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No right to withdraw jury sentencing demand

Where a criminal defendant demands jury sentencing, there is no statutory right to revoke the request.

The exception to this rule is the situation in which a defendant makes an early demand for jury sentencing and then decides to revoke. Revocation is permitted if it occurs more than 30 days before trial, see Code § 19.2-295.

No ambiguity

“The Court finds no ambiguity in Virginia Code § 19.2-295(A). One cannot read it in two ways at once. It is not open to multiple interpretations and is clear in its instruction. The statute merely requires affirmative notice to exercise a statutory right and delineates the deadline to submit the request. …

“Moreover, the result of requiring notice and the deadline is neither illogical nor anomalous. Because the statute in question is unambiguous, the Court is ‘not free to add language, nor ignore language’ contained within it. …

“Thus, the Court is guided by canons of interpretation to find that Virginia Code § 19.2-295(A) does not permit the accused to reserve the right to a judge held sentencing trial after submitting a plea for jury sentencing.

“Time limits on a defendant’s choice between jury sentencing and judge sentencing are nothing new. Under the former law, when jury sentencing was the default rule rather than judge sentencing, a defendant who demanded a trial by jury effectively waived his chance to avoid jury sentencing after a guilty verdict but before the start of the sentencing phase.”

An exception

“There is one logical exception to this bright-line rule. Where a criminal defendant makes his jury request early – more than thirty days prior to trial – he may revoke it more than thirty days before trial. Trial dates can be fluid.

“When a date is changed after a jury sentencing request, the defendant’s timeline can effectively change from thirty days before trial to a few months before trial. This conflicts with a plain reading of the statute.

“Under the law, the parties and the trial court simply need to know whether there will be a possible jury sentencing phase or not thirty days prior to the actual trial date, not before a previously scheduled trial date.”

A choice

“The Court holds a defendant may not revoke a previously requested jury sentencing under Virginia Code § 19.2-295 unless the revocation is more than thirty days before trial.

“In this case the Court will treat the Defendant’s request as the exercise of his statutory choice to jury sentencing and will hold him to his selection, despite his purported qualification of a non-existent right to revoke.

“Nevertheless, in this case of first impression, if the Defendant withdraws his request prior to arraignment and entry of a plea, the Court will treat the request as revoked.”

Commonwealth v. Green, Case No. FE-2019-802, Jury 1, 2022, Fairfax County Circuit Court (Oblon). Eric Clingan, counsel for the commonwealth. Melissa Hasanbelliu, Kathryn C. Donoghue, counsel for defendant. VLW 022-8-037, 6pp.

VLW 022-8-037

Virginia Lawyers Weekly