23 February 2009

Round Two of Virginian Judges' Ability to Alter Sentences

Previously on CrimLaw: I discussed here the ability of judges to modify plea agreements without the agreement of the prosecution or defense, pursuant to the last paragraph Virginia Code § 19.2-303.
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 pointed out a case directly on point, Esparza, which states the trial court has jurisdiction to modify even if the sentence was by plea. I then went on to discuss the two prongs which have to be satisfied for the judge to alter the sentence, "compatible with the public interest" and "circumstances in mitigation of the offense." I then went on to postulate as to the purpose of the statute, post creation of the Writ of Actual Innocence.

Donald, in a comment, cried foul. He pointed to language in the Esparza which states this statute is rehabilitative and should be construed liberally. Then he challenges my distinction between "mitigation of the offense" and "mitigation of the sentence." He ends by asserting "If a judge thinks a defendant has become a better person or less of a risk or whatever, at any time since the original sentencing, as long as the jurisdiction-killing DOC transfer hasn't happened, the judge can reduce the period of active incarceration. Period."

Thank you for your input Donald, but I must disagree.

I. Liberal Interpretation of the Statute:

Donald's correct in stating that there is language from cases in the 1950's which states this statute is rehabilitative and should be liberally interpreted. It's boilerplate and is included in just about every decision concerning this statute. However, the appellate courts have been very clear that language of the statute trumps any purpose previously attached to the statute by the courts.
In resolving that question, we must look to the language of the pertinent part of the statute to determine the General Assembly's intent. See HCA Health Servs. of Virginia, Inc. v. Levin, 260 Va. 215, 220, 530 S.E.2d 417, 420 (2000) ("Courts must give effect to legislative intent, which must be gathered from the words used, unless a literal construction would involve a manifest absurdity."). As "[t]he purposes of Code § 19.2-303 are rehabilitative in nature," Esparza v. Commonwealth, 29 Va. App. 600, 607, 513 S.E.2d 885, 888 (1999), the statute should be construed liberally. See Wright v. Commonwealth, 32 Va. App. 148, 151, 526 S.E.2d 784, 786 (2000) (stating that statutes should be liberally construed in keeping with their rehabilitative purpose); see also Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486 (1952) (noting that courts should liberally construe Code § 53-272, Code § 19.2-303's predecessor, in order to "afford to trial courts a valuable means of bringing about the rehabilitation of offenders against the criminal laws"). This does not mean, however, that Patterson is entitled to an interpretation of Code § 19.2-303 that is inconsistent with the statute's plain language. See Cartwright v. Commonwealth, 223 Va. 368, 372, 288 S.E.2d 491, 493 (1982) (noting that a statute may be interpreted in accord with its purpose only to the extent that such purpose "'may be accomplished without doing harm to [the statute's] language'" (quoting Gough v. Shaner, Adm'r, 197 Va. 572, 575, 90 S.E.2d 171, 174 (1955))). "The manifest intention of the legislature, clearly disclosed by its language, must be applied." Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944).

Patterson v. Commonwealth (no 2446-01-2)
Additionally, modern appellate courts have had no truck with giving offenders the benefit of the doubt under this statute:
Chilton v. Commonwealth (no. 0789-02-2) - An offender was transferred to the Department of Corrections (DOC), then back to the jail. Trial court lost jurisdiction at the moment of the first transfer.

Coe v. Commonwealth (no. 3293-02-2) - Even if the offender was transferred to prison contrary to an order of the trial court the trial court loses jurisdiction.

Patterson v. Commonwealth (no. 2446-01-2) - An offender with a suspended sentence cannot avail herself of this statute.

D'Alessandio v. Commonwealth (no. 0483-02-2) - An offender must prove the trial court still has jurisdiction and she has never been transferred to DOC.
There's no way you get those last three decisions by construing the language in the statute liberally with a rehabilitative intent. In fact, I don't think Patterson is even supported by a plain reading of the statute; ambiguous language had to be read against the offender's position to get that result. And there's nothing in the statute at all which supports D'Alessandio.

