Cornelius v. Commonwealth

80 Va. App. 29

897 S.E.2d 231

Robert Marshall CORNELIUS

v.COMMONWEALTH of Virginia

Record No. 0187-23-3

Court of Appeals of Virginia, Lexington.

February 13, 2024

FROM THE CIRCUIT COURT OF HIGHLAND COUNTY, Edward K. Stein, Judge

John E. Lichtenstein (Greg L. Lyons; Joanna M. Meyer; Anthony F. Anderson, Roanoke; Brooks A. Duncan; Lichten- stein Law Group PLC; Anderson Legal, on briefs), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges Huff, Malveaux and Chaney

OPINION BY JUDGE GLEN A. HUFF

Following his Alford plea to second-degree murder, Robert Marshall Cornelius ("appellant") was sentenced in January 2019 to 20 years’ incarceration with 10 years suspended.¹ The Highland County Circuit Court ("trial court") committed appellant to the Department of Juvenile Justice ("DJJ") "to serve a portion of this sentence as a serious juvenile offender under Virginia Code § 16.1-285.1[,]" and ordered appellant to serve "the remainder of his sentence as an adult" in the Department of Corrections ("DOC"). Between April 2021 and December 2022, the trial court conducted three review hearings of appellant’s custodial status in accordance with the provisions of Code §§ 16.1-285.1 and -285.2.

Appellant appeals the trial court’s order, issued in January 2023 after his third review hearing, transferring him from DJJ to DOC. Pointing to the uncontroverted evidence of his "wholly positive progress" while committed in DJJ, appellant contends the trial court erred in both failing to grant his motion for release to parole and in transferring him to DOC "to serve the remaining portion of his sentence as an adult." For the following reasons, this Court affirms the trial court’s judgment.

Background²

[1] On September 17, 2017, appellant and his grandmother were home alone while appellant’s parents were away in France. On that day, appellant went walking around his parents’ property and checked on the livestock they kept. While outside, appellant fired a rifle and the bullet passed through a window of the house, striking and killing appellant’s grandmother. Appellant was 14 years old at that time and had no juvenile record whatsoever. He was arrested and charged as an adult for the murder of his grandmother.³ Despite maintaining that the killing was accidental, appellant entered an Alford plea to second-degree murder, in violation of Code § 18.2-32.⁴

The trial court sentenced appellant, on January 17, 2019, to a blended sentence of 20 years’ incarceration, "with 10 years suspended, 10 years to be served by incarceration, and 5 years to be served on supervised probation." In doing so, the trial court expressly ordered appellant to "serve a portion of this sentence as a serious juvenile offender under Virginia Code § 16.1-285.1 until he is 21 years old" and then "serve the remainder of his sentence as an adult." The court then committed appellant to DJJ for 48 months "until his statutory release date of February 18, 2024, at which time he will transfer to the Department of Corrections to serve out the remain[ing 72 months] of his adult sentence."⁵ Appellant was placed at the Bon Air Juvenile Correctional Center ("BAJCC") on February 6, 2019.

In accordance with the provisions of Code §§ 16.1-285.1 and -285.2, the trial court conducted a "two year Serious Offender Review" hearing for appellant on April 28, 2021.⁶ At that hearing, appellant’s "treatment team recommended to the court that [appellant] remain at DJJ" because he had not "taken full advantage of individual counseling in order to develop empathy and address grief regarding the loss of his grandmother." Appellant continued to insist that the shooting was accidental, but the law enforcement agents who investigated the incident "stated that the precision required to shoot through the window and the fact that the shell casing and rifle were found in two different locations made it unlikely that the shooting was accidental."

Investigative records also showed that appellant fled the house after the shooting without calling 911, leaving behind a handwritten apology note that he later claimed was the product of sheer panic.⁷ After driving one of his parents’ cars to the Richmond International Airport, appellant attempted to obtain an airline ticket, initially telling employees that he had permission to travel alone but then changing his story multiple times upon further questioning.⁸ Appellant was ultimately arrested at the airport and police found missing items from the family home in his possession, including appellant’s passport and credit cards belonging to both his father and grandmother. On April 29, 2021, "[a]fter reviewing the progress report of the [DJJ] … and considering the factors set forth in Code § 16.1-285.2[,]" the trial court ordered appellant to continue his commitment in DJJ.

