On October 7th, 2020, lawmakers passed the Deferred Dispositions legislation in Virginia. A deferred disposition refers to suspending the imposition of a sentence. The law allows the court to accept a no contest or guilty plea but suppress the finding of guilt. Under Va. 19.2-300, sentencing is withheld pending the mental health evaluation of a defendant charged with a sex crime that shows sexual abnormality. The court also imposes a series of terms and conditions a defendant must abide by for the court to dismiss their charges. At Virginia Criminal Attorney, we understand the impact of mental health issues on a person’s behavior. We can help increase your chances of dodging the repercussions of a conviction if you suffer from psychiatric concerns that impair your reasoning.

You cannot underestimate the importance of having reliable legal representation. The arguments tabled by your attorney will play a significant role in determining whether a judge will grant deferred sentencing on psychiatric grounds. Note that the Northern Virginia and Fairfax courts have the discretion to grant or deny deferred sentencing based on the facts of a case. Moreover, a competent attorney will increase your likelihood of having your charges dismissed or reduced once you obtain the mental health evaluation report.

Va. 19.2-300 Explained

A deferred disposition under Va. 19.2-300 is typically accompanied by probation conditions. The statute makes it mandatory for a defendant to undergo mental evaluations to determine their state of mind and reasoning capacity.

Va. Code19.2-300 allows a judge to defer sentencing for a mental evaluation of a person charged with an offense that indicates sexual abnormality. A judge can take the initiative to order a psychiatric exam or can grant deferred sentencing following a filed application by a defendant’s counsel. Ideally, the report from a court-approved psychiatrist should guide the judge in deciding the most befitting punishment for a convicted defendant.

The law allows a defendant to have mental health exams from any licensed psychiatrist certified by the Commonwealth as a sex offender treatment provider. The expert in question must be licensed and reasonably experienced in performing psychiatric evaluations. If a defendant cannot find such an expert, the court will appoint a state-licensed social worker with the relevant qualifications on their behalf. Note that the Commissioner of Behavioral Health and Developmental Services must approve the psychiatrist performing the examinations.

Generally, a defendant's mental state determines whether the psychiatric evaluations can take place from a mental facility or jail. By law, hospitalization while performing the examinations must not exceed 30 days.

Circumstances Under Which the Court Can Order a Mental Evaluation

As aforementioned, a judge can take the initiative to order a mental evaluation. Often this happens when there is reason to suspect that a defendant’s mental condition triggered the commission of a crime.

Let us have a look at ordinary circumstances where the court can postpone sentencing until a defendant undergoes a mental health exam:

Using the Insanity Defense

Anytime a defendant’s counsel uses the insanity defense, this automatically triggers a need for a mental health evaluation. A judge allows the exams before imposing punishment, especially for capital offenses like murder or terrorism. If you use the insanity defense to fight sex crime charges, you need a highly skilled attorney who can table arguments and evidence that convince the court of your mental challenges.

Virginia has no law code that defines the test for insanity. However, the court can consider a defendant morally blameless of a crime if a mental concern causes the following:

  • A lack of understanding of the character, nature, and consequences of an action
  • An inability to differentiate right from wrong
  • The inability to resist an impulse

Your attorney will argue that you were impaired and could not appreciate or understand your conduct and its consequences because of a specific mental disease. It will also be necessary to show that a defendant had a mental illness during the commissioning of a crime.

It remains imperative to understand that if your counsel claims insanity as a defense, you bear the burden of proof. Providing substantial evidence that shows a defendant was in an impaired state of mind can lead to a “Not Guilty By Reason of Insanity” verdict.

If you are found not guilty because of insanity, this does not get you off the hook for a crime. However, it frees you from all criminal penalties. Based on a psychiatrist's recommendations, the judge can then order hospitalization in a mental hospital for an indefinite period. These recommendations outline the following:

  • A defendant’s potential danger to self
  • The accused’s potential danger to other people
  • The length of a potentially helpful treatment plan

In Virginia, the average length of confinement in a mental facility is 6.5 years. Most defendants remain in custody for much longer, with some remaining in a mental asylum for longer than they would have spent in jail following the usual trial proceedings.

