A Eureka Moment

Ya'll will remember the jury trial I had a while back over which I got just a wee bit upset.

A couple days ago we had the sentencing hearing. I'm scrambling to find some way to keep my client from getting the mandatory 5 year sentence for being in possession of a firearm after having been adjudicated a juvenile delinquent for an act which would have been a violent felony if he'd been convicted as an adult. The judge had already rejected my argument at trial that because my client was adjudicated rather than convicted, and the two mandatory punishments both apply to those "convicted", he should only be subject to a class 6 felony and not the mandatory punishments.

At sentencing I intend to attempt to get the mandatory punishment down from the 5 years the jury was told it would have to impose to the lower mandatory of 2 years (with a possible max of 5). To that end I'm developing a Blakely argument. I spend a good amount of time figuring out how Blakely can be used in this case, with this statute, under Virginia's sentencing scheme. The only problem is that I'm worried the argument is too complex. Having done this for a while if my argument is x(y-3) / 4(z-2) = 2, and I think the prosecutor's is going to be 1 + 1 = 0 +/-1, I worry that the prosecutor will win because his argument is somewhere in the ballpark and it's easier to follow (I'll assume, without admitting, that prosecutors have the same worry if their arguments get complex). I keep working the argument over, trying to make it simpler and making sure all the steps in the argument are as understandable as possible.

Then comes the day of sentencing. I have purposefully set the morning aside for prep (sentencing is at 1:00). I'm sitting in my office going over the paperwork and cases, making sure I have all my ducks in a row. But something's bothering me and I can't quite put my finger on it. I go back and look through all the paperwork. I look through some case law. I read through the appropriate portion of Professor Groot's Criminal Offenses and Defenses in Virginia. I go back and read the felon in possession of a firearm statute (yet again). Nothing is overtly wrong.

And then it dawns on me: everything, and I mean every last bit of paperwork, which was done in this case by someone other than a lawyer or judge is treating this as though the requisite felony was not a violent one. Most interestingly, the probation officer's sentencing guidelines state that my client should only get the mandatory 2 years instead of the mandatory 5 years. I had thought that was due to errors in the paperwork from the prosecutor's office which were relied upon by the probation officer (seen that happen many a time); however, this probation officer isn't one I've seen make too many errors of that type.

Although Client's final disposition only noted an A&B, the original charge was assault and battery of a police officer, 18.2-57(C). The Virginia "exile" statute, 18.2-308.2, doesn't list those felonies which are violent felonies; it refers readers to 17.1-805, which is a list of violent felonies in the section of the code which enables the sentencing guidelines. While I'm sure that assault and battery of a police officer is a violent felony, I flip over to that section to check.

OMG. It's not there! The crimes which are violent felonies are listed in numerical order and run up to 18.2-55 (battery of a juvenile detention employee with intent to injure) and then skip to 18.2-57.2 (felony domestic battery). Assault and battery against a police officer isn't a violent felony. I read the statue over again a couple of times, carefully. I go back and read the exile statute yet another time to make sure there's no other definition of violent felony. Eureka! Here's my simple, direct argument as to why the 5 year penalty should not be the one imposed (1 + 1 = 2).

A couple hours later it's time for my client's sentencing hearing. When I get to court my client's mother, father, grandfather, aunt, sister, and 5 friends of the family are present. It's an amazing amount of support for a court appointed client (most of whom don't even have any family support). No pressure here. Actually, they're quite decent people who ask intelligent questions and understand when I tell them what is going on.

I step up to the podium first and explain to the judge what I've found and ask for a mistrial because the jurors were incorrectly instructed that they had to sentence my client to 5 years. The judge and I go back and forth a couple of times as to whether there would need to be a mistrial in toto or just as to the sentencing portion of the trial. I pushed for an entirely new trial but I was losing that argument with the judge, who is pretty obviously contemplating a new jury for just the sentencing part of the bifurcated trial.

The prosecutor gets up and asks the judge for some time to look at the statute. The judge recesses the hearing and the prosecutor goes off to research the point. When he comes back he cedes the point in this case; he doesn't do so generally because he believes a catch-all phrase at the end of the list of violent felonies could apply. Then I get up and tell the judge that if the choice is between empaneling a new jury just to impose a sentence or having the judge correct the error in the sentencing hearing we would rather withdraw the motion for mistrial. The judge states that he was only going to allow a new jury sentencing and allows the motion to be withdrawn.

Then we do the sentencing hearing. I introduce a letter from Client's boss relating that Client is a valued employee and point out to the judge all of Client's friends and relatives in attendance. Then the judge asks my client if he has anything to say before he is sentenced. I tell the judge that my client's not going to make any statement "on advice of counsel" because the court of appeals considers the trial "in toto." What I'm concerned about is that even actually innocent clients will make a general apology (for this trouble, to the court, etc.) and the court of appeals may view that as an admission. Of course, there's also the possibility that a strong willed client could tell the judge off and denounce a conviction for a firearm the government affirmed his right to purchase; I don't want that to happen either.

With that, the judge reduces the sentence to 2 years. I try to get Client an appeal bond, pointing out that Client has a job, strong family support (he's not going anywhere), and how long it will take for an appeal. The judge won't agree to one but tells me we can come back if the appellate court grants a hearing on the matter (at the very least 4 months down the road). I go in lockup and talk with Client about all this. Then I walk out of the courtroom and there's everyone who came for him standing there, waiting. I spend the next half hour answering all sorts of questions. They are, understandably, upset that Client did not get an appeal bond. However, they aren't ranting at me they, are asking intelligent questions and intelligent follow ups. I'm impressed. After I've answered every question they can think of about the trial, appeals process, and who is above the judge (answer: the courts appellate and the General Assembly) they leave, unhappy with the results but satisfied that I have the situation in hand.

I go down to the clerk's office to get some information so that I can file an appeal. The clerk who's helping me looks at me and says, "No, you're not going to file another appeal on Judge Smith are you?" She grouses, in a friendly way, that I am keeping her busy because she is the clerk who does all the appellate paperwork for Judge Smith. I confirm that another appeal is coming her way and we both laugh a little over it. When I got back to my office I checked my appeals and all the current cases on appeal from this circuit (4 in various stages) are from Judge Smith; that's quite a feat considering there are 4 other trial judges in the circuit. In fact, he has 4 of my 6 current appeals (the two others are from Judge Jones in another circuit). I might have to rectify that; I wouldn't want the other judges to feel neglected.