If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.I've discussed this twice before here and here.
Last week, in Wilson v. Virginia, the Virginia Court of Appeals addressed - yet again - the jurisdiction of trial courts under this statute. Apparently, after all the evidence had been given in the hearing the trial judge, at the defense attorney's prompting, ruled that she did not have jurisdiction to alter the defendant's sentence. The Court of Appeals makes short shrift of this restating "§ 19.2-303 gives trial courts jurisdiction over all felony convictions provided the defendant has not been sent to the Department of Corrections."
A win for the defense? Sort of. As the hearing had already been held before the judge rendered her ruling, the Court of Appeals had an entire record before it upon which to decide whether or not the case should be returned to the trial court for further consideration. Therefore, the Court of Appeals moves forward with a harmless error analysis.
Circumstances in Mitigation
The Court zeroed in on one part of the statute: "circumstances in mitigation of the offense" (something I'd previously said I didn't think would happen - see comments here). However, it's not the most satisfying analysis. The discussing paragraphs meander back and forth in their description of "mitigating circumstances." When the Court discusses Virginia law it has a fairly restrictive interpretation. It quotes Shiflett, defining mitigating circumstances as
[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the crime.It then discusses § 19.2-264.4, stating
The "facts in mitigation" identified by the General Assembly share a common thread in that, while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed and may be relevant in sentencing.This tracks with my previous assertion that mitigation of the offense actually has to be related to the offense.
However, the Court also adds in some ambiguity. Directly after it quotes Shiflett, the Court quotes Black and defines mitigating circumstances without any reference to the offense
a fact or situation that does not bear on the question of the defendant’s guilt, but that is considered by the court in imposing punishmentThe Court ends the paragraph with more ambiguity as to exactly what mitigating circumstances are
Put succinctly, the term "facts in mitigation" has no bearing on the actual guilt or innocence of the accused but rather relates only to the degree to which punishment is appropriate.Nevertheless, I don't think the ambiguity is enough to mask that the Court is stating (collaterally) that Virginia law requires the mitigation to be "of the offense", not "of the sentence." I only wish the Court had been more clear on this point.
Why wasn't it? Well, maybe because the Court wasn't worrying about my concerns over this statute. It was trying to define "mitigation of the offense" in this statute so that it does not include "absolution of guilt / nullification of conviction." I'd previously stated that I thought the purpose of this statute was to allow the judge to consider both perfect and imperfect defenses beyond the trial courts 21 day retention of jurisdiction post-trial, allowing the judge to suspend part or all of a sentence. The Court's interpretation takes perfect defenses off the table. If, 22 days after the trial, the lab realizes it mixed the DNA, or the police realize they got the wrong guy, or the defendant admits to making it all up, the defendant has no relief short of appeal, habeas, or writ of actual innocence. The defendant could spend months, maybe a year+ (or longer, depending on how quickly the courts worked), incarcerated despite knowledge of innocence 22 days after trial.1 As you might surmise from my reaction above, I'm not a fan of the possible result of this decision. I'm particularly irked by the use of the creation of a statute in 2004 (the writ of actual innocence) to interpret the meaning of a statute passed in 1975 (19.2-303). However, I'm not going to get into a legislative intent argument. If the Court wants to proclaim that the General Assembly intends to keep innocents incarcerated until they can jump through all the hoops of a habeas or writ it can stake that position out all for itself.
I can't even get there textually. Mitigation is defined by Webster as "1: to cause to become less harsh or hostile; 2: to make less severe or painful." Mitigation isn't as specific as absolve or nullify, but it is a word which has the breadth to incorporate both. If guilt is absolved or nullified it definitely lessens the harshness and severity of the defendant's involvement in the offense.
Oh well, in a disagreement between myself and Judge Humphreys over the interpretation of a statute I suspect his actual legal decision will carry the day over my sniping from the sidelines.
Here's where I now understand the rule to be for this section of § 19.2-303: A defendant can only get relief if she presents evidence which mitigates the offense, but does not tend to prove the defendant not guilty. The evidence presented may only lessen the offender's moral culpability and may only address her prior record or the circumstances of the offense.
1 Yes, I know that there are probably not quite legitimate means by which a creative trial court could fudge and nullify the conviction, but what if the judge is a scrupulously honest man who won't act against the letter of the law?