Claiming Incompetence

The incompetence defense is different from the insanity defense. The main similarity is that both defenses can result in deferred sentencing for mental health evaluation. The legal definition of incompetence is that the defendant’s mind cannot comprehend the nature of charges they face.

Again, the court will order mental health exams before imposing a sentence. The befitting punishment for an offense is different when a qualified psychiatrist establishes that the accused cannot rationally or factually understand the trial proceedings.

If it is affirmed that the defendant is indeed incompetent to stand trial, the judge will order a competency restoration program. If accused of a misdemeanor, the program runs for a year and takes place in county jail within specialized competency restoration units. However, defendants charged with felonies are hospitalized for up to 2 years while undergoing a competency restoration program.

As we mentioned earlier, a mental evaluation under Va. Code 19.2-300 can only run for a maximum of 30 days. If a psychiatrist confirms that the defendant is sane or competent to stand trial, the criminal proceedings will continue. This allows the judge to impose the typical sentence that befits a specific sex crime.

Possible Outcome of a Deferred Disposition Under Va. Code 19.2-300

A deferred disposition can help you avoid a conviction even after a judge confirms facts sufficient to find you guilty of a crime. The only difference between the usual trial proceedings and deferred sentencing is that the latter involves the judge postponing entering the final conviction on record. During the probationary period, a judge can set the following terms and conditions:

  • Fines and restitution to the victim(s)
  • Community service
  • Substance abuse treatment programs
  • Cognitive-behavioral therapy
  • Mental health counseling

It is imperative to understand that deferred sentencing can only happen voluntarily. The defendant must admit guilt of committing a crime or enter a no-contest plea. No contest implies that the accused will not fight the charges and instead allow the court to impose the befitting punishment. Entering a no-contest plea offers more benefits because your admission of guilt cannot be used against you in a civil court.

If a defendant refuses to voluntarily enter a guilty or no contest plea, the court cannot grant deferred sentencing. Instead, the accused will have to exercise their right to defend themselves against the imposed criminal charges.

When all the requirements of deferred sentencing are met, the defense attorney will need to create an agreement with the Commonwealth. The agreement outlines the following:

  • The expected period of deferred sentencing
  • Terms and conditions a defendant must meet during this period
  • The expected outcome of successfully complying with the set terms and conditions

Essentially, accepting the deferred sentencing also means that you agree on two aspects:

  1. The judge can rely on your plea (guilty or no contest) and impose a sentence for the original crime if the metal test exams have an unfavorable outcome
  2. You waive your right to appeal if found guilty

Va. Code 19.2-298.02 outlines the deferred entry of judgment statute. The law requires a judge to consider various factors, including:

  • The mitigating factors allied with a crime or the defendant
  • Any requests from the victim(s)

If psychiatric reports confirm that a defendant is mentally unstable, a judge will order any of the following during the final disposition:

  • Sentencing of the original crime
  • Conviction of a lesser charge
  • Dismissal of the proceedings

The outcome of the final disposition will depend highly on whether a defendant satisfactorily complies with the probationary terms and conditions. The satisfactory completion of probation often results in dodging a criminal conviction and qualifying for record expungement. On the other hand, unsatisfactory completion of probation means the case will continue to the sentencing phase despite mental health evaluation.

What Will Happen To Your Record After Deferred Sentencing?

Following deferred sentencing, where a defendant’s charges are dismissed after probation, their record will indicate that the case was dismissed. Note that the database will still show that a defendant faced charges, although it will also show that they received a deferred disposition and were not convicted for a crime.

