Judicial Rejections of Virginia Plea Deals - Fairfax Lawyer Comments
Judicial rejections of Virginia plea deals is a risk, says Fairfax criminal lawyer
Judicial rejections of plea deals is a risk that people prosecuted in Virginia need to be ready for. As a Fairfax criminal lawyer, I know that a judge cannot reject the existing criminal count to which a defendant enters a guilty or no-contest plea, but can reject any and all of the agreed terms and conditions agreed to by the assistant commonwealth's attorney/prosecutor and Virginia criminal defense lawyer for the sentence. When that offer is rejected, the defendant has the statutory right to proceed before a new judge. The question at that point is whether the prosecutor at that point will keep open the plea deal and whether the new judge will entertain that deal (whether or not the judge accepts the deal).
Will the Virginia prosecutor assigned to my case renew a plea deal that the first judge rejected?
Virginia case law gives prosecutors wide leeway to withdraw (either fully withdraw or offer a new deal) plea deals before the judge accepts the deal unless sufficient prejudice can be demonstrated that calls for enforcing the deal. (Of course, a Virginia criminal defendant cannot be ordered to make specific performance on a plea deal via actually pleading guilty or no contest, because criminal defendants at all times are permitted to plead not guilty and to proceed to trial.) Consequently, with Virginia judicial rejections of plea deals, a Virginia prosecutor is entirely within their right to not agree to present the same plea deal to the next judge. From a practical standpoint, a prosecutor might want to agree to renew the same plea agreement under such circumstances for the very same reasons that the prosecutor agreed to the latter deal in the first instance. On the other hand, the prosecutor's negotiations may have been motivated by who your judge was who rejected the plea deal, and might see the next judge as more prosecution-favorable, and might therefore not renew the deal. Moreover, if the prosecutor thinks the new judge will get perturbed at an effort to get approval of a plea that got rejected by the last judge, the prosecutor might be reluctant to go down that route.
Why does Virginia law permit judicial rejections of plea deals reached by the Virginia criminal defense lawyer and assistant commonwealth's attorney?
Virginia judicial rejections of plea deals are permitted by law 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).
Will my next Virginia criminal court judge accept my original plea deal? My first judge rejected the deal
As a Fairfax criminal lawyer, I see the new judge after the first is recused, as being fully free to accept the original plea deal, if agreed to by the Virginia criminal defendant and the assistant commonwealth's attorney. I have succeeded in this regard. However, the law gives judges wide discretion on most matters as judicial rejections of plea deals so long as that fits within the bounds of the law. Moreover, your Virginia criminal defense lawyer should be ready to explain to the second judge why the law permits him or her to accept a plea deal that the last judge rejected. Nonetheless, I heard a Fairfax County, Virginia, Circuit Court judge recently question whether a judge should accept a plea deal that the previous judge rejected, I suppose, unless there is a change in circumstances that permits doing otherwise. Under such circumstances, there is the option for the criminal defense lawyer and prosecutor to talk about amending the original plea deal enough to call it a new plea deal (for instance, by adding in community service to be performed or restitution to be paid to the alleged victim.
Why should I prepare for trial if I want a plea deal in my Virginia criminal case?
Many Virginia criminal defendants want to reach the best plea deal they can. That might sound counterintuitive to a person who has never been a criminal defendant before. However, many criminal defendants -- even innocent ones -- realize the dice they often roll by proceeding to trial and want a surer thing than that through pursuing the best possible plea deal. However, plea negotiations do not always result in what you, as a Virginia criminal defendant, will find desirable. The saying is true that preparing a case to go to trial makes it more likely to settle, and preparing a case to settle makes it more likely to go to trial. The threat of a strong criminal defense for trial is more likely to yield a favorable plea deal than when the prosecutor knows the defense is not prepared for trial. The foregoing discussion on Virginia judicial rejections of plea deals shows how plea deals can fall through. Always be ready to go to trial as an alternative.
Fairfax criminal lawyer Jonathan Katz pursues your best possible defense with full cunning and caring, backed up by his successful experience defending thousands of people accused of DUI, felony, and misdemeanor crimes. Call 703-383-1100 for your free initial in-person confidential consultation with Jon Katz about your court-pending prosecution.