Donald said on February 28, 2009  

It's very flattering to have my lowly comment serve as the catalyst for another post (with original graphics!). No one else seems interested by all this, but I do have a few more thoughts.

1. I certainly take your point that when the Assembly's intent is made clear through plain statutory language, courts aren't supposed to contavene it.

2. I think it's worth noting that while our disagreement is essentially about the significance of the word "offense" in the statute, the examples you give of strict adherence to plain meaning all have to do with the DOC transfer, which kills jurisdiction. Nice examples as far as they go, but not on the same question.

3. In the original post you wrote "Note that [the statute] is specific. This is not about circumstances in mitigation of the sentence; it specifically states the circumstances must mitigate the offense." I take your follow-up post to be largely a repetition of this point. But it's far from clear to me, in practice, that the phrasing here is such a hurdle as you propose.

That is, when you say "[t]here must actually be something which mitigates the offense of which they've been convicted," I believe I could respond "fine, but the set of possible things which mitigate the offense is much larger than you suggest." You say it's limited to evidence of an imperfect defenses or evidence of actual innocence. That's what I was calling unnecessary line-drawing.

If (1) a defendant is convicted of drug use and (2) a judge sentences him to 3 years active, and (3) the defendant spends the first 18 months of the sentence (all in the local jail) doing Bible classes and N/A meetings, then (4) the judge reconsiders and drops the active sentence to 2 years -- has the judge broken the law? Should the Commonwealth try to appeal? By your cramped reading of the statute it seems certainly to be an illegal order. But you must know that this kind of thing happens all the time.

My argument is that the new circumstances are fairly considerable as "in mitigation of the offense." If the offense originally made the judge think that the guy was dangerous to the community and likely to re-offend, and thus ought to be locked up for some significant time...that makes sense, right? But then let's say the post-sentencing conduct persuades the judge that the guy's not so dangerous after all, and in fact is less likely to reoffend than the judge earlier believed...are you telling me that's not mitigation of the offense? If the offense is viewed as a proxy for the actual (and unknowable) likelihood of a future offense down the road...then some other fact, tending to change the approximate measure of that likelihood, can mitigate the measure suggested by the plain fact of the offense.

Or so I would say. Perhaps I'm not being very clear about it, but I think my argument is that your distinction between types of mitigation is largely formal, and fails to take into account the varied components of sentencing. As far as I can tell the phrase "mitigation of the sentence" does not exist in the Code of Virginia. I'm just not sure the Assembly had in mind the kind of clear divisions between types of "circumstances" that you want to impose. And the remedial purpose of the statute helps me along - whether something is in mitigation of the offense or not is a much muzzier question than whether they have in fact been transferred to DOC custody.

 Ken Lammers said on February 28, 2009  

Has the judge broken the law? Yes. Nothing whatsoever has changed about the offense (possession). You can say "But, Judge, he's a good guy now" all day long, but it doesn't change the fact of possession in any way.

Should the Commonwealth try to appeal? The Commonwealth cannot appeal this because it is not authorized under § 19.2-398. Why do you think there is no case law directly on point?

Yes, the cases are about jurisdiction. However, the principles of interpretation which they have applied specifically to this statute aren't likely to be limited to jurisdiction.

Offense means offense. When I read it to mean offense, I'm not giving it a cramped reading; I'm giving it its actual meaning. To get to your interpretation you have to treat offense as a proxy for future dangerousness, which might be part of some offenses (3 violent offenses - Virginia's 3 strikes or capital murder) but is not generally. You have to expand it beyond its actual meaning.

I'll be surprised if I ever see this make it to appellate courts. Maybe a judge somewhere will say that he is rejecting the offender's motion because his argument does not mitigate the offense and get appealed by the offender (after all, all those jurisdiction cases were appeals by offenders). However, most of the time when the judge denies these motions he gives some sort of factual reason; I've never seen one turned down for a legal reason.

 Donald said on March 02, 2009  

Tautology is hard to counter. I do in fact think criminal offenses are, among other things, proxies for the likelihood of future harm. But maybe we've said all there is to be fruitfully said. I certainly understand your position w/r/t the statute, even if I disagree with it. And my position is, I admit, heavily skewed by prevailing practice in my local courts. As for appeals, you're quite right about 19.2-398, my mistake. But I guess if you see a questionable sentence modification in a case "relating to the state revenue," you ought to share your thoughts about the statute with the AG's office. I'd be curious to see the robed ones deal with this.

 Donald said on March 02, 2009  

As an addition to the bit about the CW appealing - on your theory of the statute, couldn't you argue any order such as my example is void ab initio?

An order is void ab initio if entered by a court in the absence of jurisdiction of the subject matter or over the parties, if the character of the order is such that the court had no power to render it, or if the mode of procedure used by the court was one that the court could "not lawfully adopt." Evans v. Smyth-Wythe Airport Comm'n, 255 Va.
69, 73, 495 S.E.2d 825, 828 (1998)(quoting Anthony v. Kasey, 83 Va. 338, 340, 5 S.E. 176, 177 (1887)).

The lack of jurisdiction to enter an order under any of these circumstances renders the order a complete nullity and it may be "impeached directly or collaterally by all persons,
anywhere, at any time, or in any manner." Barnes v. Am. Fertilizer Co., 144 Va. 692, 705, 130 S.E. 902, 906 (1925).

That's from Singh v. Mooney, Va. S.Ct. case from 2001. Or you could request a capias for such a defendant once he was released, referring to the original sentencing order - and when it was denied you could file for mandamus. Seems to me there are ways to put the issue before the appellate courts if you really watch for your chance.

 Ken Lammers said on March 02, 2009  

If it was a serious ongoing issue, we could try to get a writ of prohibition. However, I've only seen this tried in a couple cases in the 2.5 years I've been here and not seen the defendants succeed, although the reason given has always been factual.

Before I came out here I saw the statute used as though the last paragraph was as unfettered as the second to last many times. However, back then I was doing defense work so had no reason to examine a statute which everyone believed to work in a manner favorable to defendants. I probably wouldn't have looked at it now, except that someone posited to me that this statute renders plea agreements null and void should the judge desire to ignore them post conviction.

I'd be interested to see this before the appellate courts myself, but I don't think it'll get there unless a judge refuses based on the grounds I've stated and the defense appeals. You're welcome to slip copies of the posts to a judge before you argue and try to get him to adopt my reasoning so you can appeal it. ;-)

 Tony said on April 09, 2009  

I now am confused? maybe some one can help me understand something as follows. Can a defendant be placed on probation for a term exceeding what the original sentence would have been,i.e. in a class 1 misdemeanor can the defendant be put on probation for three years when the sentence is 12 months with 11 suspended for three years, with "indefinite" local probation? and how long would the probation be, three years or 12 months?
Thanks