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Jury Sentencing and Why it Matters in Virginia

Posted by George L. Freeman | Feb 04, 2020

Who has the right to a trial by jury?

You do, of course.  The Sixth Amendment to the United States Constitution guarantees the right to a jury trial if you are facing more than six months confinement in jail.  Under Virginia law, you have the right to a jury trial for any matter that is traffic or criminal law related.  That's right, you can ask for a jury if you want a trial for the offense jaywalking or if you are ticketed for violating HOV lanes.

The COMMONWEALTH, that is to say, the state, has a jury trial right as well.  This means that in Virginia even if you do not want a jury trial - meaning you want a judge to decide your case - the Commonwealth has a state constitutional right to a jury trial.  (see Constitution of Virginia, Article I, Section 8).  While an individual has the right to demand a jury, he does not have the right to refuse a jury.  In Virginia, even if the defendant and the Commonwealth want a bench trial (a trial where the judge decides the case) the judge can still require a jury be empanelled. 

What does it mean that a jury, after finding guilt, ascertains punishment?

If you are on trial by a jury and they convict you (find you guilty of the crime or traffic infraction charged), they also fix your punishment.  They decide your sentence.  But further explanation is needed.  Suppose a person is convicted of Robbery.  The range of punishment for that offense is 5 years imprisonment or up to Life.  Next, suppose the jury sentences the person convicted of Robbery to 25 years in the penitentiary.  Will he serve 25 years?  Parole in Virginia is abolished (generally speaking).  He must serve at least 85 percent of his sentence imposed.  However, the trial judge can suspend some of the jury's sentence.  This means that even though the jury may sentence the robber to 25 years, and even though the judge must impose that sentence, the judge can also suspend some of the sentence and order probation.  An example could be this: 25 year jury sentenced imposed, with 10 years suspended, followed by 20 years of probation.  This example sentence would require the robber to serve at least 85 percent of 15 years.  Once he was released, he would be on probation for 20 years with the remaining 10 years hanging over his head. 

Trial judges in Virginia typically impose jury verdicts.  This means that the jury sentence is not reduced or suspended.  However, every case is different.  Whether a judge suspends some of a jury's sentencing verdict will depend on the defendant's criminal record, the nature of the offense committed, and any other mitigating factors presented to the Court. 

Why does jury sentencing matter?

Jury sentencing matters significantly in deciding whether to accept a plea, or whether to take a case to trial with or without a jury.  Take for example the offense of Distribution of Cocaine.  The range of punishment for that crime is 5 years but not more than 40 years.  If you elect a jury trial and are convicted, the jury must impose at least 5 years.  And, if you happen to be in front of a judge that typically does not reduce jury verdicts, you may be sentenced to 5 years of active incarceration in the penitentiary.

Virginia has Sentencing Guidelines.  These are calculations that recommend a range of punishment after assessing multiple factors.  A person without a record, who is being sentenced to one count of Distribution of Cocaine (less than 28 grams) will likely have a sentencing range recommendation of 7 months to 11 months.  This means in such a case, it may be better to ask for a bench trial and hope the Commonwealth agrees.  While a judge is not bound to follow the guidelines, they are helpful in predicting potential penalties you may face.  Assuming the judge followed the guidelines, your sentence could be something like this: 5 years incarceration imposed, with all  5 years suspended but for 7 months, followed by 5 years of active probation.  This sentence would also be possible upon a plea of guilty.

The Commonwealth must also provide you with a notice of intent to use prior convictions at sentencing.  This means that if you are on trial and a jury is deciding your case, and if you are convicted, the Commonwealth cannot show the jury your prior convictions (if you have any) unless they have obtained certified copies of those convictions and given you a proper notice before trial.  Your prior convictions can affect your guidelines dramatically.  Here is an example: if you have no record, and are being sentenced to one count of Grand Larceny, your guidelines would likely call for Probation/No Incarceration.  This means the recommended sentence from the Virginia Sentencing Guidelines would be for you to serve no active jail time.  Change the facts: suppose you have 5 prior felony convictions.  The sentencing guidelines may now call for a recommended punishment range of between 2 and 5 years.  If you are in the latter category, and the Commonwealth fails to file her notice of intent to use prior convictions, a jury trial may be best for you because the jury will never know your record when you are sentenced by them.  On the other hand, if you have a clean record, you may prefer a bench trial because a jury may be more inclined to give at least some jail above the sentencing recommendation of Probation/No Incarceration.  Remember, the jury does not see the Virginia Sentencing Guidelines results.

Also noteworthy, a judge can suspend a jury's sentencing verdict but cannot increase the verdict.  In other words, a jury's sentencing verdict acts as a cap for what your ultimate sentence could be.  Some offenses, however, are known as mandatory minimum offenses.  This means that whatever they mandatory minimum time period is, it cannot be suspended by the judge and must be imposed at sentencing.

These matters can get very complicated and small factors can make a big difference when deciding how to execute your defense strategy.  Whether to request a judge or jury, and whether to accept a plea or proceed to trial are crucial issues you have to make.  The best way to make these decisions is to understand the system and work closely with your lawyer. 

About the Author

George L. Freeman

I was born and raised in Fairfax County.  I graduated from Fairfax High School and then from Virginia Tech.  After spending a few years as a bail bondsman and court clerk, I attended the University of Baltimore, School of Law.  I graduated in 2010 with a Juris Doctor, manga cum laude. I spent 9 ...

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