15 May 2004

Right to a Jury Trial

This is a section from a petition for appeal to the Virginia Court of Appeals. Understand that if you ask for a jury trial in Virginia and the jury finds you guilty the jury sentences you. It is my experience that juries will sentence significantly harder than a judge; this is at least partly true because judges have sentencing guidelines. Another factor is the fact that there are many crimes which have a mandatory sentence. Sentencing guidelines almost always call for less than the mandatory time and therefore a judge will suspend that part of the sentence he is required to impose which is greater than the recommendation. Jurors cannot suspend any part of a mandatory sentence. Technically judges can reduce a sentence imposed by a jury but I have never had a judge do so.

In this case a kid was sentenced to 3 1/2 years for shoplifting a $5 t-shirt. Due to his prior record had he been convicted by a judge it is doubtful he would have gotten more than a year.


“The right of an accused to a trial by a jury is a constitutional right guaranteed under both the United States Constitution and the Virginia Constitution. See U.S. Const. amend. VI; Va. Const. art. I, § 8. ‘Thus, the right to plead not guilty and have one's guilt or innocence and punishment determined by the jury is not only recognized in the law but given great deference.’ Mason v. Commonwealth, 14 Va. App. 609, 613, 419 S.E.2d 856, 859 (1992).” However, sentencing by a jury is a statutory creation, not a constitutional right. See Ballard v. Commonwealth, 228 Va 213, 217 (1984) & Mason, 14 Va. App. at 613; but see Ring v. Arizona 536 U.S. 584 (2002)(jury required for capital murder sentence).

When a judge sentences he is guided by Virginia’s sentencing guidelines. While a person convicted is denied the right to appeal an unreasonable upward departure from these guidelines, the judge must note an explanation for any deviance from the recommended range. Va Code § 19.2-298.01. The General Assembly brought the sentencing guidelines into being in order “to ensure the imposition of appropriate and just criminal penalties, and to make the most efficient use of correctional resources.” Judges are to use the “sentencing guidelines to achieve the goals of certainty, consistency, and adequacy of punishment.” Va Code § 17.1-801. However, this appropriate, just, certain, and consistent sentencing is not striven for in a jury trial. In fact, jurors are specifically forbidden the use of sentencing guidelines: “In cases tried by a jury, the jury shall not be presented any information regarding sentencing guidelines.” Va Code § 19.2-298.01.

Theoretically, a trial judge has the ability to suspend part of a sentence set out by a jury. Va. Code sec. 19.2-303. However, this ability is exercised entirely at the whim of the judge. It is subject to the unregulated decisions of each and every particular judge in the Commonwealth. Judges may have a wide variety of policies based upon factors ranging from personal philosophy to the desire to discourage jury trials in an overloaded docket. As well, when trial judges look to superior courts for guidance they will find that the Virginia judicial system definitely has a culture of deference toward jury decisions. The Courts Appellate of Virginia clearly set out this policy in case after case, usually in the context of decisions of guilt or innocence, see i.e. Commonwealth v. Hudson, 265 Va. 505 (2003) (overturning the Court of Appeals for not giving proper deference to the province of the jury), or in the award of pecuniary penalties, see i.e. WJLA-TV v. Levin, 264 Va. 140 (2002) (pecuniary penalty set by a jury must be grossly excessive or inadequate before it can be set aside). However, the policy of deference is inappropriate when a jury sets a punishment after having purposefully and specifically been denied guidance as to a normal sentencing range.

The sentencing structure laid out in Virginia’s statutory scheme requires a Defendant to place himself in jeopardy of enhanced punishment should he desire to exercise his right to a jury. This jeopardy is a direct infringement upon and serious impediment to the exercise of the right to a jury, one of the most important rights and defenses of the citizenry. Therefore, this sentencing structure is unconstitutional under both the Virginia and Federal constitutions.

The appellant therefore asks that this case be remanded to the trial court with instructions that either (1) the judge resentence appropriately or (2) that a jury be impaneled, given the same evidence available at the initial trial along with sentencing guidelines in order to aid it in its deliberations.

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