FROM THE COURT OF APPEALS OF VIRGINIA.
W. Andrew Harding (Anne M. Mauldin Convy; Convy & Harding, on briefs), for appellant.
Stuart A. Raphael, Solicitor General (Mark R. Herring, Attorney General; Donald E. Jeffrey, III, Senior Assistant Attorney General; Steven A. Witmer, Senior Assistant Attorney General; Katherine Q. Adelfio, Assistant Attorney General; Matthew R. McGuire, Assistant Attorney General; Trevor S. Cox, Deputy Solicitor General, on brief), for appellee.
Amicus Curiae: Juvenile Law Center (Marsha Levick; Craig S. Cooley, on brief), in support of appellant.
OPINION BY JUSTICE D. ARTHUR KELSEY. JUSTICE MIMS, with whom JUSTICE GOODWYN joins, concurring.
PRESENT: All the Justices
D. ARTHUR KELSEY,
Darien Vasquez and Brandon Valentin, two sixteen-year-old males, broke into the townhouse of a college student, raped her at knifepoint, and threatened to kill her if she resisted. They also committed a host of other crimes before leaving the victim's townhouse. The trial court convicted Vasquez of eighteen felonies and Valentin of twelve felonies.
On appeal, Vasquez and Valentin claim that the aggregate term-of-years sentences imposed by the court violated the Eighth Amendment's prohibition of cruel and unusual punishment. They also contend that the evidence was insufficient to establish that either one of them possessed a knife at the time of the break-in. On both contentions, we disagree and affirm.
On appeal, we review the evidence in the " light most favorable" to the Commonwealth, the prevailing party in the trial court. Bowman v. Commonwealth, 290 Va. 492, 494, 777 S.E.2d 851, 853 (2015) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)). " Viewing the record through this evidentiary prism requires us to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.'" Id. (quoting Kelley v. Commonwealth, 289 Va. 463, 467-68, 771 S.E.2d 672, 674 (2015)).
The victim, a female college student, lived in an off-campus townhouse with two housemates. One evening in October 2012, both of the victim's housemates were out of town, and she had gone to bed feeling sick. Vasquez and Valentin broke in through a window of the townhouse carrying backpacks, one of which contained a " wolf knife." J.A. at 403. They began stealing property belonging to the victim's housemates. They then entered the victim's bedroom. She awoke as Vasquez held a large knife to her throat. Valentin stood by the bedroom door, also holding a knife, and blocked the exit. Vasquez demanded cash. When the victim said she had none, Vasquez stated, " [W]ell then you're going to die." Id. at 121. The victim pleaded with them to take her wallet, credit cards, and a game console. Pressing the knife to her back, Vasquez led the victim around the bedroom to retrieve these items. After collecting the victim's belongings, Vasquez ordered her to undress. He then pushed her to the floor and demanded that she " suck him off," or he would kill her. Id. at 123. She complied. As Vasquez forced her head down, she began choking.
After a few minutes, Vasquez put the knife again to her back and pushed her to the bed. With the knife " right in front of me," the victim testified, Vasquez raped her. Id. at 125. He later demanded she also have sex with Valentin. Vasquez directed her to " suck him off again" while Valentin attempted to penetrate her from behind. Id. at 127. While the victim performed fellatio on Vasquez for a second time, Valentin unsuccessfully attempted to penetrate her anus and vagina from behind. During this attempt, Valentin threatened the victim, saying, " [D]on't turn around, I'll kill you if you turn around." Id. at 128.
At some point, Vasquez got up and left the bedroom. Valentin closed the bedroom door and locked it, leaving the victim alone with him. While displaying his knife, Valentin pushed the victim back on the bed and raped her vaginally. Vasquez returned to the bedroom, led the victim to the bathroom at knifepoint, and made her perform fellatio on him a third time. He repeatedly struck her in the head with the blunt end of the knife and slapped her in the face. Vasquez then said he wanted anal sex. He ran his knife across her back and along her flank area. Vasquez attempted to rape her anally but could not successfully penetrate. Valentin watched from the doorway, continuing to block any attempt by the victim to escape.
Vasquez thereafter led the victim through other rooms of the townhouse looking for more things to steal. As Valentin took stolen property out through a window, Vasquez once again forced the victim to perform oral sex on him. He forcibly pushed his penis into her throat, choking her for several minutes. Vasquez afterwards turned her around and raped her anally with his penis and with another object.
Still armed with a knife, Vasquez then pulled the victim toward the window and told her that she would have to leave with them. Valentin pushed Vasquez away from the victim. Before leaving, Vasquez approached the victim with the knife, " jab[bed] it at [her] stomach," and warned her that they would " come back with thirty guys and kill [her]" if she called the police. Id. at 138.
