COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Lemons 

Argued at Richmond, Virginia 

GREGORY ANTOINE BROWN 

 MEMORANDUM OPINION* BY 

v. Record No. 2858-97-2 JUDGE DONALD W. LEMONS 

 MARCH 30, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James M. Lumpkin, Judge Designate 

 H. Pratt Cook, III (Robert Cabell and 

Associates, on briefs), for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 Gregory Antoine Brown, a juvenile, was charged with six 

counts of distributing cocaine in violation of Code § 18.2-248. 

After a hearing, a judge of the juvenile and domestic relations 

court transferred Brown to the circuit court to be tried. See

Code § 16.1-269.1(A). When Brown appealed the transfer ruling, a 

judge of the circuit court affirmed the ruling. Following a trial 

and conviction in the circuit court, Brown contends on this appeal 

that the circuit judge abused his discretion in affirming the 

transfer decision. We disagree and affirm the decision of the 

trial court. 
I. 

 Brown was charged with six counts of distributing cocaine to 

his half-brother, a police informant. The distributions occurred 

in November and December 1996, four months prior to Brown's 

eighteenth birthday. In the juvenile court, a probation officer 

filed a transfer report, which indicated that Brown had been found 

guilty of several crimes over the preceding years: assault and 

battery (1996), unauthorized use of a vehicle (1995), and 

possession of a beeper on school property (1993). The report also 

noted that in 1992, a mother's complaint that Brown had assaulted 

her son was resolved at intake. In 1996, Brown failed to complete 

a community service requirement mandated by the juvenile court. 

At the time of the transfer hearing, a charge was pending against 

Brown in juvenile court for brandishing a firearm. The juvenile 

court judge found probable cause on the cocaine charges, made all 

requisite findings, and transferred Brown to the circuit court. 

 On appeal to the circuit court, the trial judge reviewed the 

file from the juvenile court and heard testimony from the 

probation officer. The probation officer testified that, after 

the transfer hearing, the juvenile court had sentenced Brown, who 

was then eighteen years of age, to thirty days in jail for failure 

to complete his community service requirement. In making his 

ruling, the circuit judge found the following: 

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I need to look at the factors set out in 

[Code § 16.1-269.1]. And when you do that, 

you see the Defendant [was] . . . almost 18 

at the time of these offenses. The offenses 

are very serious offenses and it isn't just 

one offense, it's six different offenses 

allegedly on five or six different days or 

time periods. The Defendant has had prior 

contact with the Juvenile Court and has been 

exposed to the Juvenile Court system. 

Obviously not all the alternatives that are 

available, but he has had that exposure. 

Pursuant to Code § 16.1-269.6(B), the trial judge then 

determined that there had been substantial compliance with Code 

§ 16.1-269.1(A) and advised the attorney for the Commonwealth 

that the Commonwealth was authorized to seek an indictment and 

proceed in the circuit court. 

II. 

 Although "the juvenile and domestic relations district 

courts have exclusive, original jurisdiction [pursuant to Code 

§ 16.1-241(A)] over criminal offenses alleged to have been 

committed by a juvenile," Burfoot v. Commonwealth, 23 Va. App. 

38, 45, 473 S.E.2d 724, 728 (1996), a judge of the juvenile 

court may transfer the juvenile to the appropriate circuit court 

"if [the] juvenile [is] fourteen years of age or older at the 

time of [the] . . . alleged offense [and] is charged with an 

offense which would be a felony if committed by an adult." Code 

§ 16.1-269.1(A). The transfer is subject to the factors listed 

in Code § 16.1-269.1(A)(1-4). 

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 When a judge of the juvenile court transfers the juvenile 

to the circuit court, the juvenile may appeal that decision to 

the circuit court. See Code § 16.1-269.4. Upon de novo review, 

it is permissible for the circuit court to review the 

transcripts and written records from the juvenile court, see

Grogg v. Commonwealth, 6 Va. App. 598, 607, 371 S.E.2d 549, 553 

(1988). The circuit court must "determine if there has been 

substantial compliance with [Code § 16.1-269.1(A)], but without 

redetermining whether the juvenile court had sufficient evidence 

to find probable cause." Code § 16.1-269.6(B). Because a 

circuit judge has discretion in making his or her ruling, we 

will not reverse this ruling "absent a showing that [the circuit 

judge's] exercise of discretion has been abused." Kluis v. 

Commonwealth, 14 Va. App. 720, 723, 418 S.E.2d 908, 910 (1992). 

 Among the documents the circuit judge considered was a 

report from the probation officer. In the report, the probation 

officer noted the following: 

Although both the adult and juvenile justice 

systems offer appropriate services and 

dispositional alternatives to address 

[Brown's] problems, it should be . . . noted 

that a number of the juvenile system's 

dispositional alternatives, including 

community service and probation, have 

already been attempted without success. 

Given the serious nature of the alleged 

offenses and the fact that [Brown] will be 

eighteen years of age in the immediate 

future, it is felt that he can not be 

retained long enough in the juvenile justice 

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system for effective treatment and 

rehabilitation. 

* * * * * * * 

If probable cause is found in these matters, 

it is respectfully recommended that 

consideration be given to transferring these 

cases to the Henrico County Circuit Court 

for trial. 

 Brown argues that a fair reading of the probation officer's 

report does not adequately support transfer. Brown reads the 

report as recommending transfer primarily because Brown was 

almost eighteen years old when the alleged crimes occurred. 

