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Contested Sentencing is a Gamble, says Criminal Lawyer Jon Katz

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Contested sentencing in Virginia is a gamble. Unless the criminal defendant and prosecutor enter a plea deal involving an agreed sentence that binds the judge, the only sentencing guarantee is that the judge is prohibited from sentencing beyond the statutory maximum. That is no comfort to the defendant. As a Virginia criminal lawyer, I know the reality of needing to be ready for any possible sentencing, even as I push for all avenues at avoiding a conviction.

Criminal defendants’ chances of winning at trial run from high to low to all points in between. I start with the premise that it is better to proceed to trial than plead guilty, when the conviction and sentencing after a trial conviction is unlikely to be worse than the conviction and sentencing that would apply from the last status of plea negotiations.

The next phase is to engage in forecasting and cost-benefit analysis about whether to proceed to trial or to plead guilty, no contest/nolo contendere, or Alford. These considerations include the likely level of preparedness or not of the prosecutor and his or her witnesses, the availability and strength or not of the prosecutor’s essential witnesses and evidence, and the judge and jury panel who will likely be assigned to the case. As I see it, if a client did commit a crime, s/he took a risk at doing so, and we then engage in risk analysis in deciding whether to proceed to trial or to a negotiated settlement. For criminal defendants who committed no crime, the pressure can feel harder in deciding whether to go to trial or enter a negotiated settlement, seeing that sometimes innocent people get convicted, whether because of false testimony, erroneous connection to evidence, or faulty evidence.

If a Virginia jury convicts a criminal defendant, the jury recommends the sentence. Absent any mandatory minimum sentencing statute, the judge is free to impose the jury’s recommended sentence, reduce some of the recommended sentence, or suspend some of the jury’s recommended sentence. Judges often will resist disturbing a jury’s recommended sentence, reasoning that the jury is a democratic panel of citizens whose voice should be enforced. Countering such a view is that jurors tend to be undergoing on the job training, with limited exposure to sentencing concepts, no sufficient vetting against racial or other unlawfully bias-based decision making, and no access in the jury room to the Virginia advisory sentencing guidelines that the law requires sentencing judges to consider.

Whether sentencing is by a jury’s recommendation or by a judge after a plea or bench trial, the Virginia appellate courts are going to be unlikely to disturb non-capital jail or prison sentencing that does not exceed statutory limits. This month, for instance, in an unpublished decision, the Virginia Court of Appeals underlined that judges and jurors have practically boundless discretion to sentence defendants right up to the maximum incarceration allowed by statute, and quoted the Virginia Supreme Court from 2016 on the matter as follows:

“‘[A] Virginia trial court clearly acts within the scope of its sentencing authority when it chooses a point within the permitted statutory range at which to fix punishment. In cases where the argument on appeal is simply a challenge to the duration of imprisonment, we have consistently held that the sentencing statutes define the outer boundaries of the bell-shaped curve of
reasonableness. Consequently, when a statute prescribes a maximum imprisonment penalty and the sentence does not exceed that maximum, the sentence will not be overturned as being an abuse of discretion. In this respect, our view adheres to the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.'”

Garrett v. Virginia, Record No. 1931-16-1 (unpublished) (Va. Ct. App. Sept. 5, 2017) (quoting Minh Duy Du v. Commonwealth, 292 Va. 555, 564-65, 790 S.E.2d 493, 499 (2016)).

Virginia criminal defense is in many ways like the wild, wild west, where the stakes of going to trial can be very high if there is a conviction. Yes, it is exciting to win at trial. Yes, criminal defendants and their lawyers need the investigation, preparation, dedication and courage to bring cases to trial when a negotiated settlement is not much of a prize, for starters. Yes, the collateral damage of a conviction often makes it worthwhile to go to trial rather than entering a guilty plea. At the same time, any felony conviction in Virginia can lead to harsh sentencing, and plenty of misdemeanor convictions also can lead to substantial sentencing.

Consequently, it is folly at best and damaging at worst to proceed to Virginia criminal court without a qualified lawyer.

Fairfax criminal lawyer Jon Katz is a battle-tested criminal defense veteran lawyer, having defended thousands of clients in criminal court and having taken hundreds of cases to trial. For a confidential consultation with Jon about your case, please call his staff at 703-383-1100.