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Enhanced Penalties

Fairfax Criminal Defense Attorney Explains: Penalty Enhancements in Virginia

We have set forth the penalty ranges for the crimes discussed on this site. However, Virginia imposes enhanced penalties in many instances if certain criteria are met, namely that the defendant has certain prior convictions. Almost always, for the enhanced penalties to apply the Commonwealth must affirmatively charge, or allege in the Indictment, that an enhanced penalty is sought. What's more, a jury will learn of the prior predicate criminal convictions during the trial. Though a jury cannot use prior bad acts as evidence that you committed the instant offense, such evidence is damming and potentially unfairly prejudicial. 

Certain offenses are predicated on prior offenses - meaning without the prior offense or offenses you don't have the offense though you may have a lesser offense.  Felony DUI 3rd is predicated on the defendant having committed at least two prior DUIs. At trial, evidence of those prior offenses are admissible; in fact, proof of those prior convictions is an element the Commonwealth must prove.  The same is true for Felony Petit Larceny, 3rd; Felony Concealed Weapon, 2nd; Felony Domestic Assault, 3rd; Drug Distribution, 2nd - to name the most common. All of those offenses has as an element, under Virginia case law, proof of the priors.

To be subject to enhanced penalty offenses, you must be charged as a recidivist. A defendant may find himself in a situation where he feels compelled to plead guilty to a lesser offense to avoid indictment and trial on an enhanced penalty offense. The prosecutor usually dangles the offer, "plead to a "first" offense or be tried on an enhanced penalty offense." This is why it is critical to have a knowledgeable, experienced, trial tested lawyer advocating for you.  Knowing whether the Commonwealth's case has teeth and counseling an individual on what risks may or may not be worth taking is a critical component of a Criminal Defense Attorney's role in representing his or her client.  Contact George Freeman today, a former Fairfax County prosecutor, to discuss your situation.

In Apprendi v. New Jersey, the United States Supreme Court held that any aggravating factor that enhances punishment must be proved beyond a reasonable doubt except if the aggravating factor is a prior criminal conviction. Notwithstanding the exception, Virginia law makes the the aggravating factor of a prior conviction an element of proof in most instances - this means the jury will learn of your prior offenses during the guilt phase of trial.  The most notable exception is Use of a Firearm in the Commission of a Felony.  For reasons unclear, to be frank, Virginia case law mandates the enhanced penalty regardless of what is alleged or proven at trial for this offense.  A first offense is punishable by 3 years, mandatory minimum, and every subsequent offense by 5 years mandatory minimum. Otherwise, when a charge is brought and it is predicated on a prior conviction, the jury will learn of that prior bad act during the course of trial, before sentencing.

Virginia's Three Strikes Law

The laws that will be discussed below are sometimes referred to as "three strikes" laws, or in some instances "two strikes."

Virginia Code Section 19.2-297.1 is Virginia's "Three Strikes" law for violent felony crime.  Upon conviction for a third violent felony offense, the punishment under this law is mandatory life in prison.  The violent felony offenses that are subject to this law are:

  • murder
  • voluntary manslaughter
  • mob-related felonies
  • any abduction
  • any malicious wounding or malicious felony assault
  • robbery
  • carjacking
  • any felony sexual assault
  • arson of any occupied structure or dwelling

If you have two or more of these type of felonies on your record as convictions, then any subsequent offense of any one or more type of felony listed will subject you to a potential mandatory Life sentence. Conspiracy to commit any violent felony offense set forth above constitutes an offense subject to an enhanced penalty.   

Virginia has "Two Strikes" laws for certain felony sexual assaults - 18.2-67.5:2 & 182.-67.5:3.  For sexual offenses, the "strikes" can get you on a second offense.  For certain felony sexual assaults, upon a second conviction you will be sentenced to the maximum period of incarceration for such offense.  For violent felony sexual assaults - rape, forcible sodomy, object penetration, abduction with intent to defile - upon a second conviction of such an offense you will be sentenced to mandatory Life in Prison. Conspiracy to commit a felony sexual assault or violent felony sexual assault constitutes an offense subject to an enhanced penalty as well.

To be subject to Virginia's "strikes" laws does not require like offenses be committed.  For example, if you are convicted of robbery - sentenced and released, then convicted of abduction - sentenced and released, any other violent felony from the list above will permit an enhanced penalty.  You need not be convicted of three identical offenses; as long as the predicates are in the categories set forth - violent felony, felony sexual assault, or violent felony sexual assault - the respective statutes could apply.

These enhanced penalties are triggered when the Commonwealth's Attorney elects to file notice of such. Otherwise they cannot be imposed at sentencing - meaning traditional sentencing ranges are applicable. For most of the enhanced penalties under Virginia's "strikes" statutes, the penalty is mandatory Life upon conviction. 

Here are some basic points:

  • The offenses subject to the "strikes" laws are all violent felony crimes or felony sexual assaults. 
  • The prior offenses must not relate to each other - that is to say, cannot be part of the same common act, scheme or transaction - and the current offense must not be part of the same common act, scheme or transaction as the predicate acts. All of the offenses must be unrelated to each other. 
  • The defendant must have been at liberty - not incarcerated - between any offenses. Simply put, the law is punishing those who are released back into society and reoffend, not those simply charged with several offenses or those that commit offenses while in prison. 
  • A person sentenced to an enhanced penalty may be eligible for geriatric conditional release - but this is very rare and shouldn't be expected. To be eligible, the person must be at least 60 years old and have served at least 10 years of their sentence or be at least 65 years old and have served at least 5 years of their sentence. (It appears the legislature did not intend for a person sentenced under 18.2-67.5:3 to be eligible for geriatric conditional release based on the bill summary when enacted, though the statutory language is somewhat ambiguous).

Enhanced penalty laws are remarkably serious and can effectively end one's life in free society.  If you or a loved one is facing prosecution for a serious felony, consult with a skilled trial attorney. George Freeman is a former prosecutor and a highly experienced Fairfax Criminal Defense Attorney. Call today to discuss your case.

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