RAHEEM CHABEZZ JOHNSON v. COMMONWEALTH OF VIRGINIA

On April 11, 2011, Johnson shot and killed Timothy Irving. At the time, Johnson was

two months short of his eighteenth birthday. On June 1, 2011, Johnson was indicted on eight

felonies, including capital murder. After his indictment but before trial, the United States

Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012). As a result, the

Commonwealth amended the indictment to reduce the capital murder charge to first degree

murder. A jury subsequently convicted Johnson of all eight felonies.

The trial court ordered a presentence report and continued the matter for sentencing. On

August 3, 2012, Johnson moved to have Joseph Conley, Ph.D. (“Dr. Conley”), a

neuropsychologist, appointed at the Commonwealth’s expense, to serve as an expert to assist in

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the preparation for his sentencing hearing. In his motion, Johnson noted that Dr. Conley had

“devoted his practice to the study of the maturation of the brain and its functioning.” Johnson

argued that Dr. Conley would “provide relevant facts specific to Raheem C. Johnson so as ‘to

fully advise the court’ of all matters specific to Raheem C. Johnson and allow the fashioning of a

sentence in compliance with the 8th Amendment to the United States Constitution.”

At a hearing on the matter, Johnson argued that Dr. Conley’s assistance was necessary

because the probation officer charged with compiling the presentence report “does not have the

ability to collect the necessary details about what is happening within [Johnson’s] mind, how

[Johnson’s] mind has developed.” Johnson asserted that Dr. Conley’s “facts or unique abilities”

would allow him to develop “other relevant facts needed to individualize the punishment that

[the trial court] is going to have to mete out.” In response, the Commonwealth stated that

Johnson had not demonstrated the requisite particularized need to have Dr. Conley appointed at

the Commonwealth’s expense because it was “common sense” that a juvenile is less mature than

an adult. The Commonwealth also noted that Johnson was not facing life without parole because

Johnson would be eligible for geriatric parole at age 60.

After considering the matter, the trial court denied Johnson’s motion. The trial court

noted that nothing in Johnson’s record supported his position that such an evaluation was

needed. It further stated that Johnson had not shown a particularized need because, in the trial

court’s opinion, Miller did not require such an evaluation in every case where the accused was a

juvenile at the time of the offense.

Prior to sentencing, Johnson submitted four articles that discuss brain development and

legal culpability. At the sentencing hearing, the trial court acknowledged that it had read the

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articles Johnson submitted and considered them along with the presentence report and Johnson’s

school records. After hearing argument from the parties, the trial court stated:

Mr. Johnson, in this case we had a helpless victim, the shooting was unprovoked, and it was cruel and callous. It was just mean. It was, it’s as cruel and callous as anything I’ve seen since I’ve been sitting here on the bench, and that’s been awhile. Just totally unnecessary to put a bullet in this young man’s head. The trial court then proceeded to sentence Johnson to life in prison for the first degree

murder charge plus an additional 42 years for the other seven charges.

Johnson filed a motion to reconsider, arguing that the trial court failed to properly

consider the articles he submitted and the Supreme Court’s ruling in Miller before imposing

Johnson’s sentence. Johnson further asserted that, by imposing a life sentence, the trial court

ignored the fact that, statistically, geriatric parole was not a realistic opportunity to obtain early

release. The trial court denied the motion without a hearing.

In a letter opinion, the trial court explained that it imposed a life sentence “after careful

consideration of [Johnson’s] individual characteristics as reflected in the record, including

without limitation the presentence report and school records.” The trial court also reiterated that

it had reviewed the articles Johnson submitted. The trial court noted the “horrendous nature of

the crime” and determined that Johnson’s “history of disrespect for authority and aggressive

behavior which, coupled with the brutality of the offense, make [Johnson] . . . a danger to

himself and others should he be returned to society.”

Johnson appealed the trial court’s refusal to appoint a neuropsychologist and its decision

to impose a life sentence to the Court of Appeals. The Court of Appeals denied Johnson’s

petition for appeal with regard to the denial of his motion for a neuropsychologist, but granted

his petition with regard to the sentence imposed. In a published opinion, the Court of Appeals

subsequently determined that, because a sentence of life did not exceed the statutory maximum

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penalty for first-degree murder, the trial court had not erred. Johnson v. Commonwealth, 63 Va.

App. 175, 182-85, 755 S.E.2d 468, 471-73 (2014). The Court of Appeals further held that,

because Johnson was not facing a mandatory life sentence, Miller did not apply. Id. at 183-84,

755 S.E.2d at 472.

Johnson appeals.

