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Probation is no prize, so beware its role in sentencing

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Many criminal defendants wanting to avoid active jail time breathe a sigh of relief when they get no active jail but instead probation.

Probation, though, is no prize, even if preferable to active jail time. Of course, the goal is to avoid getting probation at all by winning the case or obtaining a dismissal, but the reality for most criminal defense lawyers is that not all their clients will avoid being convicted and receiving sentences that include probation.

In the Virginia state trial courts, a criminal defendant faces possible probation in the event of being convicted. A Virginia criminal defendant also faces possible probation in the event of entering into a disposition of facts sufficient to find guilt, whereby the case gets dismissed after successful completion of probation, and if the court later finds a probation violation, the court can enter a guilty verdict and sentence the defendant up to the maximum penalty allowed by statute, thus waiving and bypassing any trial right.

In deciding whether to accept a guilty, no contest (also known as nolo contendere) or facts sufficient disposition, the criminal defendant should include consideration of the following as to probation, and should also consider the following if convicted in a non-jury/bench trial:

  • Consider negotiating or advocating for no probation or for short probation. One year is a common Virginia misdemeanor probation length, but in numerous instances I avoid a probation period at all. With DWI convictions, a probation period is to be expected.
  • Unless a substitute judge, the sentencing judge usually will preside at any probation violation hearing. The criminal defendant and his or her lawyer want to consider the desirability or not of having that judge (or the judge who is being substituted for) for a probation violation hearing. Will that judge render a fair and correct ruling, based on the evidence and law, on whether probation has been violated? Will the judge sentence excessively?
  • Avoid supervised/active probation whenever possible, in favor of unsupervised/inactive probation. Supervised and active probation gets a probation agent involved. Probation agents are permitted to make lawful orders to probationers on conducting their lives and doing any treatment or other programs while on probation. Probationers are required to visit their probation agents, often at the convenience of the agent’s calendar without sufficient regard for the probationer’s work schedule. For those convicted of sex offenses, probation agents might require polygraph tests about the probationer’s activities while on probation. Drug testing is common for drug probation cases. A new criminal charge while on probation is more likely to be caught while on active rather than inactive probation. Probation agents at best cramp probationers’ style and at worst are probationers’ nightmare.
  • Keep the terms and conditions of probation as few and as unoppressive as possible.
  • Will the judge rubber-stamp any mutually-agreed sentence of the parties, or impose a harsher sentence, in terms of active or suspended incarceration length, probation length, fine, and terms and conditions of probation?

How does a Virginia criminal defendant violate probation? That can happen by violating the specific terms and conditions of the sentence (for instance not timely paying fines and costs, and driving outside of one’s restricted license after a DWI or drug conviction), violating the lawful directives of the probation agent, and violating the mandate of being of general good behavior.

Unfortunately, general good behavior does not seem to be sufficiently defined in the statutory nor caselaw. At minimum, it means not violating the criminal law while on probation. However, how will a probation judge treat traffic infraction guilty findings (through court proceedings or paying on the infraction charge before court) or probation agent claims of not adequately participating in alcohol education classes or other sentence-mandated programs, beyond simply showing up for each program session?

How will sentencing judges treat unadjudicated criminal charges received while on probation? Will the judge incarcerate the defendant pending his or her probation violation hearing, with or without a bond being set? Will the probationer be arrested on a probation violation arrest warrant, not receive a reasonable bond from the magistrate, and wait for a bond hearing before a judge on a later date?

What is the penalty for violating probation? After a probation violation finding, the sentencing judge may impose part or all of the balance of the probationer’s suspended sentence and suspended fine, can extend the probation period, and can impose new conditions for any remaining probation period.

If a defendant is convicted for violating probation in Virginia District Court, the defendant may appeal within ten calendar days for an all-new probation violation hearing in Circuit Court. Of course, all governing procedures should be followed for filing an appeal, including that when the tenth day falls on a weekend or federal holiday, that does not entitle filing for an appeal on the next available business day.

If the probationer receives any active jail time in District Court for the probation violation finding, s/he should ask the court to keep the probationer out of jail pending any appeal, with personal recognizance or an appeal bond. The probationer has the option to withdraw the appeal up to one business day before the probation violation hearing in Circuit Court, and once again needs to follow the governing procedures for doing so.

When appealing a Virginia District Court probation violation conviction, the probationer needs to know that the District Court probation violation sentence does not set a ceiling nor floor on the possible sentence in Circuit Court if a probation violation is found in Circuit Court.

When a jury convicts a Virginia criminal defendant (whether through indictment or an appeal from a District Court conviction), the jury recommends the sentence, but only in terms of the jail length and fine amount; the jury cannot recommend a probation period, a suspended sentence, nor any terms and conditions of probation. The judge may reduce and/or suspend some or all of the jury’s recommendation for the jail length and fine amount, and can put the defendant on probation as to any  suspended jail and suspended fine amount; however, beware when judges are partial to respecting the jury’s so-called democratic will, and then do not disturb the jury’s recommended sentence.

Defendants convicted in District Court with a significant suspended sentence may wish to appeal if they expect they will not do worse or much worse with the jury, when partly considering the possibility that any resulting suspended sentence in Circuit Court with a jury might be less than in District Court. However, juries can be crap shoots, as can criminal appeals to Circuit Court in general.

When a probationer is charged with violating probation, the probationer’s lawyer should look closely at the language of the probation violation report and the order(s) from the court and probation agent governing the terms and conditions of probation. The probationer’s lawyer should examine the extent to which the probation violation report does not state a possible probation violation at all (see White v. Com. (Va. S. Ct., Oct. 31, 2008)), and the extent to which any probation terms and conditions issued by the sentencing judge or probation agent do not have force and effect. The defense lawyer should consider the legitimacy of the original conviction and sentence as well, including whether the record sufficiently establishes that the defendant freely and knowingly waived a lawyer (if the defendant had no lawyer when convicted) and that the defendant freely and knowingly entered any guilty or no contest plea.

From a practical standpoint, when one is on probation, the probationer should avoid any harmful radar of the probation agent, by such means as always appearing on time for meetings with the probation agent and at any programs required as probation conditions; by getting the agent’s advance permission to change any meetings with the probation agent, and getting the agent a written confirmation of that permission; by contacting the probation agent (and the agent’s supervisor if necessary) if the agent has not contacted the probationer for several weeks about any requirement to visit the probation agent for a next time (and getting the agent and the agent’s supervisor written confirmation of that as well); and by being particularly vigilant against doing anything that might risk an arrest while on probation, including but not limited to staying away from people smoking marijuana or using/possessing other illegal drugs, and not risking arrests even for something non-jailable like being intoxicated in public (which also applies to being intoxicated in bars or other enclosed “public” establishments, and which conviction is risked even if not actually intoxicated but with alcohol in one’s system).

Probation is no prize.