9.19 Authority to Sentence

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.19 AUTHORITY TO SENTENCE

9.1901 Jury Trials. The Virginia Constitution guarantees the right to a jury trial in criminal cases. ⁶⁸⁵ By statute, the jury is given the power to sentence the accused. ⁶⁸⁶ 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. ⁶⁸⁷ 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. ⁶⁸⁸ Va. Code § 19.2-295 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. ⁶⁸⁹

Before 1994, sentencing in jury trials was done by the jury in a unitary trial. After 1994, criminal trials became a bifurcated process. The 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. ⁶⁹⁰ If the defendant is charged with a felony or a Class 1 misdemeanor and is convicted

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only of a misdemeanor other than a Class 1 misdemeanor, the sentence is fixed by the jury without a separate sentencing hearing. ⁶⁹¹

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," ⁶⁹² they are not allowed to suspend a sentence or grant probation. ⁶⁹³ A jury is also prohibited from recommending that the judge suspend the sentence or place the defendant on probation. ⁶⁹⁴ 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. ⁶⁹⁵ Furthermore, the jury is not given access to the discretionary sentencing guidelines. ⁶⁹⁶

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. ⁶⁹⁷

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. ⁶⁹⁸ Finally, the trial court retains the authority to suspend the sentence imposed 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. ⁶⁹⁹ The court cannot increase the jury's recommended sentence, but it may suspend or modify the

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sentence and also may impose a suspended term of up to three additional years of post-release supervision. ⁷⁰⁰

Under the Virginia Code, it is the jury's duty to ascertain and make clear its intent regarding punishment. ⁷⁰¹ 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. ⁷⁰² If the verdict's meaning regarding punishment "cannot be reasonably determined," then the verdict is void because of uncertainty. ⁷⁰³

9.1902 Discretionary Sentencing Guidelines.

A. 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. ⁷⁰⁴ The system was established by the Virginia Criminal Sentencing Commission. ⁷⁰⁵ The Commission's recommended sentence for specified felonies is determined by reference to sentences actually imposed for like...