Appellant’s second review hearing was held on December 21, 2021.⁹ At that hearing, appellant’s probation officer advised the trial court "about a potential parole plan that he had created with the [appellant’s] family[,] including services and levels of supervision." He refused, however, to give any "recommendation as to [appellant’s] release or continued confinement." At the end of the hearing, the trial court "took the matter under advisement in order to consider documentary evidence that had been submitted the evening before …. " The next day, after having had the opportunity to consider "all the evidence" and having considered all "the factors listed in Code § 16.1-285.2," the trial court ordered appellant’s continued commitment in DJJ "to serve the remainder of his original commitment."

On December 16, 2022, appellant filed a motion for juvenile parole under Code § 16.1-285.2(E). Highlighting the cognitive differences between juveniles and fully matured adults, appellant asserted that "Juvenile Parole affords many more resources and much more judicial discretion to support the rehabilitative purposes that drive juvenile sentencing." In support of his request for parole, appellant stated the following facts, which were corroborated by documentation from BAJCC:

[he] served a year and a half on home confinement [prior to his conviction] without any issue whatsoever despite the strictest of restrictions. He has no[t yet] served 4 years in juvenile detention …. [He] underwent a massive adjustment with remarkable respect and success at Bon Air, notwithstanding that after his first year, he and the other residents were forced to spend a great deal of time in 23-hour-per-day COVID-19 solitary isolation.

….

During his time at Bon Air, [appellant] has had no aggressive or violent interactions. In fact, he helped staff break up fights on 2 separate occasions, once in which he was injured. A third time, another resident suddenly and without any provocation attacked [appellant], punching him repeatedly in the face, and Bon Air staff who witnessed the attack documented that [appellant] refused to fight and did not hit back or escalate the situation.

Appellant further asserted that the trial court should consider his "reaction to the Court’s denial of his release" after each of the two previous hearings because it showed that he "redoubled his efforts to learn and improve himself through counseling, secondary education, the attaining of his high school diploma, the pursuit of post-secondary educational opportunities, working with the student government at Bon Air, and … helping those around him, both staff and fellow residents."

The trial court conducted appellant’s third review hearing on December 20, 2022, at which it also considered his motion for juvenile parole.¹⁰ Appellant was 19 years old at that time.

The records from his two prior review hearings were included in the case file that the trial court reviewed, including documents related to the Commonwealth’s initial investigation of the shooting and prosecution of appellant as an adult. The latest progress report from DJJ contained copies of those records in addition to an updated risk assessment prepared on October 12, 2022.

Seven witnesses testified on appellant’s behalf, including two BAJCC employees and three individuals who worked with appellant in their therapeutic or psychiatric capacity. Appellant further submitted nine letters from friends, family, and community members in support of his request to be released to juvenile parole. Against the advice of counsel, appellant even submitted a handwritten statement in which he explained that he "chose to do an [Alford] plea because [he] wanted to show everybody, including [his] family, that [he] never intended [his] Grandmother’s death and that [he] was taking responsibility."

Despite presenting no evidence at the hearing, the Commonwealth urged the trial court to transfer appellant from DJJ to DOC. In support of that request, the Commonwealth relied upon the facts of the underlying offense and directed the trial court to consider the "judicial review summary report of risk assessment." After opining that "there can[not] be a sincere acceptance of responsibility without the acceptance of an appropriate punishment[,]" the Commonwealth argued that appellant’s sentence of 10 years active time incarcerated "is an appropriate sentence that takes into account his age then, as well as how he’s progressed over the past three years." Notwithstanding that position, the Commonwealth acknowledged that the trial court "has the option to send [appellant] back to Bon Air" or that, "[i]f the Court wishes to extend something to [appellant], it can reduce the remainder of his active sentence[ ] … in light of his great behavior" during his time in DJJ.

The trial court took two weeks to review the "tremendous amount of written material" involved in the case. In its final order, entered January 3, 2023, the trial court acknowledged that it had "considered all of the evidence, including the progress report submitted by the [DJJ],...