After a number of misdemeanor convictions, Defendant is facing her first felony conviction. There's no doubt as to guilt (committed a felony in the presence of an officer), but the sentencing guidelines are really strange. If Defendant has spent any time in jail the guidelines will recommend she get over a year; if she has not the guidelines will recommend probation. Neither seems appropriate. Anyway, per the record, she served 10 days back in 2001, so it looks like she's going to go away for a while.
We all get to court and I give Attorney the plea offer and show him Defendant's guidelines. He goes off and talks to his client. Then he comes back. "She says she's never spent any time in jail." Uh-huh. Sure. I fire up the computer and connect to the Virginia Supreme Court's site. We look at the record of Defendant. Sure enough, February 2001 Defendant was sentenced to 90 days with 80 days suspended.
Attorney calls Defendant to the front of the courtroom and points at the screen. "Says here that you went to jail in 2001." Defendant, looking over my shoulder at the screen, "No sir. I did not. I remember coming to court for that, but I never got no jail time." Attorney decides that he needs to ask Judge for a continuance so he can check this. Judge says, "Attorney, your case is the last of the day, but I've got about an hour of paperwork waiting back in my office. This conviction was from our misdemeanor court. Go check it out and come back."
So off we go (after Defendant begs off to Attorney because she needs to go get a smoke). Attorney and I get walk down the hall to the clerk's office, which is luckily fairly empty of business. A helpful clerk takes about 10 minutes to hunt up the old file.
Right at the top it states "Guilty: Snipe Hunting Punishment: 90 days / 80 ssp." Then we read further down the sentencing document and find "10 days Hwy cleanup shall count as jail time."
WHAT THE HECK IS THAT?!?
We're not sure what to do with that. She was sentenced to 10 days in jail, but apparently the judge didn't make her go. Picking up litter on the side of the road sure isn't jail, but the judge defined it as such for this offender. Does that count against her on the sentencing guidelines under "Prior Incarceration/Commitment" or not? Neither of us are sure.
We bump heads for a little while about this. In the end, while I can make the argument that the litter patrol was incarceration - per the sentencing judge - I agree to not count it if Defendant serves some months on a misdemeanor she has appealed to the felony court. I offer this because if I lose the argument Defendant might get probation for both and I think that's entirely inappropriate. Attorney, knowing that if he argues the litter patrol shouldn't count as incarceration - no matter what the sentencing judge said - he might lose and that decisions the felony judge makes about sentencing guidelines cannot be appealed, recommends it to Defendant as better than risking over a year. She jumps at it.
The rest went pretty much according to normal procedure. Defendant pled guilty, got probation on the felony and months on the misdemeanor. And thus ended another strange day in the courtroom.
The Sentencing Commission maintains a hotline for answering questions that arise when scoring the guidelines. I realize that in this case you worked things out by agreement (properly so, it sounds), but I wonder if you thought about calling them? In my experience they're usually very helpful.
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