12.5 Presentence Investigation and Report and Victim Impact Statement

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

12.5 PRESENTENCE INVESTIGATION AND REPORT AND VICTIM IMPACT STATEMENT

12.501 Procedure. Section 19.2-299 provides that for certain felony and misdemeanor offenses, the court must direct a probation officer to make

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a presentence investigation and report, unless the court, the Commonwealth, and the defendant agree to waive the investigation and report. ¹³⁰ Subsection (A) details the offenses for which the report is required. The 2017 amendment to section 19.2-299 added nolo contendere to the pleas for which a court is required to direct a probation officer to create a presentence report upon conviction for certain felonies. The probation officer must file the written report with the judge and give copies to the commonwealth's attorney and defense counsel at least five days before sentencing. ¹³¹

The report must be kept confidential by all parties but is filed as part of the record. Upon sentencing, the report must be sealed and may be made available only upon court order. Defense counsel may cross-examine the probation officer about any material in the report ¹³² and may present additional facts relevant to sentencing. Rebuttal evidence may be presented in several forms, such as witness testimony, records, and letters. Because the issue of guilt or innocence is not being decided, the rules of evidence are not applicable. ¹³³

When the defendant properly requests a presentence report, the statute is mandatory, and failure to comply is reversible error. ¹³⁴ However, there is no constitutional right to a report. ¹³⁵ Therefore, habeas corpus cannot be

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used to challenge noncompliance. ¹³⁶ On a finding of noncompliance, the sentence will be reversed and the case remanded for resentencing. ¹³⁷

The statute limits later access to the report. Any presentence report must be sealed upon "final order by the court." ¹³⁸ A report may be released to any "criminal justice agency," any agency to which the accused has been referred for treatment, and counsel for any person indicted jointly for the same felony. ¹³⁹ If the subject of the report is later charged with a felony or has been convicted of the crime or crimes for which the report was prepared and is pursuing post-conviction remedy, counsel representing the subject in the subsequent proceeding can obtain the report. ¹⁴⁰ In all other instances, a court order is necessary. ¹⁴¹

12.502 Contents of the Report. The presentence report must contain the defendant's history and must include a report of the accused's criminal record and available juvenile court records. Information regarding the accused's participation or membership in a criminal street gang must also be included. Unless the defendant or commonwealth's attorney objects, the court may order that the report contain only the defendant's criminal and substance abuse history, pertinent health problems, and applicable sentencing guideline worksheets. If the accused was convicted of a felony drug offense, the report must include any known association of the defendant with illicit drug operations or markets. For non-capital felony offenses, the presentence report must contain the results of a required substance abuse screening. ¹⁴² Any additional information is included at the court's request or

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in the probation officer's discretion. ¹⁴³ As a practical matter, the report usually contains detailed information on the defendant's prior record, family history, education, religious background, interests and activities, health, employment record, and financial condition. The report may also include a recommendation of probation and a notation of the defendant's residence and employment if probation is granted. The "history of the accused" does not include a prior acquittal on another criminal charge. ¹⁴⁴ If the presentence report contains facts that might subject the defendant to an enhanced sentence, his or her failure to object to those facts does not constitute an admission for purposes of the Sixth Amendment right to a jury trial pursuant to Apprendi v. New Jersey. ¹⁴⁵

12.503 Victim Impact Statement. The presentence report must, with the consent of the victim, ¹⁴⁶ include a victim impact statement. ¹⁴⁷ The term "victim" includes a corporation or insurance carrier. ¹⁴⁸ The victim impact statement may contain information from members...