Previously, it was impossible to have a deferred sentencing record expunged. This is mainly because a defendant admits guilt, making it crucial for law enforcement and the public to know about a case. The main benefit of a deferred disposition is that it could help an accused person avoid a conviction.

Thanks to recent law reforms in Virginia, you can expect the following after a deferred sentence:

  • Automatic expungement of a criminal record (under law provisions expected to be effected before 2025)
  • An agreement between your attorney and the Commonwealth that you qualify for record expungement (the judge must indicate this in the final disposition)

Automatic criminal record expungement even after the new law is implemented will not happen immediately after a judge dismisses your case. However, you can expect immediate record expungement if the Commonwealth qualifies you for record expungement.

You cannot afford to underestimate the importance of enlisting the best criminal defense attorneys, especially when facing charges for a sex crime. Irrespective of the facts of your case, a skilled lawyer can provide in-depth guidance about your legal options and strategies that can help you avoid a conviction. We are familiar with the local judges and prosecutors at Virginia Criminal Attorney. This enables us to provide comprehensive legal guidance about the available strategies and the perks and risks of their potential outcomes.

Understanding What Mental Health Evaluations under Va. Code19.2-300 Entail

Under Va. Code19.2-300, a judge postpones sentencing pending the mental health exams of a defendant accused of a sex crime that demonstrates sexual abnormality. Therefore, the judge will demand a psychosexual evaluation. The tests can come in handy during the pre-plea or pre-sentence phase and help a defendant avoid a conviction or mandatory sex offender registration.

For a defendant to benefit from deferred sentencing under Va. 19.3- 300, they must have committed an offense of a sexual nature. This can include any sex crime that shows apparent deviation from what is generally considered acceptable sexual behavior. Some “abnormal” sex crimes include having non-consensual sex or sexual contact with a minor or family member.

It is crucial to understand that you cannot receive any directives from your attorney during a court-ordered mental health exam. However, your attorney can provide invaluable guidance if completing a psychosexual examination is part of the defense strategy and protected under attorney-client privilege.

It is crucial to consider the option of enjoying a deferred sentence for mental health examinations carefully. The exams involve using scientific methods to establish the defendant’s state of mind and sexual functioning. These exams can positively or negatively impact a case, depending on the report tabled by a psychotherapist. For example, it can indicate that a defendant has no fondness for being attracted to children. It could also show that the accused is a hands-on offender who is not a good candidate for probation or rehabilitation.

Ideally, the prognosis should categorize the sex offender as level I, II, III, IVa, or IVb. It also gives a score to the unusualness of their conduct and demonstrates how it compares to the behavior of usual sex offenders. Most importantly, the prognosis must highlight the amenability of sexual deviancy and possible treatment.

Generally, the psychotherapist will look into the following topics:

  • A defendant’s sexual development history, interests, deviance, sexual arousal patterns, and paraphilic disorders
  • The scientific cause or effects of a mental disorder
  • The accused’s level of denial in comprehending their actions or justifying them
  • A defendant’s acceptance of their accountability for a sex crime
  • Level of coercion or violence
  • The relevance of a mental disorder to the committed sex crime
  • Use of drugs or other controlled substances
  • Recent coping behaviors
  • A defendant’s medical or neurological needs
  • The accused’s cooperation or motivation for treatment
  • Other high-risk behaviors and a detailed re-offense risk assessment
  • Type and level of treatment and supervision required

What to Expect During Mental Health Evaluations Under Va. Code 19.2-300

Mental health evaluations for a sex crime indicating sexual abnormality (psychosexual evaluations) are often divided into four sections. These sections include:

Clinical Interviews

Clinical interviews involve allowing a defendant to express themselves. The psychotherapist will ask a range of questions to understand the family history of the accused and their history of intimate relationships. The questions can also help the therapist know something about the defendant's educational background and mental health issues, among other aspects.

Most importantly, the psychotherapist will ask the accused about the allegations they face and note any critical impressions or observations. Sometimes, clinical interviews involve inviting a defendant’s family members to describe their relationship with the accused.

