By Alan Cooper
Published: January 14, 2011
The Supreme Court of Virginia appeared to clear the way Thursday for judges to defer judgment in criminal cases and enter a finding of not guilty even when they find the law and facts sufficient for a finding of guilt.
The “inherent authority” issue has been percolating in Virginia for several years, with trial courts reaching varying results. In 2000, some judges up for reelection were queried about their views on the subject. In 2008, the legislature deferred hearing a proposal to explicitly grant courts such authority, because Moreau and another case were pending.
When the high court decided Moreau in 2008, Justice Lawrence L. Koontz Jr. said, “Surely, in time a case will come before this court with the appropriate record to permit us to properly address this issue.” The day may have finally come, during this, Koontz’s last week as an active justice on the court.
The attorney for Rafael Hernadez asked Alexandria Circuit Judge Lisa B. Kemler to defer a finding of guilt on a charge of assaulting a police officer and to dismiss the charge if Hernandez met certain conditions during the deferral period.
The prosecution objected and Kemler ruled that she did not have the authority to take such action. She found Hernandez guilty and sentenced him to 11 months in jail, with five months suspended. Six months is the mandatory minimum sentence for the offense.
The Virginia Court of Appeals rejected Hernandez’ argument and held that trial judges may not dismiss criminal charges on any grounds other than their legal or factual merits.
The court pointed out that the General Assembly specifically allows deferred judgment in some instances, most notably for first-time drug offenders or in domestic assaults. Those provisions reinforce the argument that the punishment a court may impose is “circumscribed and delineated, by the legislature,” the court said.
Russell agreed the question of the penalty to be imposed for a conviction is up to the legislature and courts have no authority to depart from the range of punishment the legislature sets.
But the Court of Appeals erred “in holding that the mere statement by a judge that the evidence was sufficient to support a conviction amounts to a judgment of conviction.”
Until a court enters an order finding guilt, it has the inherent authority “to take the matter under advisement or to continue a case for disposition at a later date,” Russell wrote in sending the case back to the trial court.
Marvin D. Miller, the Alexandria attorney who wrote an amicus brief for the Virginia Association of Criminal Defense Lawyers, noted that trial judges rarely have deferred judgment in the absence of statutory authority to do so.
But “you can’t tell a judge how to decide,” and allowing judges to defer judgment and acquit defendants in appropriate cases “is an exercise in justice and not just a formulaic ritual.”
Efforts to get a response to the ruling by press time from the attorney general’s office or from the Virginia Association of Commonwealth’s Attorneys were unsuccessful.
Immigration cases reversed
In two other cases closely watched by the criminal defense and immigration bars, the court ruled that immigrants can’t use common law writs of coram vobis and audita querela to avoid deportation.
Trial judges in Alexandria and Norfolk had granted the writs in cases in which an immigrant received a suspended jail sentence of 12 months, one for petit larceny and the other for assault and battery.
The offenses are “aggravated felonies” under immigration law even though they are Class 1 misdemeanors under state law, and immigration authorities began deportation proceedings for the two defendants.
By then, it was too late for the defendants to seek habeas corpus relief, so they went to the circuit courts asking that their suspended sentences be reduced to less than 12 months, a change that would remove the cases from the category of aggravated felonies for immigration purposes.
They contended the sentences were based on an error of fact in that neither their defense attorneys nor the trial judge was aware of the deportation consequences of their sentences.
The Supreme Court ruled, however, that Rule1:1’s removal of jurisdiction from the trial court after 21 days prevented the lower courts from modifying the sentences.
The error of fact was not the type of mistake contemplated by the writ of coram vobis, and the common law writ of audita querela does not apply to criminal cases, Justice Donald W. Lemons wrote for a unanimous court in Commonwealth v. Morris, VLW 011-6-010.