Blakely & Virginia's Guidelines

A question from J.H:

Based on the referenced VA Code, what if a Judge does not comply with providing a written justification for the enhancement, could the Blakely ruling be applicable for an Appeal in VA??

Va. Code Ann. §19.2-298.01(A), (B). Virginia relies on jury sentencing for all cases tried before a jury. In such cases, the jury is free to select any sentence within the statutory sentence range and is not in any way required to base the sentence on the sentencing guidelines. In such jury-sentencings, no Blakely issue is raised. However, the judge determines the sentence in any case where: the defendant pleads guilty to an offense; the defendant waives a jury trial and is tried by the court; the jury does not unanimously agree on the sentence; or the prosecution and the defense agree that the court may fix punishment. In such cases, the court must apply the sentencing guidelines and provide written justification for an enhanced sentence.

What JH is talking about is this:

§ 19.2-298.01. Use of discretionary sentencing guidelines.

A. In all felony cases, other than Class 1 felonies, the court shall (i) have presented to it the appropriate discretionary sentencing guidelines worksheets and (ii) review and consider the suitability of the applicable discretionary sentencing guidelines. . . . In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.

B. [When} the court imposes a sentence which is either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure.

The guidelines discussed were created with a stated purpose:

§ 17.1-801. Purpose.

The General Assembly, to ensure the imposition of appropriate and just criminal penalties, and to make the most efficient use of correctional resources, especially for the effective incapacitation of violent criminal offenders, has determined that it is in the best interest of the Commonwealth to develop, implement, and revise discretionary sentencing guidelines. The purposes of the Commission established under this chapter are to assist the judiciary in the imposition of sentences by establishing a system of discretionary guidelines and to establish a discretionary sentencing guidelines system which emphasizes accountability of the offender and of the criminal justice system to the citizens of the Commonwealth.

The Commission shall develop discretionary sentencing guidelines to achieve the goals of certainty, consistency, and adequacy of punishment with due regard to the seriousness of the offense, the dangerousness of the offender, deterrence of individuals from committing criminal offenses and the use of alternative sanctions, where appropriate.

The theme you'll notice running through all of that is the word "discretionary." The guidelines are by no means mandates. In fact, going back to § 19.2-298.01:

F. The failure to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner shall not be reviewable on appeal or the basis of any other post-conviction relief.

This means that a judge doesn't really even have to state for the record his reason for departure. Basically, the guidelines are not mandated at all. Blakely only applies if the guidelines are mandated in some form or another.

With that in mind, the question becomes - why do we even have guidelines? They shan't be enforced by the appellate courts so why would a judge ever pay attention to them? They are a tool for the General Assembly. Under Article IV of the Virginia Constitution, sec. 7:

The justices of the Supreme Court shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of twelve years. The judges of all other courts of record shall be chosen by the vote of a majority of the members elected to each house of the General Assembly for terms of eight years.

Basically, every eight years a judge comes back before the General Assembly and has to justify himself. Additionally, if a judge has ambitions of becoming an appellate judge he may be questioned as to his record in regards to the guidelines. However, let's face it, if a judge were crass enough to be manipulating cases in anticipation of his future he'd realize that while downward departures might hurt him it is unlikely that upward departures would. In fact, whenever attorneys think that they've noted an upward, over-the-guidelines trend in the sentences handed out by a certain judge one of the topics which always seems to crop up is, "Judge Smith is running for the Court of Appeals." Is it true? Unlikely, but it makes good gossip.