Noting that a juvenile may be held until the age of twenty-one 

and that the probation officer's report stated juvenile 

treatment alternatives were available, Brown argues that the 

circuit judge did not give appropriate consideration to the 

availability of treatment within the juvenile system. We 

disagree. 

 The record establishes that several months prior to his 

eighteenth birthday, Brown was charged with six counts of 

distributing cocaine to his half-brother, a police informant. 

Also, over the preceding years, Brown had been found guilty of 

several crimes, including assault and battery, unauthorized use 

of a vehicle, and possession of a beeper on school property. In 

1992, a mother filed a complaint alleging that Brown had 

assaulted her son. At the time of the hearing, Brown was 

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charged with an unrelated offense of brandishing a firearm. He 

had also been jailed because he failed to complete a community 

service requirement mandated by a court order. Brown maintains 

that as long as appropriate services are available in the 

juvenile system, it is error for the court to try him as an 

adult. The law of Virginia is not so restrictive. In 

determining whether Brown was "not a proper person to remain 

within the jurisdiction of the juvenile court," the availability 

of appropriate services in the juvenile system is one of several 

factors that a trial judge must consider. This record does not 

indicate that the trial judge was plainly wrong or without 

evidence to support his ruling. 

 For this reason, and because the evidence proved 

substantial compliance with Code § 16.1-269.1(A), we hold that 

the circuit judge did not abuse his discretion in denying 

Brown's appeal and in authorizing Brown to be tried as an adult. 

Affirmed. 

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Benton, J., dissenting. 

 Although "we should reverse [the trial judge's decision] 

only upon 'clear evidence that [the decision] was not judicially 

sound' and not simply to substitute our 'discretion for that 

rendered below,'" Jefferson v. Commonwealth, 27 Va. App. 477, 

488, 500 S.E.2d 219, 225 (1998), I believe the record 

demonstrates that the judge's decision is plainly wrong. The 

record failed to prove that Gregory A. Brown "is not a proper 

person to remain within the jurisdiction of the juvenile court." 

Code § 16.1-269.1(A)(4). 

 The evidence proved that Brown was seventeen when he 

committed the offenses. Each offense concerned a sale of 

cocaine to his half-brother, who the police sent to buy the 

cocaine on each separate occasion. The record suggests that 

Brown was being improperly influenced by his parent because the 

report indicates that Brown's father was involved with Brown in 

committing the offenses. Thus, the nature of Brown's 

participation in the offenses is somewhat mitigated by the 

corrupt influence of his family. See Code 

§ 16.1-269.1(A)(4)(b)(v). 

 As the transfer report specifically noted, "[t]he offenses 

were not committed in an aggressive or violent manner . . . [, 

and it] is not alleged that the offenses involved the 

brandishing or displaying of a firearm or other dangerous weapon 

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in a threatening manner." Although Brown had previous 

infractions, all of those matters were handled in the juvenile 

court. See Code § 16.1-269.1(A)(4)(e)(i). Prior to the 

distribution of cocaine to his half-brother, Brown had not been 

incarcerated in a juvenile or other correctional facility. See

Code § 16.1-269.1(A)(4)(e)(iii). The record indicates that 

Brown had not previously been placed in a residential or 

community-based treatment program. See Code 

§ 16.1-269.1(A)(4)(e)(iv). The record does not indicate that 

Brown's previous offenses involved the infliction of serious 

bodily injury. See Code § 16.1-269.1(A)(4)(e)(v). Brown had 

not been charged with selling cocaine prior to these sales to 

his half-brother. See Code § 16.1-269.1(A)(4)(e)(vi). The 

record does not indicate Brown has ever absconded from the legal 

custody of a correctional entity. See Code 

§ 16.1-269.1(A)(4)(f). Brown is not mentally retarded or 

mentally ill. See Code § 16.1-269.1(A)(4)(g). The transfer 

report indicates that Brown "has a history of good attendance 

and behavior at school . . . [and] maintain[ed] passing grades 

in most of his subjects." See Code § 16.1-269.1(A)(4)(h). 

These factors tend to favor retaining Brown in the juvenile 

system. 

 Although Brown was under a court order to complete forty 

hours of community service, he had only completed ten of those 

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hours and was scheduled to return to juvenile court on April 4, 

1997, for a review. However, he was arrested on the cocaine 

distribution charges in February 1997 and held without bail. 

While he was in custody, and after the transfer hearing, the 

juvenile court held a hearing on April 4, 1997, and assessed a 

thirty-day jail sentence for failing to complete the community 

service. This is the only commitment on Brown's record. 

 The trial judge appears to have based his ruling in part on 

Brown's "prior contact with the Juvenile Court and . . . 

expos[ure] to the Juvenile Court System." That is an 

insufficient basis to determine that a juvenile is not a proper 

person to remain within the jurisdiction of the juvenile court. 

Clearly, the fact that Brown had not been successful in the 

community service and probation efforts is not a sufficient 

basis to transfer him from the juvenile system. The juvenile 

court has other more severe alternatives available to it. 

Indeed, the trial judge also had before him the transfer report 

which specifically noted that "both the adult and juvenile 

justice systems offer appropriate services and dispositional 

alternatives to address [Brown's] problems." The trial judge 

expressly noted that Brown had not been subject to "all the 

alternatives that are available" in the juvenile system. Thus, 

I believe the trial judge abused his discretion in concluding 

that Brown's prior "exposure" to the juvenile system coupled 

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with the nature of the current charges rendered him "not a 

proper person to remain with the Juvenile Court System." 

 I would reverse the convictions and remand the case to the 

circuit court with direction to remand this matter to the 

juvenile court for proceedings on these charges. 

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