If convicted of a felony in Virginia, the Virginia sentencing guidelines will likely be the most critical factor that will determine how harsh the sentence you will receive – whether it be a fine, jail time, probation, or any other penalty. Sentencing is a crucial stage in criminal cases. Often after you plead guilty or the court finds you guilty, the only option you have to reduce your penalties is to negotiate a plea agreement or reduced charges. So you need a skilled criminal lawyer who can sway the judge to give you a lenient sentence or a favorable plea agreement. At Virginia Criminal Attorney, we have lawyers with excellent advocacy skills and experience in the Virginia sentencing guidelines who can help to get you a better sentencing outcome after you're convicted.

Brief History of The Virginia Sentencing Guidelines

Legislators in Virginia established the Virginia Criminal Sentencing Commission (VCSC) in 1994. Before then, judges had a lot of leeway in sentencing felony convictions. It was common to see courts give a harsh sentence or very lenient sentence for the same offense and in similar circumstances. The sentences varied because judges looked at different factors, or weighed the factors in different ways, thus ended up punishing a similar offense in different ways.

The Virginia legislators, therefore, formed the VCSC to promote consistency and fairness in the sentencing process across the state. Since then, the VCSC has produced sentencing guidelines that judges now follow when sentencing felony cases.

It's not only judges who use the guidelines. Defendants and their lawyers also use the Virginia sentencing guidelines. To the defense, the guidelines are a starting point for negotiating plea agreements and reduced charges. So if you get charged with a felony in Virginia, you need to carefully examine how the guidelines will affect your potential punishment if convicted. Our lawyers at Virginia Criminal Attorney can help you to navigate the guidelines and negotiate a lesser sentence.

Overview of The Virginia Sentencing Guidelines

Virginia Code Section 19.2-298.01 outlines the general rules of the Virginia sentencing guidelines. The code lists the minimum and maximum sentence for a given felony based on the circumstances of the case. Thus they provide a reference for the judges' sentencing decision.

Although the Virginia sentencing guidelines play an important role in both the court and the defense, they are only advisory and not mandatory. The sentencing court considers the guidelines as an initial benchmark of a fair sentence, yet the regulations do not bind the court. Hence, a judge may sentence you to a term that is beyond the statutory maximum or lower than the minimum allowed sentence. When the sentence departs from the guidelines, the judge needs to write the reasons for the variation.

Characteristics of the Virginia Sentencing Guidelines

The sentencing guidelines play an essential role in the Virginia legal system. Some advantages of the guidelines are as follows:

The guidelines provide consistent and harmonious sentencing standards. The guidelines give the courts a coherent framework for making sentencing decisions. Now, sentencing decisions are well reasoned and based on clear and consistent standards, compared to what used to happen before establishing the guidelines.

Proportionate sentences. The guidelines lead to penalties that are proportional to the seriousness of each offense while considering the unique circumstances of each case.

Uniform sentences. The sentencing guidelines provide standards for similar offenders who commit similar crimes to receive the same penalties.

Guidelines ensure public safety. The sentencing guidelines help to serve public safety because they recommend prison sentences for violent offenders. Also, the guidelines recommend plans to rehabilitate the offenders and reintegrate them back with society.

Guidelines allow for planning and managing correctional resources. Because the guidelines enable a uniform and relatively predictable sentencing, Virginia uses the sentencing data to forecast and manage the state's correctional resources. Besides, information from the courts allows for further legislation and modifications of the guidelines.

Since the sentencing guidelines make the Virginia judicial system predictable, a skilled lawyer can advise you on the likely penalty you will get if charged with a felony offense.

With that information, you can increase the likelihood of a lower sentence if you engage a criminal attorney as soon as you become aware of a criminal charge thrown your way.

Types of Crimes Covered by the Virginia Sentencing Guidelines

The Virginia sentencing guidelines cover a wide range of felonies such as burglary, fraud, drugs, murder, rape, robbery, assault, and other related offenses.

How the Virginia Sentencing Guidelines Work

Once you plead guilty or the court finds you liable in a Virginia felony case, the court will set a sentencing hearing date. Before the sentencing hearing, a state investigator will conduct a pre-sentencing investigation. The investigator looks for relevant factors about you that the court should consider in your sentencing. Such factors typically include your criminal history, history of employment, substance or drug abuse, family, and academic influences.

During the same time, your defense attorney will also be collecting evidence to present at the sentencing hearing. Based on the evidence and mitigating factors, your defense attorney will want to argue for a sentence that is more lenient compared to the one that the state attorney recommends. A skilled lawyer could even argue for a sentence that is well below the sentencing guidelines.

Preparing a Sentencing Guideline Worksheet

Typically the court will task an officer, either a commonwealth attorney or a probation officer, to prepare your sentencing worksheet. And the Virginia sentencing guidelines require that the tasked officer completes only one worksheet for your sentencing hearing event. The sheet will lead to one sentence recommendation for the multiple charges for which the court convicted you.

