"What are my chances of winning or of no jail?" is a common question potential criminal defense and DWI clients ask me. When they come to me early on for Virginia cases, I have thin information on which to base my reply, although I do still reply. Police reports are not filed with the Virginia courts, other than brief narrative criminal complaints in DWI cases and various other cases — often bare bones and sometimes more detailed than that — and the potential client’s version of events and his or her criminal court history may differ substantially from the police version and nationwide criminal case database (leaving the fact finder and judge to sort out what is accurate) regardless of who has supplied the more reliable information. Nevertheless, with my first meeting with a potential client, I usually have enough information to start addressing potential defenses, defense preparation and potential outcomes, underlining that I will have even more details to provide on defenses, defense preparation and potential outcomes as my work and investigation proceed, including when I learn what is in the police report(s) (which Virginia law does not entitle the defense to see), or, more succinctly, once I learn about my clients’ alleged statements to law enforcement, exculpatory evidence (prosecutors often have a much narrower definition of exculpatory evidence than do I) and my client’s criminal record, and any other information that I obtain independently from witnesses, police and prosecutors, on top of any additional information that police and prosecutors are willing to provide me.

When defending my clients for criminal cases, I take the following three-pronged approach to preparation: prepare for trial and pretrial battle, for settlement negotiations, and for possible sentencing. To do otherwise disserves the client.

Sentencing is a difficult part of the reality of criminal defense. Plenty of my clients avoid a conviction, and thus a sentence, but plenty do get convicted and sentenced. On the federal level, sentencing authority and attorney Alan Ellis tells us that 99% of federal criminal defendants are sentenced and 83% of criminal defendants get incarcerated. Let us bring the United State to being the land of the free and home of the brave, and not land of the cops and home of the caged.

By the conclusion of sentencing, I tell my clients about their options, when they exist, of seeking a sentence modification. In Maryland, such requests must be filed within ninety days, and judges are authorized to hold them in abeyance for a few years, pending the defendant’s showing the extent to which s/he has turned a new leaf. In federal court, sentence modification generally will not happen without the prosecution’s concurrence or with a variance between the written judgment order and the law and what was said by the judge orally at sentencing.

In Virginia, the judge loses the power to modify a sentence once a defendant is in the state prison system unless twenty-one days has not yet passed from the sentencing date — as opposed to the local jail — even if the defendant has been transferred to the penitentiary system by mistake and against the judge’s ruling to keep the defendant in the local jail pending any court order to the contrary. Stokes v. Va., ___ Va. App. ___ (Jan. 15, 2013). The foregoing was bitter poison for Kenneth Stokes, Jr., who rolled the dice by filing both a petition for appeal to the state Court of Appeals (and then sought appellate relief from the state Supreme Court after the Court of Appeals denied relief) after being sentenced to several decades of prison after a felony guilty plea and filing a sentence modification request. The problem was that the trial judge deferred ruling on the sentence modification request until seeing the outcome of the appeal petition (which petition was denied at all appellate levels), and Stokes was mistakenly transferred to the state prison system in the interim.

Of course hindsight is clearer than crystal balling, but Stokes might be slamming his head in misery against his cinderblock cell walls upon recognizing that had he not filed for an appeal, the trial judge — who ruled that he lost authority to modify the sentence upon Stokes’s transfer to prison — probably would not only have reduced his sentence but the prosecutor indicated its consideration to agree to eliminate all of the active portion of his decades-long prison sentence, apparently based on Stokes’s completed and pending assistance with law enforcement against other criminal defendants. In finding he had lost jurisdiction over Stokes’s sentencing modification request, due to Stokes’s transfer to the prison system, the sentencing judge indicated that Stokes ‘would have been entitled to some relief’ because of appellant’s assistance to the Commonwealth in a related criminal case." Stokes. At a hearing on Stokes’s sentence modification motion while Stokes’s petition for relief to the state Supreme Court was pending, the prosecutor suggested to the trial judge: perhaps elimination of the active portion of [appellant’s] sentence Stokes.

Talk about the importance of striking while the iron is hot, considering the prosecutor’s openness to eliminating Stokes’s sentence except for the suspended part of the sentence and probation. Only the shadow knows how Stokes and his lawyer responded to the prosecutor’s interest in such a startlingly favorable sentence reduction, whether or not Stokes’s lawyer by then urged Stokes to withdraw his appeal in order to reduce the risk of his being sent to the prison system before the judge ruled on the sentence modification motion (because the judge was awaiting the result on appeal), and whether the appellate process was initiated more at the behest of Stokes or his attorney.

Stokes is a two-to-one appellate opinion. Dissenting Judge Elder insists:

Stokes (Elder, J., dissenting).

I hope Stokes appeals and wins before the Virginia Supreme Court.