II. ANALYSIS

On appeal, Johnson argues that the Court of Appeals erred in refusing to consider his

appeal related to the trial court’s denial of the motion for the appointment of a neuropsychologist

on his behalf at the Commonwealth’s expense. Additionally, he asserts that, under Miller, the

Court of Appeals erred in affirming the trial court’s decision to impose a life sentence because he

was not afforded the opportunity to present evidence regarding youth and its attendant

consequences.

A. Motion for a Neuropsychologist

Johnson contends that the trial court erred in denying his motion for the appointment of a

neuropsychologist on his behalf at the Commonwealth’s expense because he demonstrated a

particularized need for the services of a neuropsychologist. Johnson asserts that he demonstrated

the requisite “particularized need” established by this Court in Husske v. Commonwealth, 252

Va. 203, 476 S.E.2d 920 (1996). He also relies on the fact that Code § 19.2-299(A) requires that

a presentence report include “other relevant facts.” Johnson claims that evidence relating to his

physiology or psychology were such “other relevant facts.” Thus, according to Johnson, even in

the absence of showing a particularized need, the services of a neuropsychologist were necessary

to provide a complete presentence report. He further asserts that such evidence was necessary to

allow the trial court to “tailor” the punishment to him. We disagree.

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This Court has recognized that, upon request, the Commonwealth is required to “provide

indigent defendants with ‘the basic tools of an adequate defense.’” Husske, 252 Va.at 211, 476

S.E.2d at 925 (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). However, “an indigent

defendant’s constitutional right to the appointment of an expert, at the Commonwealth's expense,

is not absolute.” Id. Rather,

an indigent defendant who seeks the appointment of an expert witness, at the Commonwealth's expense, must demonstrate that the subject which necessitates the assistance of the expert is “likely to be a significant factor in his defense,” and that he will be prejudiced by the lack of expert assistance. An indigent defendant may satisfy this burden by demonstrating that the services of an expert would materially assist him in the preparation of his defense and that the denial of such services would result in a fundamentally unfair trial. The indigent defendant who seeks the appointment of an expert must show a particularized need . . . . Id. at 211-12, 476 S.E.2d at 925 (quoting Ake, 470 U.S. at 82-83).

Furthermore, “[w]hether a defendant has made the required showing of particularized

need is a determination that lies within the sound discretion of the trial court.” Commonwealth v.

Sanchez, 268 Va. 161, 165, 597 S.E.2d 197, 199 (2004) (citing Husske, 252 Va. at 212, 476

S.E.2d at 926, and other case authority). “A particularized need is more than a ‘mere hope’ that

favorable evidence can be obtained through the services of an expert.” Green v. Commonwealth,

266 Va. 81, 92, 580 S.E.2d 834, 841 (2003) (quoting Husske, 252 Va. at 212, 476 S.E.2d at 925

26). In the present case, Johnson admitted that he sought the services of a neuropsychologist

because there was no other evidence regarding his physiology or psychology. In other words,

Johnson sought the assistance of an expert at the Commonwealth’s expense with no idea what

evidence might be developed or whether it would assist him in any way. At best, Johnson’s

request for a neuropsychologist amounted to a mere hope that favorable evidence would be

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obtained. Thus, it cannot be said that Johnson demonstrated a particularized need for the

assistance of a neuropsychologist.

Johnson next argues that, under Code § 19.2-299(A), he was entitled to the appointment

of a neuropsychologist independent of any showing of a particularized need. Code § 19.2

299(A) states that, upon a finding of guilt, a trial court may (or, under certain circumstances,

shall) direct a probation officer to

thoroughly investigate and report upon the history of the accused, including a report of the accused’s criminal record as an adult and available juvenile court records, any information regarding the accused’s participation or membership in a criminal street gang as defined in § 18.2-46.1, and all other relevant facts, to fully advise the court so the court may determine the appropriate sentence to be imposed. Id. (emphasis added).

Nothing in the plain language of Code § 19.2-299(A) specifically requires a probation officer to investigate a defendant’s current physiology or psychology.1 Indeed, the statute

expressly limits the subject of the probation officer’s investigation and report to “the history of

the accused.” Id. (emphasis added). When read in context, it is clear that the phrase “all other

relevant facts” is used to describe additional historical information that may be relevant to the

probation officer’s investigation and report.

