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Virginia’s Court of Appeals on bills of particulars, the rule of lenity, and stiff sentencing

Dec 31, 2014 Virginia’s Court of Appeals on bills of particulars, the rule of lenity, and stiff sentencing

Virginia’s Supreme Court and Court of Appeals only occasionally issue published opinions. Yesterday, the Virginia Court of Appeals reiterated the narrowness on criminal defendants’ getting access to bills of particulars, addressed the rule of lenity, and underlined that sexual assailants risk a separate conviction and separate sentence for each act of criminal sexual penetration.

Joseph Louis Paduano was convicted in a non-jury trial for one count of penetrating a thirteen year with an animate object — his finger — after having been previously convicted of carnal knowledge with a child between thirteen and fifteen years old, and for one count of sexual intercourse with the same thirteen year old after having been previously convicted of carnal knowledge with a child between thirteen and fifteen years old. The appellate opinion shows the thirteen year old refusing any such activity with Mr. Paduano. Paduano v. Virginia, ___ Va. App. __ (Dec. 30, 2014).

It goes without saying that Paduano’s actions were not only criminal but sick, and he got sentenced commensurately to twenty years in prison. Had he been charged and convicted under the general rape statute, Paduano would have faced up to life in prison, and plenty of jurors and judges likely would have been very willing to sentence him much more harshly than with the twenty-year sentence he received. In any event, on appeal, Paduano argued that the trial court erroneously denied him a bill of particulars, and erroneously convicted and sentenced him for one rather than two counts.

Criminal defense lawyers are well advised to seek judicial orders for bills of particulars from the prosecution, providing sufficient detail about the alleged crime so that the defendant knows what to defend against. Paduano confirms that no bill of particulars is ordinarily available when the charging document tracks the language of the charged criminal statute, and that “The decisive consideration in each case is whether the matter claimed to be left out of the indictment has resulted in depriving an accused of a substantial right and subjects him to the danger of being tried upon a charge for which he has not been indicted.”

Paduano also asserted that his alleged criminal activity was all part of one course of conduct, and that he should not have faced a conviction and sentence for more than one count. However, the Court confirmed that each act of criminal sexual penetration is a separate crime allowing for a separate conviction and sentence.

Paduano also rejected the defendant’s claim that the applicable statute was unclear about whether he was eligible to be convicted and sentenced on more than one count: "’Only when a "penal statute is unclear" do courts apply the rule of lenity and strictly the statute in the criminal defendant’s favor.’”

The language in Paduano is sickeningly graphic in describing the evidence against him, as is usual in appellate opinions in sexual assault cases. I spiritedly defend all my clients, and they all are presumed innocent unless and until proven guilty beyond a reasonable doubt, but it remains pathetically sad that too many people force sexual activity on others and that too many adults have sex with children.

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