Fairfax judging- Sentencing as a gut-wrenching undertaking- Virginia criminal lawyer on this view from the bench

Fairfax judging came into focus last week during the view from the bench continuing legal education program. As a Fairfax criminal lawyer, I did not expect any extraordinary revelations, but was delighted that one of the very experienced Circuit Court judges shared how gut wrenching is felony sentencing. He recommends that Virginia criminal lawyers file relevant sentencing memoranda. For him, such memoranda can plant seeds that stay with him for days right through the sentencing date. I often talk about the benefits of seed planting for persuasion.

Fairfax judging at sentencing is a major undertaking

A federal judge once wrote how sentencing is an easy task for him. Fortunately, fhe foregoing Fairfax judging jurist paints a much more sobering picture, to the point where he mentioned a newer judge who expressed welcoming sentencing as an opportunity to help criinal defendants (I suppose, at least, through imposing relevant probation conditions). The more experienced judge allowed a “we’ll see time period.” Sure enough, after some time passed, the newer judge was no longer as optimistic about the judicial sentencing role. Certainly, Fairfax sentencing hearing dates often involve many defendants being sentenced for crimes ranging from drug felonies to sex crimes and more. A Virginia criminal lawyer needs to make his client’s sentencing decision stand out to the defendant’s benefit.

What should my Virginia sentencing hearing memorandum contain?

Fairfax judging for sentencing can be helped along for the defendant with a sentencing memorandum that persuasively addresses the four main goals of sentencing, those being deterrence, rehabilitation, protecting the public, and punishment. 18 U.S. Code § 3553 makes sense in stating: “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.”  The federal sentencing scheme being no wet noodle, the foregoing approach can be all the more persuasive to argue at a Virginia sentencing proceeding. It is important that the sentencing memorandum show the judge how the defendant has made positive rehabilitative strides, has engaged in relevant self improvement, and has accepted responsitility for his or her actions. The challenge comes when the conviction comes from a trial and the convicted defendant is not ready to express acceptance of responsibility.

Why is acceptance of responsibility a crucial matter from a Fairfax judging perspective?

Acceptance of responsibility is a big deal for Fairfax judging for sentencing purposes, which by itself justifies a guilty plea versus a no contest / nolo contendere plea if the defendant is choosing between the two: “Effective July 1, 2021, if a [Virginia] judge determines at sentencing that the defendant provided substantial assistance, accepted responsibility or expressed remorse, the low end of the Guidelines recommended range will be adjusted. If the calculated low end of Guidelines range is three years or less, the low end of the Guidelines range will be reduced to zero. If the calculated low end of the Guidelines range is more than three years, the low end of the Guidelines range will be reduced by 50%. The midpoint and the high end of the Sentencing Guidelines range will remain unchanged.”

Beware letting the criminal defendant’s heartfelt words get watered down or distorted by the probation officer writing the presentence report

Fairfax judging involving Virginia sentencing commonly includes a judicial order for a presentecing report (PSR) to be produced prior to the sentencing date. The defendant does not necessarily need to await that report before filing a sentencing memorandum, because the defendant can always file a sentencing memorandum supplement that persuasively adresses key parts of the PSR that have not already been addressed in the sentencing memorandu. A centerpiece of a Virginia criminal defendant’s sentencing memorandum will hopefully be the defendant’s heartfelt and honest written statement, addressing such matters as the extent to which the defendant does not recognize the person being sentenced, both based on sincere remores and also the defendant’s self-motivated rehabilitative post-offene strides. The probation officer preparing the senencing memorandum will seek the defendant’s personal statement about the convicted crime. I tell PSR writers early on — when my client so consents — that my client will not be discussing the criminal event with the PSR writer, and instead will address the matter directly wth the judge.

What should I say at sentencing?

If you as a Virginia criminal defendant have drafted a well written and persuasive personal statement for your Fairfax judging, what you say at sentencing will not need to be a rehashing of your written statement, but instead can show the judge the sincerity of your remorse, devotion to ongoing self rehabilitation, and the extent to which your self rehabilitation has helped you, for instance feeling more clarity and self-determination from ending alcohol or drug use and engagin in substance treatment, feeling like you have a new life chapter through completing an anger management program, and feeling greater self esteem by drawing boundaries against repeating past theft activity. Talk to your Virginia criminal defense lawyer, for instance, about the extent to which your written and spoken statements for sentencing address your admission that your actions were wrong, that you are sorry for what you did, and that you will continue on a trajectory of fixing the root cause of your criminal action.

Honestly engaging the judge can go a long way

For the judge to fashion what s/he believes to be a correct sentence for Fairfax judging, s/he will probably want to know what motivated your criminal action. Talk with your Virginia criminal lawyer well before your sentencing hearing how to approach that. To the extent that you will be honest, and are intelligent and well enough spoken your brief oral engagement with your sentencing judge will hopefully at least bring some help to you in showing the judge the extent to which you are well adjusted, and hopefully transform the judge’s previous view of you.

Fairfax criminal lawyer Jonathan Katz is relentless in pursuing your best defense against Virginia DUI, felony and misdemeanor proseutions. Your next step to a great defense starts with meeting with Jon Katz for your free initial in-person consultation with Jon about your court-pending prosecution. To schedule your meeting with Jon, call 703-383-1100, email us at info@BeatTheProsecution.com, or text us at 571-406-7268.