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.