If you are being tried for a Felony in Virginia, you have two important choices to make (among others) about your case. First, you need to decide if you want your guilt determined by a Judge or by a jury. Thanks to a new law, you may now also chose whether you want to be sentenced by a Judge or the jury if you are found guilty at trial. The default now is that you are to be sentenced by a Judge, unless you elect for jury sentencing.
Why Does It Matter Who Sentences Me?
Much about the sentencing process can be somewhat opaque and unclear to those unfamiliar with the Virginia criminal process. Part of our job is to help make sure you understand the possible outcomes facing you.
All criminal charges have a prescribed sentencing range. Sometimes, there is a mandatory sentence. Some sentencing ranges have a “minimum” that isn’t really a minimum. Once you are sentenced, a Judge can suspend a portion or all of that sentence, meaning that you have less active jail-time than your sentence initially reflects. And once you are serving your incarceration time, you also earn good time credits that can fluctuate based on whether you are convicted of a misdemeanor or a felony, and how “good” your good time is. This is all to say that figuring out your likely sentence can be less than straightforward, and your attorney should help you understand what you are facing.
When a Judge decides your sentence, a Pre-Sentence Investigation is done, and a report is provided. The report is a deep evaluation of you, your life, and your circumstances for the Judge to consider, and will ultimately be used, among other things like your criminal history and the specifics of your offense, to calculate Sentencing Guidelines. While the Judge will need to consult these guidelines, they are not binding (except to the extent there is a mandatory minimum involved).
Ultimately, a Judge will have more discretion with your sentence, and Jury’s are generally thought to give harsher sentences than Judge’s do.
Before the recent change in the law, you had to pick between a Judge or a jury for your whole case. This meant if you wanted a Jury to decide your guilt, that Jury also decided your sentence, which may not be ideal. Now you can have a Jury decide your guilt, and if you are found guilty, you can have a Judge decide your sentence.
But, there has also been another new addition to the law, which says that if you are going to have Jury decide your sentence, then as part of voir dire (the initial questioning to determine suitable jurors), your attorney can inform the Jury of the possible sentence for your charge, to ensure that they can sit impartially, knowing what sentence you face if they find you guilty. This has the added effect of making sure jurors know how serious the outcome can be for you, which may reinforce how strictly they consider the reasonable doubt burden of proof that the Commonwealth must meet. Previously, a jury would have no knowledge of what kind of sentence was in store if they found guilt, and many jurors were shocked to learn how harshly they had to sentence defendants.
Sentencing Options Are an Important Part of Your Case
Sentencing is not something that should only be thought of at the end of a case. It is not an afterthought.
Sentencing options should be considered at the outset of your representation. The sentencing guidelines worksheets are publicly available. Your attorney can use those to figure out what kind of risk you have in taking a charge to trial, and to evaluate the merits of any plea that may be offered. Whether your case will be tried by a Judge or a Jury, and whether a Judge or a Jury will decide sentencing is an important strategic decision that will effect how you prepare for trial. Your attorney should be considering sentencing issue through your representation.
Hire a Virginia Criminal Defense Team You Can Trust
The attorneys of our client-focused Criminal Defense Team are prepared to talk with you about all of your options, and weigh the potential risks and benefits of any choice we make together. Contact us to learn how we can help you if you are charged with a crime in Northern Virginia.
