Fairfax plea negotiations- Virginia criminal lawyer on when the judge accepts sentencing agreements or not

Fairfax plea negotiations — and all such dealings in Virginia — are matters for the criminal defense lawyers together with prosecutors / assistant commonwealth attorneys. As a Fairfax criminal lawyer, I know that whether or not to accept sentencing aspects of such Virginia criminal case settlement agreements is the province of the judge. Moreover, if the judge makes clear to a Virginia criminal defendant at the time he advises the accused about the rights they give up when pleading guilt, no contest / nolo contendere, or Alford, that s/he is not bound by the sentencing agreement of the parties, then the defendant is stuck with the sentence that the judge gives.

Why do Virginia criminal defendants engage in plea negotiations in the first place?

Why do criminal defense lawyers and assistant commonwealth’s attorneys / prosecutors engage in Fairfax plea negotiations? Ordinarily, wise parties to both criminal and civil trial litigation determine whether the case can be settled. When criminal defense lawyers take the getting to yes approach of negotiations, settlement negotiations are ordinarily advisable, with the understanding that sometimes the informed decision of the criminal defense client will not be to enter a plea that results in a conviction, but instead to enter negotiations to get the case either immediately or ultimately dismissed, or replaced by an infraction disposition. Virginia criminal defendants are presumed innocent, and have no obligation whatsoever to enter a plea that leads to any other result. Do some innocent people plead guilty, no contest or Alford? Very sadly, yes, after recognizing that they have a high risk for both a conviction and a much worse sentence than involved in the best plea offer extended to date in terms of the count(s) and sentencing range involved.

Is it underhanded for a Virginia criminal defense lawyer to recommend entering Fairfax plea negotiations?

With the understanding that Fairfax plea negotiations can range from pursuing immediate or ultimate case dismissal right up to discussing count(s) to get convicted, a Virginia criminal defense lawyer has an obligation to discuss with his or her client whether and how to approach settlement negotiations, always backed up by trial readiness. Some criminal defense lawyers — rightly or wrongly — get a reputation of being guilty plea lawyers. Prosecutors who see a criminal defense lawyer in that light are not as likely to extend a favorable plea offer to the defense when seeing no trial readiness firepower behind such a defense lawyer’s settlement negotiations. When criminal defendants knowingly hire a lawyer who they correctly know pushes plea deals without being backed up by trial readiness, they are placing themselves in dangerous territory.

Negotiating from the approach of getting to yes and putting the lawyer in the shoes of the opponent

Early in my lawyer career, I interviewed at a civil litigation law firm, where one of the senior partners aptly told me of the importance of engaging successfully in settlement negotiations before proceeding to trial. He underlined that an important component of such negotiations is knowing what the opposing party wants. That is not about doing incantations over a crystal ball, but about frank discussion; deeply listening to the opponents’ words, body language and what is left unsaid; and being honest without revealing information that is either not prudent or not allowed to reveal. Going hand in hand with the latter approach is taking the getting to yes approach to Fairfax plea negotiations, which involves negotiating on goals (for instance “My client’s case negotiating needs to include saving his security clearance”) versus negotiation on positions (for instance where the criminal defense lawyer or prosecutor starts and finishes with a take it or leave it offer).

What if my judge rejects the sentencing agreement reached by my Virginia criminal defense lawyer and prosecutor?

Virginia judges are entitled not to implement sentencing agreements reached in Fairfax plea negotiations (and all Virginia settlement agreements) so long as the judge either (1) makes clear at the time of accepting a guilty, no contest or Alford plea that the judge is not bound by any sentencing agreement between the criminal defense lawyer and the prosecutor or (2) recuses himself or herself from handling the proceedings further unless the parties waive recusal. Virginia Code § 19.2-254; Virginia Supreme Court Rules 3A:8(c)(5), 7C:6(b), and 8:18(d) (with all the foregoing code and rule provisions requiring immediate recusal of the judge upon rejecting the parties plea agreement, unless the parties agree otherwise. A key here is for the record to make clear the aspects of settlement negotiations that the Virginia criminal defense lawyer and prosecutor are making binding on the judge and those that they are leaving to the judge’s discretion. That means, for instance, for the Fairfax General District Court Trial Advisement and Plea sheet (also known as a Blue Sheet) to clearly state what aspects of the sentencing agreement are binding, and to make clear that obtaining a restricted driving license when the sentencing includes a period of driving suspension (for instance with legally mandated loss of driving privileges with a Virginia DUI conviction) is a binding part of the sentence, and not discretionary in the judge, who, when rejecting an aspect of a plea agreement might say that his or her role includes protecting the public when rendering a sentence.

Beware settlement negotiations leaving both parties free to argue sentencing, absent a sentencing cap

Sometimes Fairfax plea negotiations (and Virginia settlement negotiations in general) get no better than one side or the other’s declining to enter a plea agreement, or the negotiations being based on count(s) (for instance reducing a felony count to a misdemeanor count) and omitting negotiations also based on sentencing (whether reaching an agreed sentence or capping the judge to not exceed certain active and suspended jail time and not to exceed other sentencing factors). Everything your Virginia criminal defense lawyer does — whether trial performance, settlement negotiations, or anything else — needs to be with your interests, liberty, reputation, and livelihood in mind, always going for the jugular and knowing how to do that.

Fairfax criminal lawyer Jonathan Katz doggedly pursues your best defense against Virginia felony, misdemeanor and DUI prosecutions. By the time you conclude your initial confidential consultation with Jon Katz, you will feel more confident and knowledgeable about your defenses. Call 703-383-1100 for your free in-person consultation with Jon about your court-pending case.