Police arrested Vasquez and Valentin that same night. They had in their possession the property stolen from the townhouse. They made various self-incriminating statements to the police and made similar inculpatory remarks to each other. Valentin admitted to breaking into the townhouse, stealing property, and raping the victim at knifepoint. " What fun is raping a bitch," he said, " and running?" Id. at 314. Reflecting on the episode, Valentin concluded: " We're sixteen and we're getting tried as an adult [sic]. Should have killed that bitch." Id. at 318-19. Vasquez also confessed to the sexual crimes. Concluding that he would likely be found guilty, Vasquez said he would simply " apologize for it." Id. at 319.
The juvenile and domestic relations court transferred the prosecution of both defendants to the circuit court, where the grand jury returned twenty-two felony indictments against Vasquez and seventeen against Valentin. At their joint trial, Vasquez and Valentin made various motions to strike. One of their arguments, relevant to the armed-with-a-deadly-weapon element of the indictments for breaking and entering, was that the evidence was insufficient to prove that either Vasquez or Valentin possessed a knife at the time they entered the townhouse. They asserted " an alternate hypothesis of innocence that all the knives involved . . . were acquired . . . once the two parties went into the apartment in general." Id. at 409. The trial court denied most of the motions to strike and found Vasquez guilty on eighteen indictments and Valentin guilty on twelve.
The trial court ordered the preparation of presentence reports and victim-impact statements. At the sentencing hearing, the trial court received extensive information addressing the brutality of the crimes and their effect on the victim. The court also learned that Vasquez was on juvenile probation at the time of the offenses and that, in the weeks prior to these crimes, Valentin had committed multiple other nighttime break-ins of other occupied homes.
The trial court rejected the suggestion that the crimes were in any way unplanned or spontaneous. " These were each individual crimes," id. at 620, the court explained, committed at knifepoint by two " young predator[s]" in a " careful and calculated" manner over an extended period of time, id. at 619. The court stated that it considered Vasquez to be slightly more culpable than Valentin, but both were guilty of " absolutely heinous criminal acts." Id. at 628. The court also considered Valentin's lack of genuine remorse, evidenced by his post-arrest conversation showing Valentin " laughing" with Vasquez about their crimes and musing that it would have been better if they had just " killed the fucking bitch." Id. at 319, 629.
At the conclusion of the hearing, the court imposed multiple term-of-years sentences, which, in the aggregate, equaled 283 years for Vasquez, with 150 years suspended, and 148 years for Valentin, with 80 years suspended. The suspended sentences reduced the active incarceration time to 133 years for Vasquez and 68 years for Valentin.  Between the two defendants and their total of thirty convictions, each conviction received an average of 6.7 years of active incarceration.
Vasquez and Valentin filed petitions for appeal with the Court of Appeals, challenging the constitutionality of their sentences and the sufficiency of the evidence supporting their convictions for breaking and entering while armed with a deadly weapon. In per curiam orders, the Court of Appeals denied Vasquez's petition in its entirety and denied Valentin's petition regarding issues before this Court. We awarded an appeal to both defendants, consolidated their cases for decision, and now affirm the Court of Appeals.
A. Cruel & Unusual -- Aggregate Term-of-Years Sentences
Vasquez and Valentin argue on appeal, as they did in the trial court, that their sentences should be judicially declared cruel and unusual under the Eighth Amendment to the United States Constitution. The United States Supreme Court has developed " two strands of precedent" to determine whether a criminal sentence is unconstitutionally disproportionate. Miller v. Alabama, 567 U.S. __, __, 132 S.Ct. 2455, 2463, 183 L.Ed.2d 407 (2012). The first is a " categorical" approach, fixing bright lines that limit criminal sentences " based on mismatches between the culpability of a class of offenders and the severity of a penalty." Id. The second is a " case-by-case approach," Graham v. Florida, 560 U.S. 48, 77, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), that focuses specifically on " all the circumstances in a particular case," id. at 59.
In 2005, the Supreme Court commenced a trilogy of decisions adopting three categorical prohibitions for criminal offenders under the age of eighteen. First, no matter the severity of the crime, " [t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Second, the Eighth Amendment " prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide." Graham, 560 U.S. at 82. " A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term." Id. Finally, the Court held that " mandatory life-without-parole sentences for juveniles violate the Eighth Amendment." Miller, 567 U.S. at __, 132 S.Ct. at 2464; see also Montgomery v. ...