Last updated on May 7th, 2019
Virginia state law lists a maximum penalty for most criminal offenses. A smaller number of offenses, including many drug-related charges, also have mandatory minimum sentences.
However, outside of these hard limits, Virginia judges have historically possessed a great deal of leeway in the sentencing process.
For that reason, Virginia’s criminal justice system has produced both surprisingly lenient and shockingly harsh sentences, especially in regards to felony cases.
In 1994, Virginia legislators created the Virginia Criminal Sentencing Commission in order to create consistency in sentencing across the state. Since then, the VCSC has produced extensive felony sentencing guidelines, which are available online.
Virginia judges now follow these guidelines when sentencing most felony cases.
Many times, a felony case will come down to negotiating a plea agreement for reduced charges. Felony sentencing guidelines give defendants and their attorneys a reliable starting point in this process. For this reason, anyone charged with a felony in Virginia should closely study the guidelines associated with their charges.
Even if you plead innocent, knowing the consequences of guilty verdict will help you understand the stakes in your specific case.
Understanding Sentencing Guidelines
Virginia’s felony sentencing guidelines work on a point system. Before your trial, a probation officer will assign you points based on the VCSC’s guidelines. Higher point totals almost always receive more severe sentences than lower point totals.
Each charge has a slightly different list of situations which warrant points. However, almost all take the following circumstances into account.
The Severity of the Primary Offense
Each sentencing guideline worksheet includes a list of possible charges. Your “primary offense” is the charge against you which is worth the most points.
For example, let’s look at the situation of a person charged with one count of grand larceny auto and two counts of grand larceny of bank notes.
As the larceny guidelines worksheet indicates, one count of grand larceny auto is a five-point offense, while two counts of grand larceny of bank notes is a four-point offense. Thus, grand larceny auto is the primary offense, and the probation officer should assign five points for the primary offense category.
The sentencing guidelines add points for additional offenses by totaling their maximum penalties. If the court is charging you with several counts of a single offense, each count will score points separately.
Let’s return to our example of a person charged with one count of grand larceny auto and two counts of grand larceny of bank notes. The two counts of grand larceny of bank notes are additional offenses. The maximum penalty for each of those offenses is 20 years. Thus, the total maximum sentence is 40 years, which is worth four points on the sheet.
The recommended sentencing worksheet also takes into account your five most serious previous offenses. These are scored by adding the maximum penalty for each of those offenses together.
Importantly, the actual sentence you received doesn’t matter for this step. The only thing that matters is the maximum possible penalty as set in the Virginia Code.
Let’s say that the person in our example had previously been found guilty of two counts of unarmed breaking and entering. The maximum sentence for unarmed breaking and entering is five years. Adding both counts together, we arrive at a maximum penalty of ten years, which is worth one point on the guidelines sheet.
Note that previous offenses of the same type as the primary offense will result in extra points being assigned. Most often, serial offenders will end up with higher point totals (and harsher sentences) than one might otherwise expect.
Prior Criminal History, Incarceration, or Commitment
The sentencing guidelines worksheet allots extra points to individuals with previous criminal or institutional histories. This includes individuals with juvenile criminal histories, as well as those who have only been convicted of misdemeanors. However, it does not take most traffic-related misdemeanors into account.
Let’s assume that the individual from our example has been to jail before for a completely unrelated crime. On the grand larceny worksheet, previous incarceration or commitment is worth a flat five points. The probation officer will thus add exactly five points to the total, regardless of how many times the individual has been in jail.
Frequently Asked Questions
Do All Judges Follow the Sentencing Guidelines?
The VCSC guidelines are not mandatory for any judge in Virginia. However, a judge who imposes a sentence departing from the guidelines must provide a written explanation of his or her reasoning. Because of this, the overwhelming majority of felony sentences in Virginia fall into the ranges found in the guidelines.
Departures generally only occur in truly exceptional or one-of-a-kind cases that the guidelines are inadequate to deal with.
There is one important caveat. The felony sentencing guidelines only apply to the specific charges that the VCSC wrote them for. For this reason, if you successfully have your charges reduced, you’ll most likely face a lower sentence due to the different set of guidelines.
This is why it is important to choose an experienced criminal defense lawyer who knows the ins and outs of the criminal process to represent your case. Knocking off or lowering even a single charge can significantly impact the results of a case.
Do Sentencing Guidelines affect Jury Trials?
If you have a trial by jury in Virginia, that jury will determine your sentence. The jury is not bound by the same sentencing guidelines Virginia judges must follow. Instead, Virginia juries only need to respect the VA Code’s maximum and minimum sentencing statutes.
For this reason, in most cases Virginia lawyers recommend against requesting a jury trial. While a jury can come back with a more lenient sentence than the VCSC recommends, they may also choose the absolute maximum penalty. Lawyers usually recommend against jury trials because juries are unpredictable. They don’t have to follow the precedents and guidelines usually seen in criminal cases.
Are there Sentencing Guidelines for Misdemeanors?
No, the VCSC has not produced sentencing guidelines for misdemeanor offenses. Instead, individuals charged with misdemeanors and their lawyers must rely on VA Code § 18.2-11, which states maximum sentences, as well as local statutes.
The VCSC sentencing guideline worksheets provide a degree of consistency and conformity to criminal sentences in Virginia. However, keep in mind that your sentence can vary significantly based on the actual charges against you.
When dealing with felony charges in Virginia, it’s almost always in your best interest to hire an experienced lawyer who can argue for lesser charges.