Fairfax sentencing ruling — if followed — will bar criminal defendants from changing their sentencer choice less than thirty days before trial

Fairfax sentencing — as with sentencing throughout Virginia — is by a judge unless a jury has convicted the criminal defendants, and unless the defendant has filed a written election for a jury sentencing at least thirty days before trial. Virginia Code § 19.2-295. As a Fairfax criminal lawyer, I know that in the best of all possible worlds, the accused in Virginia will choose that sentencing approach by considering the makeup of his jury, who the judge is, and the particulars of the case. However, a Virginia criminal defendant ordinarily will not know more than thirty days before trial who his or her trial judge will be, except for small counties that usually have the same judge, and more involved cases where a judge gets assigned early on. Moreover, the potential juror pool likely will not be made known to litigants less than a month before trial. This week, a Fairfax County Circuit Court judge laid down a bright line that criminal defendants may not change their mind about having a jury sentencing or not, once they are less than thirty days from trial. Commonwealth of Virginia v. Steven Green, FE-2019-802 (Fairfax Circuit Court, July 1, 2022) (Oblon, J.).

Fairfax sentencing ruling pulls rug from under the clever idea of reserving the option to opting out from jury sentencing less than thirty days before sentencing

A Fairfax criminal lawyer endeavored to keep his right open to no longer request judge sentencing,  by simply timely filing a jury sentencing request, and stating therein that the Virginia criminal defendant reserved the option to change his mind. The Fairfax commonwealth’s attorney successfully challenged maintaining the latter decision changing option in this Fairfax sentencing ruling. Green. As a Fairfax Circuit Court letter opinion, Green is non-binding on other judges, but its reasoning is persuasive and clear enough as to likely be replicated in its application by about all Virginia Circuit Court trial judges. Green allows Virginia criminal defendants to change their minds unlimited times about whether to have a jury sentencing or not, so long as that mind-changing stop once the court gets closer than thirty days to the trial date.

Why does Green decline to deviate from the statutory language providing a thirty-day window to choose a Virginia jury criminal sentencing or not?

The Green Fairfax sentencing ruling makes clear that the statutory language is clear on an absolute thirty-day time window for Virginia criminal defendants to opt for a jury sentencing or not. Moreover, Green points out that the practicalities of maintaining this thirty-day time window when considering that jury sentencing affects what is relevant for jury voir dire questioning and when determining whether to strike a potential juror for cause. Also, when a party knows that there will be a jury sentencing proceeding in the event of a conviction, a party may opt for one or more his or her trial witnesses to instead simply be present as sentencing witnesses.

Should I choose a jury sentencing proceeding?

In the light of the Green Fairfax sentencing ruling, Should a Virginia criminal defendant choose a jury sentencing proceeding? Yes if the jury is likely to recommend a sentence lower than the sentencing judge would have set without a jury. No if the jury is likely to recommend a sentence higher than the judge would have without a jury, because many judges will yield fully or partly to the jurors’ “democratic will” for sentencing, based on the Virginia criminal defendant having the sole option whether to seek a jury sentencing proceeding.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. For your free in-person consultation with Jon Katz about your court-pending case, call 703-383-1100 to reserve your appointment with Jon, usually available to schedule for the same or next business day.