12.3 Discretionary Sentencing Guidelines

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

12.3 DISCRETIONARY SENTENCING GUIDELINES

12.301 In General. Beginning in the 1990s, Virginia instituted a system of discretionary sentencing guidelines for use in sentencing those convicted of any felony except capital murder. ¹⁰³ The system was established by the Virginia Criminal Sentencing Commission. ¹⁰⁴ The Commission's recommended sentence for specified felonies is determined by reference to sentences actually imposed for like offenses and the amount of time actually served by offenders before the abolition of parole. The recommended sentence is then modified by the application of several factors, including the defendant's prior convictions.

The use of voluntary or discretionary sentencing guidelines, including their use by the court following a jury's sentence that was imposed without resort to the guidelines, violates no rights, statutory or otherwise, of the defendant. The applicable guideline sentence is only one factor to be considered

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by the court when imposing sentence, as long as the sentence imposed is within the range set by the legislature. "In Virginia, neither the jury nor the trial court can sentence a person to a greater punishment than that established by the legislature for the crime of which that person was convicted." ¹⁰⁵ When a defendant pleads guilty pursuant to a plea agreement which provides that the defendant will be sentenced within the range set by the sentencing guidelines, the trial court must follow those guidelines. ¹⁰⁶ However, the trial court's failure to follow the guidelines is not grounds to set aside a sentence. ¹⁰⁷ In Virginia, the jury never sees sentencing guidelines, and in federal cases a jury does not sentence the convicted defendant.

Counsel should calculate the sentencing guidelines on his or her own initiative and contact the probation officer and the Sentencing Commission regarding any questions or challenges encountered. Counsel may ask the probation officer to explain his or her computations and reasoning in calculating the recommendation. If the client's case appears to offer a reasonable alternative set of calculations, the attorney should consider presenting them for consideration by the court. For example, if the client's guidelines are exceptionally high because of a 30-year-old robbery conviction and the client has been convicted of a nonviolent offense in the present case, the court may consider those circumstances as a reason to depart from a seemingly high sentencing recommendation.

12.302 Departure from Guidelines. When a court departs from the sentence recommended by the guidelines by imposing either more or less jail time, the court must file of record a written explanation for the departure. ¹⁰⁸ But the failure of the court to follow this mandate or any other mandate relating to application of the guidelines is not grounds for appeal or post-conviction relief. ¹⁰⁹

12.303 Applicable Version of Guidelines. The Virginia Supreme Court has held that a trial judge should use the sentencing guidelines in effect at the time of sentencing and not those in effect at the time the crime

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was committed. ¹¹⁰ However, in 2013 the United States Supreme Court held that the Ex Post Facto Clause was violated when the 2009 U.S. Sentencing Guidelines, which were no longer considered mandatory, called for a greater punishment than had been attached to the defendant's crime at the time the crime was completed; the newer enhancement of the...