9.21 Presentence Investigation and Report and Victim Impact Statement

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

9.21 PRESENTENCE INVESTIGATION AND REPORT AND VICTIM IMPACT STATEMENT

After a finding of guilt or the entry of a guilty plea or nolo contendere upon certain felony or misdemeanor charges specified in Va. Code § 19.2-299 and before pronouncement of sentence, the court must direct a probation officer to make a presentence investigation and report, unless the court, the Commonwealth, and the defendant agree to waive the investigation and report. ⁷¹⁸ The probation officer must file the written report with the judge

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and give copies to the commonwealth's attorney and defense counsel at least five days before sentencing. ⁷¹⁹

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 ⁷²⁰ 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. ⁷²¹

When the defendant properly requests a presentence report, the statute is mandatory, and failure to comply is reversible error. ⁷²² However, there is no constitutional right to a report. ⁷²³ Therefore, habeas corpus cannot be used to challenge noncompliance. ⁷²⁴ On a finding of noncompliance, the sentence will be reversed and the case remanded for resentencing. ⁷²⁵

The statute limits later access to the report. Any presentence report must be sealed upon "final order by the court." ⁷²⁶ A report may be released to any "criminal justice agency," any agency to which the accused has been

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referred for treatment, and counsel for any person indicted jointly for the same felony. ⁷²⁷ 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. ⁷²⁸ The report must be made available for review without a court order to incarcerated persons who are eligible for release by the Virginia Parole Board or such person's counsel. ⁷²⁹ In all other instances, a court order is necessary. ⁷³⁰

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Notes:

^[718] Va. Code § 19.2-299(A); see Duncan v. Commonwealth, 2 Va. App. 342, 343 S.E.2d 392 (1986).

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