Thus, it is clear that Code § 19.2-299(A) does not envision the appointment of a

neuropsychologist to augment the presentence report. That said, however, if information

regarding a defendant’s physiology or psychology exists in a defendant’s history, that 1 Notably, Code § 19.2-299(A) only describes the investigation that must be conducted by the probation officer and the contents of that probation officer’s report. Although the statute provides a defendant with an opportunity to “present any additional facts bearing upon the matter,” such an opportunity only arises after the probation officer has completed his investigation and submitted his report. Similarly, the statute is silent on the manner in which such facts may be developed.



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information might well be included as “other relevant facts” in the presentence report.

Moreover, such information could be used as part of the showing necessary to demonstrate a

“particularized need” under Husske or presented as “additional facts bearing upon the matter” in

response to the presentence report. See Code § 19.2-299(A). Accordingly, the trial court did not

abuse its discretion in denying Johnson’s motion for the appointment of a neuropsychologist at

the Commonwealth’s expense and the Court of Appeals did not err in upholding this determination.2

B. Life Sentence

Johnson next argues that the trial court erred in sentencing him to life in prison. Relying

on the Supreme Court’s decision in Miller v. Alabama, Johnson claims that, because he was still

a juvenile on the date that he committed the crimes, the trial court was required to consider the

psychological differences between adults and juveniles before imposing a life sentence. Johnson

further contends that, in the absence of such consideration, the sentence imposed by the trial

court was not individualized and, therefore, violated the Eighth Amendment. However, we

conclude that Miller is inapplicable to the present case. Therefore, the trial court did not err.

In Miller, the Supreme Court held that a sentence of “mandatory life without parole for

those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition

on ‘cruel and unusual punishments.’” 132 S.Ct. at 2460. However, by its plain language, Miller

only applies where a juvenile offender is sentenced to a term of life without parole. Notably, the

Supreme Court’s analysis in Miller is founded, in part, on the notion that sentencing a juvenile to

2 Johnson also asserts that the Supreme Court’s decision in Miller further demonstrates the requisite “particularized need.” However, as discussed below, Johnson’s reliance on Miller is misplaced and, therefore, we need not address whether the applicability of Miller to a specific case can provide a “particularized need” under the proper circumstances.



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life in prison is a disproportionate sentence because a juvenile sentenced to life without parole is

analogous to capital punishment. Id. at 2466. In contrast, “[a]llowing those offenders to be

considered for parole ensures that juveniles whose crimes reflected only transient immaturity—

and who have since matured—will not be forced to serve a disproportionate sentence in violation

of the Eighth Amendment.” Montgomery v. Louisiana, 136 S. Ct. 718, 736 (2016). Indeed, it is

particularly telling that the remedy for a Miller violation is to “permit juvenile homicide

offenders to be considered for parole.” Id. Thus it is clear that Miller does not apply when a

juvenile offender has the opportunity to be considered for parole.

In Angel v. Commonwealth, 281 Va. 248, 275, 704 S.E.2d 386, 402 (2011), we held that the possibility of geriatric release under Code § 53.1-40.013 provides a meaningful opportunity

for release that is akin to parole. As Johnson was convicted of a Class 2 felony, he will be

eligible for geriatric release under Code § 53.1-40.01 when he turns 60 in 2053, in which case

the possibility exists that Johnson’s sentence of life imprisonment will convert into a sentence of approximately forty years.4 Thus, it is readily apparent that, under this Court’s jurisprudence,

3 Code § 53.1-40.01 states: Any person serving a sentence imposed upon a conviction for a felony offense, other than a Class 1 felony, (i) who has reached the age of sixty-five or older and who has served at least five years of the sentence imposed or (ii) who has reached the age of sixty or older and who has served at least ten years of the sentence imposed may petition the Parole Board for conditional release. The Parole Board shall promulgate regulations to implement the provisions of this section. 4 While Johnson makes much about the low statistical probability of release under Code § 53.1-40.01, we find his argument to be, at present, speculative because the statistical data Johnson relies on does not include juvenile offenders. Indeed, as has been recently noted,



The geriatric release program was not implemented until 1994. See 1994 Acts (Sp. Sess. II) 1, 2 (enacting Code § 53.1-40.01). A hypothetical 17-year old sentenced to a life sentence or a de facto life sentence in 1995 will not be eligible for geriatric release until

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Johnson was only sentenced to life in prison; he was not sentenced to life without parole.

Accordingly, Johnson’s reliance on Miller is misplaced.