12.8 Special Sentencing Provisions

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

12.8 SPECIAL SENTENCING PROVISIONS

12.801 Concurrent and Consecutive Sentences. When a person is convicted of two or more offenses and sentenced to confinement, the general rule in Virginia is that sentences will run consecutively unless the court orders otherwise. ²³⁶ However, where the General Assembly has specified by statute that sentences for particular offenses are to run consecutively, the circuit courts do not have authority to order otherwise. ²³⁷ By its terms, section 19.2-308 of the Virginia Code applies to cases involving sentences of confinement in jail or in the state prison; it does not apply to suspended sentences or probation. ²³⁸

The punishment provisions for several crimes require that where a mandatory minimum sentence of imprisonment must be imposed, the sentence must be served consecutively with any other sentence imposed. ²³⁹ The applicable criminal statutes are sections 16.1-253.2 (violation of protective orders), 18.2-46.3:3 (street gang activity in gang-free zones), 18.2-60.4 (violation of protective orders), 18.2-61 (rape), 18.2-67.1 (forcible sodomy), 18.2-67.2 (object sexual penetration), 18.2-154 (shooting or throwing missiles

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at law-enforcement or emergency vehicles), 18.2-308.2:2 (purchasing firearm with intent to resell or provide to a person ineligible to purchase or receive a firearm), 18.2-374.1 (production of child pornography), and 18.2-374.1:1 (possession or distribution of child pornography). Additionally, the sentence for use of a firearm in the commission of a felony (18.2-53.1) must run consecutively with the underlying felony.

Whenever a person has been convicted of a criminal offense in Virginia and is serving a sentence of at least one year for another offense in another jurisdiction, the court may order the Virginia sentence to run concurrently with the other sentence. ²⁴⁰ The court also has the discretion to run sentences concurrently with one another for those offenses before the court. But if the original order expressly ordered concurrent service of multiple sentences, the trial judge later could not make them consecutive under the revocation and resentencing aspect of a probation violation process. ²⁴¹

12.802 Third Conviction of Act of Violence. Any person convicted of an act of violence, as specifically defined in section 19.2-297.1(A) of the Virginia Code, who has been previously convicted of two or more acts of violence not part of a common act, transaction, or scheme and who has been at liberty between those prior convictions, must be sentenced to life imprisonment. ²⁴² The life sentence can only be imposed if the trier of fact finds that the defendant has been previously convicted of specified acts of violence. Whenever the fact of a prior conviction is an element of a charged offense and a "required predicate for enhanced punishment," ²⁴³ the burden is on the Commonwealth to prove that prior conviction beyond a reasonable doubt. ²⁴⁴ Because acts of violence specified in section 19.2-297.1 are considered an element of the offense that must be proved during the guilt phase of the trial, evidence of prior convictions for acts of violence is admissible during the guilt phase. ²⁴⁵ These acts of violence include corresponding violations under the

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laws of the United States or any other state. ²⁴⁶ The life sentence can only be imposed if the Commonwealth, at least 30 days before trial, notifies the defendant in writing of its intention to seek life imprisonment pursuant to this provision. ²⁴⁷ A person sentenced under this provision is not eligible for parole, good conduct credit, or earned sentence credits; however, except for a designated sex offender, a defendant may be released upon reaching a specified age and upon serving a specified portion of the sentence. ²⁴⁸

In Washington v. Commonwealth, ²⁴⁹ the court recognized that presenting the evidence of prior convictions for crimes of violence during the guilt phase to prove recidivism was inherently prejudicial to the defendant but found no way to present it during the sentencing phase under the present statutory scheme. Defense counsel can request a curative instruction for the jury that evidence of these priors is not offered to prove and should not be used to make a decision on whether the defendant is guilty in the case before the court. The en banc opinion in Washington also suggests that a trial court has the power, if a defense motion is made, to "trifurcate" the trial so that evidence of the prior convictions is heard separately after guilt is determined but before the sentencing phase by bifurcating the guilt phase. The court noted, however, that this procedure, although within the court's discretion, is not required. ²⁵⁰

12.803 Crimes Involving Sexual Abnormality. On his or her own initiative, the judge may defer sentencing of a person convicted of a crime indicating sexual abnormality until a report of a mental examination can be obtained. ²⁵¹ If the commonwealth's attorney, the defendant, counsel for the defendant, or another person acting for the defendant moves for a mental examination, sentencing must be postponed for the report. ²⁵²

Although sentencing must be postponed when the defendant requests a mental examination after the initial conviction, revocation of the probation imposed on that conviction is not a "stage of criminal prosecution" but merely a modification of a previously imposed sentence. Thus, a court is not required

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to order the mental examination before revoking probation, even when requested to do so by the defendant. ²⁵³

The defendant must be examined by at least one psychiatrist or qualified clinical psychologist at an outpatient mental health facility, jail, or, upon a finding of necessity by the court, a hospital designated as appropriate for examination of persons convicted of crimes. If a psychiatrist or qualified clinical psychologist is not reasonably available, the court may appoint "a state licensed clinical social worker who has been certified by the Commonwealth as a sex offender treatment...