.In filling the worksheet, the assigned officer works through several stages specified for your felony. Each stage has some points which the officer will sum up at the end. The total number of points will eventually determine the severity of the sentence the court will give. The more points, the harsher the sentence.

Let's say, for instance, the court convicts you of burglary. According to Virginia Code 19.2-298.01, your sentencing guideline will look into the following circumstances.

What was your primary offense? You would get more points from the onset if the primary offense was severe. Taking the example of the burglary, if you used a deadly weapon in committing the crime, or the crime happened at night, and people were in the home, you will earn more points.

Do you have secondary offenses? Apart from the primary offense, any additional offense (s) that the court convicted you will earn you more points. For instance, if you have an added charge of assault to the main burglary charge, the officer will give you more points. 

Does your offense have a mandatory minimum sentence? You will have more points added to your case if any of the primary or secondary offenses you got convicted of have minimum sentences. Some felony convictions in Virginia have mandatory minimum sentences. Charges like assault, sex, DUI, firearm, and drugs carry a minimum sentence that you must serve.

Was any weapon used in committing the offense? If in prosecuting your case, the police show that you used a gun, then more points will be lumped to you. Whatever weapon you used – whether a knife, gun, or a simulated gun, will end up giving you more points.

How is your criminal history? A poor criminal history adds more points to your case. Do you have any previous juvenile, misdemeanor, or felony convictions? Have you served time in jail? Have you been placed on probation or parole? All these circumstances are detrimental to your final sentence.

Are you currently on probation or parole? The last thing to consider will be whether you committed the current offense for which the court convicted you while on probation or parole. If you are on probation or parole, the probation officer would lump additional points to your case.

Finally, the officer will add up all points to get a total score. Using your overall rating, the officer will use a grid to convert your total score to the recommended guidelines sentence range.

When the probation officer or commonwealth attorney completes the worksheet, the judge and your defense lawyers will know the range within which your sentence should fall. And, this is where your attorney's advocacy skills can make a difference. If you have an experienced lawyer and you impress the judge in a positive way, you could get a sentence that's lower than what the sentencing guidelines provide. Or you could get a sentence within your offense's statutory limits.

Your case could be among those with a mandatory sentence in Virginia, such as DUI, sex, assault, firearm, and drug crimes. In such a scenario, the judge will consider the option to hand you the jail term plus one or more of the following penalties:

  • Order you to restitute the victim
  • Give you a probation
  • Order reporting during the day
  • Send you to a drug court
  • Order you to enroll in a program for treating substance abuse, and, or
  • Order you to enroll in a detention program to rehabilitate you, especially if you are a youthful offender.

Now you can see how crucial the sentencing stage is to your case. If you mess up this step of the sentencing process, you could end up serving a longer sentence.

 And since the Virginia State judicial system does not allow parole, you will have to serve the full sentence that the court hands you. The only escape is if you get a successful appeal of the conviction, and the court releases you. This means you don't have much opportunity to reduce your penalties after sentencing. Therefore, it's in your best interest that you have a Virginia criminal attorney who understands the sentencing guidelines to defend you.

Preparing the Virginia Sentencing Guidelines

Depending on the circumstances of your case, a probation officer or an attorney of the Commonwealth will typically prepare the sentencing worksheet.

Typically, a probation officer will complete your sentencing guidelines if a jury tried your case, or if you pleaded not guilty in a case that was tried by the court.

On the other hand, a commonwealth attorney will prepare your sentencing guidelines if you pleaded guilty to the offense or if your case has a plea agreement.

Sometimes your defense attorney will want to work with the state attorney or the probation officer to prepare the sentencing worksheet and agree on a score.

Alternatively, you could compute your sentencing score online. Since 2012, the VCSC developed a web-based application, which enables you to complete and submit the sentencing guidelines electronically. The online system allows you to complete the guideline forms, save the information for future recall, and send them to the court electronically.

But no matter who is preparing the report, you need to have a lawyer on your side who is familiar with how the guidelines work. That's important because a small error in the calculations can send you away for more years than you would otherwise have if you compute your scores accurately. If charged with a felony, our lawyers at Virginia Criminal Attorney can help you navigate the nuances of the sentencing guidelines.

Do All Virginia Judges Follow The Sentencing Guidelines?

The Virginia sentencing guidelines are advisory but not mandatory. That means a judge in your case may choose to hand you a penalty that is outside the guidelines. The judge can choose to sentence you to a more severe or less stringent punishment than that recommended by the Virginia sentencing guidelines. However, such a situation is rare. More than 90 percent of the convictions in Virginia falls within the range of the sentencing guidelines.

A judge who gives a sentence that departs from the Virginia sentencing guidelines must provide reasons for his or her departure as required in section § 19.2-298.01 of the Code of Virginia. The guidelines require that judges offer specific reasons for the departure. The court subsequently sends the reasons to the Virginia Criminal Sentencing Commission. The VCSC uses the ideas to modify and refine future guidelines to include the concerns of the judges.