Psychometric Tests

The psychometric test involves assessments designed to understand a defendant’s sexual history, sexual development, background, and intelligence quotient (IQ). Note that the outcome of the psychometric test also helps the therapist determine a defendant's capability to respond well to mental health treatment.

Psychological Assessment

Mental health evaluations under Va. Code 19.2-300 also entails psychological assessments. They help determine whether the accused's actions in relation to a sex crime are likely to reoccur or were just a one-off behavior.

Some of the tests that come in handy during psychological assessments include:

  • Penile plethysmography — Penile plethysmography is a test designed to understand a defendant’s sexual arousal patterns. They measure the changes in blood pressure, arousal, and breathing patterns when a defendant is introduced to visual, auditory, or emotional stimuli involving sexual acts with children and adults. Ideally, the tests gauge the accused’s pedophilic sexual interests, among other deviant sexual attractions.
  • Polygraph tests — Polygraph tests are commonly used to verify whether a defendant is telling the truth about their lack of involvement in a sex crime. These tests also come in handy when assessing the sexual history of the accused. The psychotherapist will indicate the accuracy of the assessments in their report for the judge’s consideration when setting probation or mental treatment terms.
  • Visual reaction time — Visual reaction time tests assess the defendant's degree of interest in looking at particular objects. The tests help determine their degree of sexual interest or preference to persons of different genders and ages.

Risk Assessment

Risk assessment tests consist of two main parts:

  • General criminality — General criminality tests help to determine a defendant’s risk of recommitting crimes
  • Sexual recidivism — The tests evaluate the accused’s risk of recommitting a sex crime

Again, the report and recommendations of a psychotherapist play a significant role in helping a judge decide the best course of action.

How Can Your Attorney Use Deferred Sentencing For Mental Health Exams To Your Advantage?

Unless the court orders a mental health evaluation, the outcome of the tests can remain between you and your defense attorney. Your lawyer will only bring up the test results if they can benefit your case. Sometimes, a psychosexual evaluation test report increases the chances of enjoying a better plea bargain, a reduced sentence, or even having a case dismissed.

There are numerous ways a skilled attorney can leverage the power of a favorable psychosexual evaluation report. For instance, even for defendants who entered a guilty plea, the report can be used as a mitigating factor that cuts off a decent number of years from a sex offender’s sentence. Also, if the report indicates the accused is unlikely to recommit a sex crime, your lawyer can argue that this is enough reason to excuse you from having to register as a sex offender.

One of the primary duties of your attorney is to prepare you for the mental health evaluation. You will know the benefits and risks of requesting deferred sentencing to undergo the exams. The easiest way to ensure your defense provides reliable legal guidance is to be as honest as possible, even about sensitive subjects. This includes your sex crime history or criminal sexual conduct on incidents that the law enforcement knows nothing about.

Fighting sex crime charges, especially for an offense that demonstrates the defendant’s deviation from what is considered sexually acceptable behavior, is challenging. At Virginia Criminal Attorney, we will prepare you for the process to increase the chances of obtaining the best outcome. You must not underestimate the importance of having the best legal counsel because you cannot redo the test if you “mess up” the first try.

Find a Criminal Defense Attorney Near Me

Sometimes, the good relationship between an attorney and the prosecutor is not enough to achieve a favorable outcome. It is typical for the prosecution to aggressively pursue sex offense allegations, especially those that show sexual abnormality like child pornography, child molestation, or sexual contact with a minor. By filing for deferred sentencing under Va. 19.2-300, we can have your sentence postponed until you undergo a mental health exam. At Virginia Criminal Attorney, we understand that a favorable report from a psychotherapist can make all the big difference in the outcome of your case. We will prepare you, ensuring you have maximum chances of having the case dismissed. For a 100% free and confidential case evaluation in Fairfax, VA, and Northern Virginia, call us at 703-718-5533.