It's clear that modern cases are not giving this statute a broad interpretation, no matter who is effected by a strict interpretation. Both Esparza and Coe have strong arguments (from different sides of the Bench) which the appellate courts cut straight through, in strict reliance to the actual words of the statute. So, let's address the actual language of the statute.

II. The Language of the Statute

Donald's concern here is:
You reach your idea of the statute's purposes by way of the distinction (also unsupported in Esparza or in the statute) between mitigation of the offense and mitigation of the sentence. Your implication, which parallels the notion of after-discovered evidence, is that facts arising after conviction cannot mitigate the offense itself, only the sentence. But this is a lot of unnecessary line-drawing.

Consider: evidence presented "in mitigation" at the original sentencing hearing is certainly in mitigation of the offense, under your terms, because the sentence hasn't happened yet. But the offense itself might be a year old by that time. No one says the sentencing judge can't hear stuff about the Bible classes the defendant's been going to during his pretrial detention.
Okay, I defined Sentence and Offense in the last post, but here it is again to refresh your memory.
Offense: A felony or misdemeanor; a breach of the criminal laws; violation of law for which penalty is prescribed.

Sentence: The judgment formally pronounced by a court or judge upon a defendant after his conviction in a criminal prosecution, imposing the punishment to be inflicted, usually in the form of a fine, incarceration, or probation.

All definitions from Black's.
It's obvious that "offense" and "sentence" are two different events. They are related, as every sentence requires an offense, but not in any way the same. An offense is an illegal act; a sentence is post-conviction punishment for the act.

I never asserted that "evidence presented 'in mitigation' at the original sentencing hearing is certainly in mitigation of the offense, under your terms, because the sentence hasn't happened yet." That statement is a partial truth. Evidence presented in a sentencing hearing is presented to mitigate the sentence. It has two subsets. The first is evidence in mitigation of the offense. The second is evidence regardless of the offense. Evidence in mitigation of the offense cuts across much more of the process than just the sentencing. Evidence regardless of the offense is only to see the light of day in a sentencing hearing.

Here's the entire process diagrammed out:

Evidence mitigating the offense can affect things at various stages of the process. A decision to not charge can be made because self defense is obvious. In trial affirmative defenses can be raised to nullify or lessen a charge (lowering it to a lesser included offense). A judge may decide to give a convicted offender a lesser sentence because he didn't plan the robbery or his distribution of a drug was an accommodation (neither of which cancels guilt; both of which are demonstrative of where a sentence should be given in the range of possible punishment).

On the other hand, there is probably an infinite list of evidence and arguments which are made in an attempt to lessen a sentence regardless of the offense. Common forms of these arguments include good behavior since the offense (going to Bible classes, being a trustee, cooperating with the investigation), the difficulties which incarceration will cause (loss of job, inability to help ailing parent/child), or illness (can't go to prison because have to have cancer surgery). None of these mitigate the offense in the least; this type of evidence/argument is an attempt to persuade the judge that circumstances are such that he should skew the punishment to the lower end or forgo it regardless of the offense.

III. Conclusion

This is not "a lot of unnecessary line-drawing." It's a plain reading of the actual words of the statute. Offense has a specific meaning. The General Assembly put the words "mitigation of the offense" into the statute, not "mitigation of the sentence." The use of offense gives "the manifest intention of the legislature, clearly disclosed by its language" and substituting sentence in place of offense would be the forbidden "interpretation of Code § 19.2-303 that is inconsistent with the statute's plain language." There is no way to read the last paragraph of § 19.2-303 to give the judge unfettered power. The language of the statute, particularly in light of the caselaw interpreting it, simply does not support such an assertion.


Anonymous said...

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...

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.

Anonymous said...

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.

Anonymous said...

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...

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. ;-)

Donte Russo said...

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?