The most unfortunate thing in the sentencing process is that you cannot appeal a judge's verdict on the basis that the court handed you a sentence that fell outside the range of the Virginia sentencing guidelines. So you need to work with your defense attorneys well before your case gets to the sentencing stage.

Reasons For Sentencing Below The Guidelines Recommendation

Whereas the judges will most likely sentence you within the recommended guidelines, your sentence may fall outside the recommendations. Criminal defense attorneys who know the reasons judges give for deviating from the recommended sentences have an advantage. They can use the same ideas to argue your case for less harsh punishment.

Some reasons that judges use (and which your criminal lawyer can use) to give sentences below the recommended sentencing range are:

  • If you make a plea agreement that the court accepts
  • You cooperate with law enforcement officers
  • You convince the court that you can be rehabilitated
  • You have your previous altercations with the law dropped from your worksheet score, thus lowering your total worksheet score, and
  • Other mitigating factors.

Juries and the Virginia Sentencing Guidelines

Typically, courts use three general methods to decide Virginia's criminal cases. These are jury trials, bench trials, and guilty pleas.

According to the criminal justice system in Virginia, when you are found guilty by a jury in a jury trial, regardless of whether your case is a demeanor or felony appeal, your sentence will be determined by the same panel. Unfortunately, the law does not allow juries to obtain any information about the Virginia sentencing guidelines, which a judge would have in sentencing you.

Therefore, it's more likely that a jury will hand you a sentence outside the recommended guidelines. And often, the jury’s sentence is stiffer than what a judge would give in a similar case resolved through a guilty plea or a bench trial. For that reason, it's essential, particularly in a case heard in front of a jury, that you have a skilled criminal defense lawyer to argue the sentencing aspects of your case to the jury.

Virginia Sentencing Guidelines for Violation of Probation

Sometimes the court will convict you of a felony offense but decide to give you a non-custodial sentence. This mostly happens if you are a first time or a youthful offender. Other than jailing you, the court may choose to place you under probation, good behavior terms, community-based programs, post-release supervision, or a suspended sentence.

When you violate any of these conditions, the Commonwealth's attorney or probation officer will go to court to seek to revoke your suspended sentence. Consequently, the officer or the state attorney will prepare and submit to the court a Sentencing Revocation Report (SRR) to help the judge decide on the right sentence for your violation.

The sentencing guidelines for violation of probation apply to you under specific conditions. They will apply if, as the offender, you have violated the terms of parole or post-release supervision administered by the court. However, you should not have broken a local, state, or federal law.

The guidelines will also apply if you violate probation, post-release supervision, or any other conditions set by the probation officer or the court as part of your probation conditions. In particular, the following violations apply:

  • If you get arrested, and you fail to report the arrest to a probation officer within three days
  • Failing to report a change in employment or that you have stopped working
  • Failing to report the conditions that the court or probation officer instructed you to report on
  • If you fail to allow a probation officer to visit your place of work or home
  • If you stop being cooperative, truthful or you fail to follow instructions given
  • Excess use of alcoholic beverages
  • If you possess, use, or distribute controlled substances
  • Using, owning or possessing a firearm(s)
  • Changing your place of residence or leaving the Virginia State without permission, and,
  • If you abscond from supervision

Conditions Under Which The Virginia Sentencing Guidelines for Violation of Probation Do Not Apply

The sentencing guidelines for violation of probation do not apply under the following circumstances:

  • If you are on probation for misdemeanor offenses only
  • If you are on probation for an offense that you committed before January 1, 1995, when the Virginia legislature enacted the sentencing guidelines
  • If you are a first offender on probation under Virginia code § 18.2-251 and you violate the conditions of the punishment
  • If you are a first offender violating conditions of probation when you get convicted under Virginia code § 18.2-258.1(H) for obtaining drugs or controlled substances by deceit, fraud or forgery, and,
  • If you violate any federal, state, or local law or ordinance

Modifications of The Virginia Sentencing Guidelines

The Virginia Criminal Sentencing Commission monitors the guidelines and regularly modifies them to make them more useful to judges as they make judgment decisions.

To make the changes, the VCSC gets information about the guidelines when Commission staff interact with state attorneys, circuit court judges, and other justice professionals in different forums. Also, the commission considers the reasons that judges give when they give sentences outside the guideline recommendations.

The commissioners deliberate on these concerns during their annual meeting and change the regulations when they see a need.

Given the scenario where the guidelines change from time to time, it's prudent to get a lawyer who is up-to-date with the latest sentencing guidelines to defend you. 

Find a Fairfax Criminal Lawyer

The sentencing phase of a felon trial is crucial. You should not assume that you no longer need legal representation because you already got convicted of the offense. Instead, you need a knowledgeable criminal lawyer to advise and guide you during the sentencing phase of the trial. A smart lawyer can make a big difference in how harsh your sentence will be. So if you get charged with a felony offense, or you're already convicted and awaiting sentencing, our skilled lawyers at Virginia Criminal Attorney will be more than happy to advocate for you. Call us at 703-718-5533 to schedule an appointment and speak with one of our lawyers.