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Beware mandatory minimum sentencing for a substantially similar conviction

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In criminal law, “three strikes and you’re out” refers to severe mandatory minimum jail sentencing, and not baseball, other than that mandatory minimum sentencing, for the defendant, can feel like being slammed on the skull with a baseball bat and smashed in the eye with a high-speed baseball.

A vast number of politicians believe that tough on crime garners more votes than treating criminal defendants as individual human beings entitled to compassion under the law, at least until the public sees the excessive bill for such lengthy incarcerations, to the tune of over $30,000 annually per inmate. At over two million inmates in the United States, that amounts to at least $60 billion dollars annually to incarcerate people.

When a criminal defense lawyer’s client faces potential mandatory minimum sentencing based on prior convictions, early on the lawyer should examine how to dismantle such efforts. Sometimes, the prior conviction is from a state different from the current prosecution, which opens up possibilities to argue that the prior conviction from the other state does not qualify as a predicate conviction for mandatory minimum sentencing.

Today, Virginia’s intermediate appellate court rejected Terry Dillsworth’s efforts to avoid a mandatory five-year minimum prison sentence for possessing a firearm after being convicted of a violent felony. Dillsworth v. Virginia, ___ Va. App. ___ (May 21, 2013). Dillsworth argued that his predicate conviction under Maryland’s first degree assault law was not substantially similar to the Virginia statutory provision that would have qualified as such a predicate offense. Virginia law requires that the out-of-state conviction be for a statute that is substantially similar to a Virginia statute that qualifies for the predicate offense.

In affirming Dillsworth’s mandatory minimum sentence, the Court of Appeals underlined:

As we recently observed, “[k]ey to our analysis . . . is the established principle that a crime in another state is not ‘substantially similar’ to the most closely corresponding crime under Virginia law if the other state’s law ‘permits convictions for acts which could not be the basis for convictions under [the Virginia law at issue].’” Dean, 61 Va. App. at 215, 734 S.E.2d at 676 (quoting Cox, 13 Va. App. at 330-31, 329, 411 S.E.2d at 446, 445) (citation omitted).


Consequently, before a criminal defendant ever pleads guilty to a crime, s/he needs to keep in mind how that conviction will affect not only the defendant’s current liberty, but any future sentencings, as well.