12.1 Authority to Sentence

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

12.1 AUTHORITY TO SENTENCE

12.101 Jury Trials.

A. In General. The Virginia Constitution guarantees the right to a jury trial in criminal cases. ¹ By statute, the jury is given the power to sentence the accused. ² Virginia is one of the few states in which the right to a jury trial includes the right to have a jury determine punishment in addition to guilt or innocence. ³ However, to be sentenced by a jury, the defendant must plead not guilty and demand a trial by jury on the issue of guilt. If the defendant pleads guilty or waives his or her right to a trial by jury, a jury cannot be impaneled solely to consider and impose a sentence. ⁴ Section 19.2-295 of the Virginia Code states that "the term of confinement . . . and the amount of fine, if any, of a person convicted of a criminal offense, shall be ascertained by the jury." Since this provision uses the word "shall," the imposition of a sentence by the jury trying the case is mandatory. ⁵

Before 1994, sentencing in jury trials was done by the jury in a unitary trial. After 1994, criminal trials became a bifurcated process. The

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jury determines the finding of guilt first. When a person is convicted of a felony or a Class 1 misdemeanor by a jury, the sentencing hearing is held before that same jury and as soon as practicable after the trial on guilt. ⁶ If the defendant is charged with a felony or a Class 1 misdemeanor and is convicted only of a misdemeanor other than a Class 1 misdemeanor, the sentence is fixed by the jury without a separate sentencing hearing. ⁷

Although the jury renders a sentence, it is a recommendation, not a final imposition of sentence. Because juries may sentence only "[w]ithin the limits prescribed by law," ⁸ they are not allowed to suspend a sentence or grant probation. ⁹ A jury is also prohibited from recommending that the judge suspend the sentence or place the defendant on probation. ¹⁰ If it does, the court is not bound to follow its recommendation; "the propriety of such a request may recommend itself to the trial judge," and he or she may act upon it or disregard it entirely in his or her discretion, but it is not binding upon the judge. ¹¹ Furthermore, the jury is not given access to the discretionary sentencing guidelines. ¹²

Although a jury has the power to nullify a charge with respect to a verdict on the merits, nullification in the sentencing phase of a trial is not permitted. Thus, when a jury has found a defendant guilty of a charge, it may not return a sentence less than the statutory minimum. If it does, the judge is required to impanel a new jury to determine punishment. ¹³

If the jury cannot agree on punishment, the court will impanel a different jury to ascertain punishment unless the defendant, the commonwealth's attorney, and the court agree that the court will fix punishment. ¹⁴ Finally, the trial court retains the authority to suspend the sentence imposed

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by the jury, but if it does so, it must file with the record of the case a statement of the reasons for the suspension or modification. ¹⁵ The court cannot increase the jury's recommended sentence, but it may suspend or modify the sentence and also may impose a suspended term of up to three additional years of post-release supervision. ¹⁶

Under the Virginia Code, it is the jury's duty to ascertain and make clear its intent regarding punishment. ¹⁷ Although the punishment must conform to the applicable statutes, "mere inaccuracies or informalities in ascertaining or applying the punishment" do not require reversal if the jury's intent is clear. ¹⁸ If the verdict's meaning regarding punishment "cannot be reasonably determined," then the verdict is void because of uncertainty. ¹⁹

B. Jury Instructions. The trial judge should not inform the jury that the sentence may later be set aside or reduced. ²⁰ However, in all cases involving a non-capital felony, upon request by counsel, the jury must be instructed that parole has been abolished. ²¹ Additionally, if applicable and relevant, juries must be instructed on the possibility of geriatric release pursuant to section 53.1-40.01 of the Virginia Code.

