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Plea Agreements in Virginia Circuit Courts - Sentencing Cap

One form of a plea agreement provides for the prosecution and defense agreeing on a sentencing cap. The judge maintains the ability to reject the terms of the plea agreement. If the judge accepts the plea agreement, the court is limited to the agreed upon sentencing cap. When the agreement provides a sentencing cap, the defendant needs to be prepared for the judge to impose a sentence with confinement at the cap. However, counsel for the defendant retains the ability to argue for a sentence below the cap. For example, I recently represented a client who was charged with multiple child sex offenses. He fully confessed to the police, which put him in a position that he was effectively boxed in by his own statement. The plea agreement called for guilty pleas to forcible sodomy, two counts of aggravated sexual battery and custodial indecent liberties – he was facing a maximum sentence of life, plus 45 years. The prosecution pretty much held all the cards in the case – my client’s confession put him at risk of a very significant period of confinement, in addition to a life time sex-offender registration requirement. The best plea agreement I could negotiate called for a 13 year confinement cap. The facts we were dealing with were horrendous and the victim would be testifying at the sentencing hearing. I made it clear to my client, and his family, that while the plea agreement offered him significant confinement protection, they needed to be fully prepared to have the judge impose significant confinement to include 13 years to serve. I reminded him that there is no parole in Virginia. Once the plea agreement was signed, we focused our case on sentencing – preparing a sentencing package to emphasize to the court that but-for the subject offenses, he has lived a life of exemplary conduct, to include a lengthy period of military service. As part of the sentencing package, I had my client write a letter to the court. The focus of that letter was to accept full responsibility for his conduct as well as to demonstrate empathy for the victim, and what he has put her through. As expected, during the sentencing hearing, the victim testified and described what her life had been like over the approximate 11 years that she said she endured sexual abuse. On cross examination, I asked her two questions - had she taken advantage of counseling and had the prosecution or police showed her the apology letter the police had my client write when he was arrested. I knew she had not attended any counseling and was quite confident she was never shown his apology letter. She tearfully answered in the negative as to both questions. In her sentencing argument, the prosecutor argued that my client be sentenced to serve the 13 years he agreed to as his sentencing cap. I argued that a significantly lower sentence was appropriate. As stated, my client and his family were fully prepared for imposition of a sentence to include 13 years of confinement. When the judge asked my client if he had anything to say before imposition of sentence, I had my client again apologize to the victim, his wife and son, his family and the court. The sentence of 7 years, 5 months was the end result – an extremely good result in an extremely difficult case.

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