Virginia Lawyers Weekly VA Lawyers Weekly
Where defendant was indicted on four counts of raping a child less than 13 years old, and the commonwealth later amended the first two counts to aggravated sexual battery, the court rejects a plea agreement that allowed defendant to plea to the amended counts, limited the court’s sentence to three years of active incarceration and 37 years of suspended incarceration, and would nolle prosse the two rape charges if the court accepted the agreement.
Under the Virginia Supreme Court rules, the court will not hear further matters in this case.
Benefits to defendant
“[T]he plea agreement provided the Defendant three distinct benefits:
“(1) Counts III and IV, charging the Defendant with rape of a child less than 13 years of age, were to be nolle prossed;
“(2) The remaining two counts [Counts I and II] were amended from rape of a child less than 13 years of age (maximum sentence: life) to aggravated sexual battery (maximum sentence: 20 years); and
“(3) even though the two counts of conviction carried a maximum combined potential term of incarceration of 40 years, the court was required to impose a sentence of active incarceration of just three years.
“In addition, the Defendant was permitted to enter a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), which meant the Defendant was not required to admit or acknowledge his guilt. …
“[T]he Court determined that the Defendant’s Alford pleas of guilty were made freely, intelligently, and voluntarily and accepted the Defendant’s guilty pleas. The Court expressly withheld a finding of guilt on Counts I and II and advised the parties that it would determine at the time of sentencing whether to accept or reject the plea agreement.”
Discretion curtailed
“A plea agreement that requires the Court to impose a specific sentence constitutes an ‘attempt to completely curtail’ the Court’s ‘discretion to sentence within the applicable range[.]’ … A sentencing court may ‘reject the results of a plea negotiation if it concludes that the resulting agreement is not in the best interest of justice.’ …
“Absent such a plea agreement, the Defendant’s pleas to Counts I and II would have given the Court discretion to sentence the Defendant to as much as 40 years of active incarceration. The plea agreement presented to the Court, however, limited the Court to imposing three years of active incarceration.
“Given the facts before this Court – specifically, the Defendant’s repeated acts of raping this child beginning when she was in the Fifth Grade and continuing into the Seventh Grade – a plea agreement that requires the Court to impose a sentence of just three years of active incarceration does not remotely reflect the gravity of the Defendant’s misconduct.”
Prosecution’s rationale
“[T]he Commonwealth expressed what amounts to four rationales for entering this agreement, none of which the Court finds persuasive.”
First, the commonwealth noted there have been problems discovering and providing the defense with Brady material. The court notes a defense motion for production of Brady material and an evidentiary hearing resulted in additional materials being disclosed.
The court stated the defense could seek a continuance based on the late production of materials. The defense has not filed such motion.
Second, the commonwealth expressed concern about how the jury would view a detective’s testimony, given “that the detective had not been adequately responsive to requests from the Commonwealth’s Attorney for documents and other material that needed to be produced to the defense. However, the requested material – including recorded interviews of the victim – were ultimately produced to the defense.”
Third, the commonwealth expressed concern that other may still have undisclosed Brady material. “If that is the case, however, there are remedies other than entering into a plea agreement that does not reflect the gravity of the Defendant’s misconduct. …
“Finally, the Commonwealth expressed what it called one of its ‘biggest concerns.’ This is that the jury might have a reasonable doubt as to the Defendant’s guilt because of the quality of the detective’s investigation and the tardy disclosure of discoverable material.
“The Court might understand this argument if the Commonwealth was suggesting that these matters would cause the jury to not believe the victim, but that is not what the Commonwealth was asserting. To the contrary, the Commonwealth stated that it expects that the jury would believe the victim[.]”
Presentence report
“The Presentence Investigation Report and Victim Impact Statements reinforces the Court’s judgment that the plea agreement should be rejected.”
Defendant has not accepted responsibility for his actions, shows no remorse and, in fact, “blames the child victim for the commission of these offenses.
The high end of the sentencing guidelines is double the amount of active incarceration than what the court could impose if it accepts the plea agreement.
Finally, “the victim impact statements submitted by the child victim as well as the child’s mother and grandmother make absolutely clear the devastating impact that the defendant’s crimes had on this child.”
The court rejects the plea agreement. The court cannot hear further matters in this case.
Commonwealth v. Amparado, Case No. FE-2020-276, Sept. 27, 2021, Fairfax Circuit Court (Bellows). Nathan Frier for the commonwealth, Brain Kennedy, Jessica Newton for defendant. VLW 021-8-116, 13 pp.