It may be cause for a mistrial or even reversible error for a prosecutor to advise a jury that its sentence is only a recommendation. A curative instruction from the court may not be sufficient to save the case. In Caldwell v. Mississippi, ²² the United States Supreme Court prohibited comment by a trial court or argument by a prosecutor that the jury's determination of a death sentence is automatically appealable. In Frye v. Commonwealth, ²³ the

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commonwealth's attorney argued to the jury that the responsibility for fixing the death sentence was not the jury's but the court's. The trial court overruled a defense objection, stating in the jury's presence that its verdict would be a recommendation. The Virginia Supreme Court reversed, citing Caldwell. ²⁴

C. Suspension or Modification of Jury Recommendation. The trial court has the responsibility of imposing the ultimate sentence. The court may modify the jury's sentence as it deems appropriate and in consideration of mitigating, extenuating, or aggravating factors. The court may suspend the jury's sentence under section 19.2-303 of the Virginia Code. Any modification by the court of the jury's sentence must be explained in writing. ²⁵

D. Sentence in Excess of Jury Recommendation. Technically, the court may not sentence in excess of the jury's sentence, but, with the enactment of section 19.2-295.2 of the Virginia Code, the actual sentence may be greater than that recommended by the jury. Section 19.2-295.2 mandates an imposition of post-release parole supervision of not less than six months nor more than three years on each person convicted of a felony committed after July 1, 2000 and sentenced to an active prison term.

E. ABA Standards for Criminal Justice. The American Bar Association proposes that the sentence imposed be the minimum consistent with the protection of the public and consideration of the nature of the offense, statutory range of punishment, offender's role and motive, character, characteristics, past criminal history, risk for recidivism, comparables of sentencing in similar cases, and consideration of alternatives. ²⁶

F. Evidence of Prior Convictions. Whether prior criminal records will be admitted depends on whether they are introduced at the guilt phase or at the sentencing hearing. If a prior criminal conviction must be proven to establish an element of the charge at hand, the Commonwealth may introduce previous convictions and juvenile adjudications of delinquency by certified, attested, or exemplified copies of the conviction records. ²⁷ It is

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prejudicial error to introduce into evidence the sentences imposed for the previous convictions, ²⁸ but during the sentencing phase the prior conviction's sentencing information may be admitted. The Commonwealth is obligated to demonstrate that any guilty or no contest plea was entered knowingly and voluntarily. This is also the case for use of a prior conviction as an element of an offense. ²⁹

Rule 3A:17.1 of the Rules of the Supreme Court of Virginia entitles both the Commonwealth and the defense to make opening and closing statements in the sentencing hearing, but this right can be waived. At the sentencing hearing, the Commonwealth may introduce evidence of the defendant's prior criminal convictions under the laws of the United States or any state and may also present any victim impact testimony. ³⁰ At the penalty phase of the trial of a noncapital felony or a Class 1 misdemeanor, prosecution evidence of prior convictions may include the fact of conviction, including the name of the crime, the date of the conviction, the court in which the conviction occurred, and the punishments imposed. ³¹ Information on issues such as sentence, suspension, probation, or other rehabilitative efforts may be included. ³² The convictions must have occurred before the sentencing proceeding. ³³

Notice of intent to introduce the prior record of convictions must be given at least 14 days before trial, and the defendant must be given certified

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copies of the records before trial. ³⁴ Failure to provide the defendant with the required copies of the records, however, will not bar their introduction if proper notice was given and there is no showing of prejudice. ³⁵ The "record of conviction" is not limited to the final order of conviction but includes any "record" evincing the conviction. ³⁶ The record of conviction also includes evidence of prior sentences, ³⁷ but the Commonwealth may not introduce a record of offenses for which the defendant has been found guilty but not yet sentenced. ³⁸ Furthermore, the record of conviction does not include a record of charges that were later dismissed by nolle prosequi. ³⁹ The United States Supreme Court has ruled that a sentencing court may not look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted and supported a conviction for offenses qualifying the defendant for enhanced punishment but may examine "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding to which the defendant assented." ⁴⁰ When seeking to trigger the third larceny offense provision of section 18.2-104, the prosecutor cannot use a juvenile larceny adjudication as the basis for enhanced punishment. ⁴¹

After the Commonwealth introduces the record of conviction or if the defendant has no prior record, the defendant may introduce relevant, admissible evidence related to punishment. ⁴² The Eighth Amendment does not deprive the state of its authority to set reasonable limits on the evidence a defendant can submit and to control the manner in which it is submitted. ⁴³ In addition, both the Commonwealth and the defendant may introduce relevant evidence...