First, some background: In Virginia when a defendant is found guilty of a crime a presentence report is ordered and he comes back to court 2-3 months later to be sentenced. The presentence report goes over various aspects of the defendant's life including family history, education, medical history, criminal record, &cetera. The presentence report is mailed to the defense attorney who must go over it with his client but is forbidden to give the client a copy. The presentence report is sealed after the sentencing. [Consequently, I shan't be telling you what is in it. I shall only repeat what was stated in open court.]
Along with the presentence report comes the sentencing guidelines. In Virginia these are merely recommendations and appeals based upon these guidelines are forbidden.
My client had had his malicious wounding charge (5-20 years) reduced to unlawful wounding (up to 5 years) and pled guilty about two months prior.
The Hearing: I arrive in court and go back in to the lockup area to talk with my client. Then I go out and sit in the jury box for about 3 hours listening to other sentencings and trials, waiting for my client to be called. Finally, the prosecutor calls the name of my client, "John Smith."
I walk over to the defense table and stand there waiting for the deputy to bring my client out. Client comes out and stands next to me. The judge asks him if we've gone over the presentence report and if he understands. Client says, "Yes."
Next the judge asks if the prosecutor or I have any changes which need to be made to the presentence report. The prosecutor has none (the prosecutor never has any). I stand and tell the judge that we have a few.
First, I point the judge to the recitation of the facts: "Your honor, I suspect this comes straight from the police report. I don't know, since I'm not allowed a copy. However, the facts here say my client was drunk and trespassing on Mr. Jones' property, that Mr. Jones pinned him to the ground, that Mr. Smith got free and hit Mr. Jones with a lawn gnome. I ask you to remember that when we were here before the facts laid out had more to them. My client was trespassing - looking for a girl, dad came out, they argued, Client went to leave, Mrs. Jones told Mr. Jones not to let him go, Mr. Jones followed Mr. Smith - who then turned to confront him. Mr. Jones thought he saw Mr. Smith reach for something and hit him. Then Mr. Jones pinned Mr. Smith to the ground. Mr. Smith hit Mr. Jones with the lawn gnome to get him off of Mr. Smith."
Judge: "Yes Mr. Lammers, I remember this case." [all judges say this - it could be a misdemeanor shoplifting from three years ago and the judge will swear he remembers it; still it never hurts to remind them]
Me: "On page five it talks about his family history. His mother's second husband was Mr. Green not Mr. Gary. As well, my client would tell you that the domestic assault against his mother in the last paragraph was actually against his mother's boyfriend - that he never attacked his mother."
"On page 8 my client would tell you that he is Christian but not actually Baptist. He thought that he had to choose a particular denomination but he wanted to make sure he was absolutely truthful to your Honor today."
"On page 11 the last paragraph states that he did not go to substance abuse programs which were required by his juvenile probation officer. Mr Smith would tell you that he does not remember having been required to go to any program. That doesn't mean he wasn't - just that he has no memory of it. And that's all the corrections we offer, sir."
The judge asks if either the prosecution or defense have any evidence and neither does. The he asks for argument. The prosecution waives opening. [a standard ploy in cases wherein there is no jury]
I stand up to argue:
Your honor, this is a terrible presentence report.Then the prosecutor gets his turn at the podium:
When we look at the family history we see that Mr. Smith's family life was unstable. At best his family was disinterested - at worst it was abusive.
Looking at the medical history we see that Mr. Smith suffered from manic depression, psychotic tendencies, and suicidal ideations. He's been on medications since the third grade.
I look at his record from juvenile court, and it is a significant record but what strikes me is that there is nothing that indicates that there was ever any kind of CHINS petition. Maybe that wouldn't be indicated in his record but as I look through the rest of the presentence report I don't see anything which indicates one.
When we look at his educational record, there was no specialized educational aid offered to Mr. Smith. No indication of any kind of individualized effort to help him with his needs.
Mr. Smith's entire life was a train ride, bringing him right to where he is today. He was just along for the ride. He was coming here one way or another.
He's here now and we need to take steps to try to get him off this track. This is his first stop in the adult world where there are real world consequences and we can make him take steps to help himself. We need to do this for Mr. Smith. And we need to do it for society at large, so that he can become a productive member.
Your Honor, I would ask that Mr. Smith be put on intensive probation where he can be required to undergo drug and alcohol screening, go to mental health and get some help, and be required to take his meds. If you feel that you have to give time we ask for the 7 months at the low end of the guidelines. Thank you your Honor.
Your Honor, as we look through Mr. Smith's record as a minor he has a history of violent acts, including a prior malicious wounding adjudication. He didn't make it three weeks past his 18th birthday before this happened.The Judge:
He was trespassing. He was drunk. Mr. Jones had the right to tell him to get off his property. And then he hit and injured Mr. Jones with a cement statue. Mr. Jones had to go to the hospital for treatment.
The Commonwealth thinks the sentence should be the mid-point at least but that the 1 year 3 months at the upper end of the guidelines is the proper sentence.
Mr. Smith shouldn't have been trespassing and he shouldn't have been drunk. He shouldn't even be drinking at his age. Certainly Mr. Jones had the right to not be disturbed and to tell Mr. Smith to leave his property. So Mr. Smith must receive some punishment.At this point I go into the lockup area with my client to explain what just happened. [quite often the client is too nervous, or his brain stops functioning when he hears the "I sentence you to 5 years . . ." (not hearing the "X amount of time suspended" part), or the language is above his head so you have to go back and tell him what just happened in his life]
Sadly, I agree with Mr. Lammers that Mr. Smith was destined to end up here. And, to use Mr. Lammers' train language, we should try to take steps to get him off this track. Therefore, I sentence Mr. Smith to 5 years, with 4 years and 4 months suspended for 15 years - on condition that Mr. Smith keep the peace and obey the laws of the Commonwealth and her Sister States. I order indefinite supervised probation upon his release from custody and I am recommending that it be intensive supervision. I also order $63 dollars restitution to be paid to Mr. Jones within 45 days of Mr. Smith's release from jail.
Mr. Smith, I hope we never have to meet again. Good luck.
And thus ends another sentencing hearing in the Commonwealth of Virginia.