offense which would be a Class 1 misdemeanor if committed by an adult and the juve nile has previously been found to be delinquent based on an offense which would be either a felony or Class 1 misdemeanor if committed by an adult. In Salvatierra , we held that a probation violation is not the “current offense” to which Code § 16.1-278.8(A)(14) refers. In stead, for purposes of that st atute “current offense” is the offense underlying the order of probation. Salvatierra , 35 Va. App. at 458, 546 S.E.2d at 216. Salvatierra holds that the underlying offense must satisfy the requirements of Code- 3 - § 16.1-278.8(A)(14) in order for the trial court to commit a juven ile for a subsequent probation violation. Id. at 458, 546 S.E.2d at 216. In Salvatierra , the underlying or “current” offense, a Class 1 misdemeanor, was the first conviction for the juvenile and as such was insufficient under the statute to commit him to DJJ. 2 Id. at 457-58, 546 S.E.2d at 216. Here, the record is devoid of any informa tion regarding the prior delinquency findings against appellant. The final orde r shows that appellant violated the terms of his probation, but does not disclose the underlying offense. 3 “When the appellant fails to ensure that th e record contains transcripts or a written statement of facts necessary to permit resolution of appellate issues, any assignments of error affected by such omission shall not be considered.” Rule 5A:8(b); see Anderson v. Commonwealth , 13 Va. App. 506, 508-09, 413 S.E.2d 75, 76-77 (1992); Turner v. Commonwealth , 2 Va. App. 96, 99-100, 341 S.E.2d 400, 402 (1986). Here, a transcript or a written statement of f acts is indispensable to the determination of whether the trial court erred in committing appe llant to DJJ for viola ting the terms of his probation. See Turner , 2 Va. App. at 99, 341 S.E.2d at 402. On the record before us, we cannot

2 The juvenile in Salvatierra had been found delinquent w ith respect to misdemeanor assault and battery and placed on probation, the condi tions of which he subsequently violated by absconding from a residential tr eatment facility. The juveni le had no prior findings of delinquency, and he was committed for viol ating the terms of his probation. See Salvatierra , 35 Va. App. at 455, 546 S.E.2d at 215.

3 The final trial and sentencing order notes only that appellant was committed for three offenses, each described as “Violate Probation (M).” Two prior orders appear in the record, id entical except for their dates and offense descriptions. The record does not reveal why th ere are three separate or ders. The first order notes that appellant was committed for three offenses described as “Violate Probation (M).” The second order differs only in its description of the offenses as “Violate Probation/Assault & Battery (M).” The third and final order returns th e offense description to that originally noted, “Violate Probation (M).” While the brief of the Commonwealth make s mention of a prior delinquency finding against appellant for forgery and uttering, an offe nse that would be a felony if committed by an adult, those facts are not contained in the re cord and are not properl y before this Court.- 4 - determine whether appellant’s underlying offense is ei ther (i) an offense that would be a felony if committed by an adult or, (ii) an offense that would be a Class 1 misdemeanor if committed by an adult where appellant had a prior felony or Class 1 misdemeanor conviction. Accordingly, Rule 5A:8 bars our review of th e trial court’s decision “on the ground that the record on appeal is insufficient to fairly and accurately de termine the issue[] presented.” Turner , 2 Va. App. at 99, 341 S.E.2d at 402. Further, as the Commonwealth correctly note s, in the absence of any transcript or statement of facts complying with Rule 5A:8, the record fails to establish that appellant presented the issues he raises on appeal to th e trial court, as requi red by Rule 5A:18. See Parker v. Commonwealth , 42 Va. App. 358, 379, 592 S. E.2d 358, 369 (2004), aff’d , 269 Va. 174, 608 S.E.2d 925 (2005) ( per curiam ). The burden is on appellant to present a sufficient record from which the appellate court may determine that he preserved the claimed errors for appeal. See Twardy v. Twardy , 14 Va. App. 651, 658, 419 S.E.2d 848, 852 (1992); Lee v. Lee , 12 Va. App. 512, 516-17, 404 S.E.2d 736, 738-39 (1991) ( en banc ). Although Rule 5A:18 allows exceptions for good cau se or to meet the ends of justice, appellant does not argue that we should invoke thes e exceptions. See Redman v. Commonwealth , 25 Va. App. 215, 221, 487 S.E.2d 269, 272 (1997). We will not consider such an argument sua sponte . Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc ). Appellant has failed to provide an adequate record on appeal that would allow us to consider his argument, or from whic h we can determine that he raised his argument to the trial court. 4

4 At oral argument before this Court, appe llant contended that a trial court could only commit a juvenile to DJJ if the juvenile rece ived a suspended commitment for the underlying offense. Again this issue is procedurally defa ulted because the record does not disclose the underlying offense or the dispositi on of that offense. With no record, we also cannot determine if this issue was preserved. See Rule 5A:18.- 5 - “If an insufficient record is furnished, the judgment appealed from will be affirmed.” White v. Morano , 249 Va. 27, 30, 452 S.E.2d 856, 858 (1995). As there are no facts before this Court to allow it to consider wh ether the proper underlying offense was present to allow the trial court to commit appellant to DJJ under Code § 16.1-278.8(A)(14), we affirm the decision of the trial court. Affirmed.

Appellant also failed to comply with Rule 5A :20(c), which requires “[ a] statement of the questions presented with a clear and exact refere nce to the page(s) of the transcript, written statement, record, or appendix where each questi on was presented in the trial court.” While appellant’s brief contains no such referen ce, and “[s]tatements unsupported by argument, authority, or citations to the re cord do not merit appellate cons ideration,” Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992), we do not reach this issue as we are affirming on other grounds.