In felony cases, the sentencing hearing occurs after the judge determines the person’s guilt or innocence. This period of time is when sentencing occurs in Virginia felony cases, and it allows a few things to happen. First and foremost, it allows for a pre-sentencing investigation to be done by a government organization that investigates things such as criminal history; job history; and various family and academic influences; as well as substance or drug abuse history; and other factors they think the court should know before imposing a sentence.
The period of time between a person’s guilt or innocence being determined and the sentencing hearing allows the Virginia defense attorney to develop any evidence they need to present to the judge to structure an effective argument against the sentence recommendation the commonwealth attorney presented to the judge.
In some felony cases where there is a criminal history, the attorney must look at the sentencing guidelines, a comprehensive set of guidelines developed by the Virginia state government by an organization called the Sentencing Commission. The Commission examines various factors about the conviction and the elements of the offense to determine suggested guidelines, which will suggest a sentencing range that the court will look at when determining the person’s sentence.
An experienced criminal defense attorney looks at the sentencing range determined by the sentencing guidelines and makes an argument to the judge as to why the judge should give a lenient sentence, or a sentence completely outside of the guidelines and below the guidelines based on mitigating factors. Those mitigating factors might include a person’s family, their education, their experience, and perhaps factors that did not come out during the course of their trial, and various things like that that could convince the judge to go below the sentencing guideline range.
Another important consideration about the criminal justice system in Virginia is that when a person is found guilty or innocent by a jury in a jury trial, whether on a misdemeanor appeal or for a felony case, their sentence is also determined by that same jury. They are not bound by the sentencing guidelines that a judge would be looking at, in considering the factors of the case.
From that perspective, a jury trial is often a very risky proposition for a defendant because they can give someone a higher sentence than a judge would under similar circumstance. This is why it’s very important, especially in cases heard in front of juries, to have a criminal defense attorney who is experienced in arguing sentencing aspects to juries and that knows how to present a comprehensive sentencing package.