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Motion to Strike Sentence Recommendation Denied

A Fairfax County circuit judge denies a motion to strike a jail sentence recommendation in a sex offender’s presentence report despite the fact that sentencing guidelines recommend probation.

The defendant presents a challenge to the generalized authority of probation officers to make sentencing recommendations.

The Virginia Sentencing Guidelines recommend the Defendant be sentenced to probation without incarceration. The judge has made a generalized request to Virginia Probation and Parole to include certain information in its probation reports, including but not limited to programmatic and other sentencing recommendations. In response, the probation officer assigned to the case included as part of his recommendations the Defendant be sentenced to a short period of incarceration.

Section 19.2-299 is no longer limited to the gathering of “extenuating circumstances,” but instead includes the language that the probation officer is to report “all other relevant facts to fully advise the court so the court may determine the appropriate sentence to be imposed.” One can imply from such amending choice by the General Assembly that the restriction on sentencing recommendations suggested by Defendant, to the extent it ever existed in the past, is no longer applicable. There has been a long accepted practice in Virginia Circuit Courts of considering the recommendations of probation officers in the fashioning of an appropriate sentence. The recommendations of probation officers integrating scientifically validated risk assessment sentencing tools serve to aid the Court in fashioning a sentence that enhances justice and is not merely based on the judge’s gut feeling of what may be appropriate.

It is unlikely the General Assembly intended with the enactment of §19.2-299 that probation officers be permitted to make sentencing recommendations routed through prosecutors by virtue of being part of the Executive Branch, while not being able to make those same representations directly to the Court, subject to cross-examination by the Defendant.

Motion to strike language in presentence investigation report is denied.

Commonwealth v. Villagran (Bernhard) No. FE-2017-573, Sept. 1, 2017; Fairfax County Cir. Ct. (VLW 017-8-082).

VLW 017-8-082