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Treat Virginia sentencing as a final affair

Oct 23, 2013 Treat Virginia sentencing as a final affair

Virginia legal practice is full of formality, starting with the overformality of requiring bar exam takers to wear courtroom attire, offset by requiring shoe soles that do not go clippity-clop on floors, thus permitting the silly clash of athletic shoes against dark suits. How does such a rule enable dressing up in layers and removing layers to adjust to the room temperature for a two-day exam? By the way, my exam locaton, in Norfolk, was at a fully carpeted hotel that made athletic shoes unnecessary to avoid the clippity-clop.

I passed the Virginia bar exam on the first try, when practicing full-time as a trial lawyer, with a 45% pass rate. Having overcome the over-formality of wearing a suit to a bar exam, I was ready to transcend any other formalities of Virginia practice.

Among the starkest formalities of Virginia law practice are treating most key court filing deadlines as jurisdictional, meaning that the particular court loses jurisdiction upon the passage of the deadline, regardless of the reason for missing the deadline, even if for terrible sickness or death, so it remains critical to meet such deadlines well in advance.

Guilty plea and sentencing dates in Virginia need to be treated very seriously  with full advance preparation time. Do not expect the judge nor security personnel automatically to permit a discussion with an incarcerated client on the guilty plea hearing date. Therefore, assure that all guilty plea paperwork is finalized with the prosecutor and fully discussed with, understood and agreed to by the incarcerated defendant well before the guilty plea hearing date. Beware waiting until the guilty plea hearing date to ask to reschedule the plea hearing, only to have the judge offer only one or two dates off in the future when the criminal defense lawyer may no be available, leaving the client locked up during the delay.

Also expect that the judge taking the guilty plea will have only one sentencing date monthly. However, in jurisdictions that do not even reveal the guilty plea judge’s name until the afternoon before the sentencing date, a lawyer does not even have a chance to keep his or her calendar open in advance for a sentencing date until knowing the judge’s name. If the client is locked up pending sentencing, delays to overlap the lawyer’s calendar with the judge’s keep the client locked up longer. The lawyer, therefore, needs to arrange with the client at the time of hiring for the need to address such calendaring issues by such possibilities as having another lawyer handle the sentencing (and being fully prepared for doing so), having the lawyer try to change conflicting court dates in other jurisdictions, or continuing the sentencing date if the lawyer cannot resolve the conflict and if the client insists on having the lawyer s/he hired at sentencing.

In Virginia. the probation officer’s presentencing investigation report may not be filed in time for the defense lawyer to meet the sentencing judge’s deadline for filing sentencing memoranda. Well-drafted and persuasive sentencing memoranda — attaching relevant documentation of participation in case-relevant programs (for instance alcohol and drug education) and community service, any psychological or other evaluations, and any proof of community service — are generally critical to sentencing. Such memoranda give the judge a chance to reflect on the defendant over the course of days rather than making a more split-second decision on the sentencing date. Prosecutors often do not file sentencing memoranda, so the Defendant’s filing such a memorandum can give him or her a leg up on the prosecutor in that sense. By filing the memorandum on the last day for doing so, the prosecutor will be unable to file a timely written response thereto. However, remember also the danger of waiting until the last day to file anything in a Virginia court.

Virginia sentencing modification motions must be acted on before the defendant is sent to the penitentiary, if the penitentiary is a possibility, which is a possibility for sentences not under one year. Virginia’s Court of Appeals highlighted that very strict deadline yesterday, where it nixed a trial judge’s suspension of a defendant’s sentence pending a hearing on his sentence modification motion where the defendant already was in the penitentiary by the time of the modification hearing. Holland v. Virginia, ___ Va. App. ___ (Oct. 22, 2013). Sentencing modification motions should be filed right away against the penitentiary-arrival clock, but such a short time turnaround means the judge is likely to change his or her mind about sentencing in such a short time. The defense lawyer can ask the judge to order the defendant not to be transferred to the penitentiary before a sentence modification motion is held, but the judge is not guaranteed to sign such an order, and if the defendant is inadvertently transferred to the penitentiary despite such an order’s entry, the very transfer to the penitentiary precludes a sentencing modification.

What about a criminal defendant who pleads not guilty in Virginia and proceeds to trial on a felony, appeal to Circuit Court on a trial conviction or a direct misdemeanor indictment in Circuit Court? By default, the trial will be by jury unless both sides waive a jury. If the jury convicts the defendant, the case will immediately proceed to a sentencing hearing before the jury, which will recommend a sentence. The defense lawyer needs to be fully prepared for a sentencing hearng — including having sentencing witnesses available for the possible dates of receiving a jury verdict. After the jury returns a recommended sentence, the judg will set a separate sentencing date, where the judge will have the choice of imposing the recommended setence, reducing the jury’s recommended sentence, or suspending some of the jury’s recommended sentence and imposing a probation length and probation conditions.

Sit in on a sentencing hearing in a Virginia court as busy as the Fairfax Circuit Court, and, depending on the judge, you will see defendants sentenced often to significant incarceration time, probation length (and watch out what happens to suspended time if convicted of violating probation), and probation conditions often in just a matter of a few minutes of a sentencing hearing deciding a human’s future. I tell the court well in advance my sentencing time estimate, because I do my best to have a sentencing hearing of meaningful and persuasive length.

Yesterday I decried the over-caging in America. Today’s blog entry addresses the practicality of trying to minimize the caging risks and lengths.

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