Supreme Court of Virginia backs judge on failure-to-accept-responsibility factor

The Court of Appeals of Virginia misinterpreted a circuit court’s statements about a defendant’s failure to accept responsibility for his probation violations as punishment for the defendant going to trial, the Supreme Court of Virginia has held.

The defendant pled guilty to some probation violations but wanted trial for others. The sentencing court expressly considered the defendant’s failure to take responsibility when departing from sentencing guidelines, only to be reversed on appeal.

Writing for the court, Justice D. Arthur Kelsey found no error in the circuit court’s sentencing or statements because acceptance of responsibility “serves as a mitigating factor to potentially reduce whatever sentence would be applied if there had been no such contrition.”

“It follows that the inverse is also true: The failure to accept responsibility or to show concomitant remorse means that as far as either of these factors go, no mitigation of the otherwise appropriate sentence would be considered,” the justice wrote.

The opinion is Commonwealth v. Jackson (VLW 025-6-027).

Attorneys representing the parties could not be reached for comment.

Revocation hearing

Having pled guilty to larceny and driving without a license, David Michael Jackson was incarcerated and given five years of probation. Jackson failed to report for urine screenings and a major violation report was issued.

Further failures to comply culminated in Jackson’s arrest for multiple new charges and the probation violations. Jackson pled guilty only to the non-technical probation violations. Jackson’s mother testified that he was unable to comply due injuries from a motorcycle accident.

The court found Jackson guilty of all probation violations. During sentencing, Jackson’s counsel objected to the court’s statements that it considered Jackson’s failure to accept responsibility for his actions as a factor when departing from the recommended guidelines.

The Court of Appeals of Virginia reversed, finding that the circuit court explicitly linked Jackson’s not guilty pleas to his sentence when considering his failure to take responsibility. The government appealed.

Generous presumption

The undivided Supreme Court held in Lawlor v. Commonwealth that a court cannot enhance a convicted criminal’s sentence based upon the convict’s prior claim of innocence implicit in his not guilty plea.

“In this context, no punitive thumb on the sentencing scale can tip it in favor of enhanced punishment for a defendant who has done nothing more than ‘what the law plainly allows him to do,’” Kelsey said, looking to the U.S. Supreme Court’s opinion in Bordenkircher v. Hayes.

Kelsey first asked whether that doctrine applied to a probation revocation proceeding.

“A probationary suspension of incarceration is a judicial ‘act of grace’ with the ‘remedial purpose’ of ‘affording courts the latitude to rehabilitate the offenders before them,’” he noted.

Here, the parties and the appeals court relied exclusively on opinions addressing challenges to sentences imposed during criminal trials, while implicitly assuming that the procedural protections were the same for both.

“If that is the hypothesis, there is much to say opposing it,” Kelsey wrote. “With limited exceptions, a revocation proceeding is not subject to the full panoply of rights that accompany a criminal trial[.]”

The court assumed arguendo that failure-to-accept-responsibility factor applied no differently to a revocation hearing than to a plenary criminal trial, calling that a “rather generous assumption.”

Full context

According to Lawlor, it was clear error for a circuit court to consider a defendant’s remorseless defense strategy of claiming innocence during the liability phase of trial when accepting a jury’s recommendation that the defendant be executed.

“While it is proper for a court to consider a defendant’s ‘present tense refusal to accept responsibility, or show remorse,’ it may not be linked to his ‘prior claim of innocence or not guilty plea or exercise of his right to remain silent.,’” the Lawlor court held.

To reach the holding, the Lawlor court adopted the reasoning of two Maryland cases: Jennings v. State and Saenz v. State.

“These opinions restate well the indisputable premise that ‘after the defendant has been convicted, the judge must proceed upon the basis that the defendant is guilty,’” Kelsey explained.

The presumption in favor of the correctness of lower court rulings forbid later fixation on isolated statements of the trial judge taken out of their full context and using those statements as a predicate to find the misapplication of law.

“At the highest level of generality, the idea that Jackson truly accepted responsibility for his criminality — ‘the first step in rehabilitation,’ — is questionable at best,” Kelsey opined, noting Jackson’s convictions for 20 felonies and seven misdemeanors.

“Whether he pleaded guilty or not guilty to the most recent set of technical probation violations seems trivial in the broader context of his 37-year criminal record,” the justice added, noting that the court could have imposed all of Jackson’s remaining time based on his new convictions.

With that perspective, Kelsey said that focusing on the circuit court’s literal statements did not strengthen Jackson’s argument.

‘Logical corollary’

Kelsey found that the first challenged statement — “the opposite of acceptance of responsibility can be considered by the Court in imposing sentence” — was “a logical corollary of the view that acceptance of responsibility can be considered.”

“Remorseful acceptance of responsibility serves as a mitigating factor to potentially reduce whatever sentence would be applied if there had been no such contrition,” the justice wrote. “It follows that the inverse is also true[.]”

Thus, Kelsey held that the “failure to accept responsibility or to show concomitant remorse means that as far as either of these factors go, no mitigation of the otherwise appropriate sentence would be considered.”

“But that is not the same thing as saying that a presumptively proper sentence should be enhanced as a means of punishing a criminal defendant for pleading not guilty to the charges,” the justice advised.

Whereas the Virginia Sentencing and Probation Violation Guidelines encourage courts to reward contrite criminals within their wide sentencing discretion, Kelsey said it was both logical and prudent for the circuit court to consider Jackson’s failure to accept responsibility.

“If Jackson showed no signs of accepting responsibility, it would leave his unmitigated punishment where it presumptively was from the start,” the justice noted.

Therefore, the circuit court’s first statement did not explicitly or implicitly assert that the sentence would be enhanced as punishment for Jackson’s plea of not guilty.

“Read in this context, this statement can be fairly understood as simply withholding any mitigating impact on a baseline sentence,” Kelsey concluded.

Present tense observation

The circuit court also did not err by considering the other probation conditions that Jackson recently violated in addition to his failure to take responsibility, which Jackson interpreted as a reason for imposing an enhanced sentence, rather than for declining a reduction.

As noted in Lawlor, a “trial court’s present tense observation of a defendant’s lack of remorse, so long as it is not explicitly linked to a defendant’s prior claim of innocence or not guilty plea or exercise of his right to remain silent, is an appropriate factor to consider at sentencing.”

“If this explicit-reference line is not crossed by a sentencing court, it is ‘perfectly acceptable’ to recognize that ‘lack of remorse is an appropriate sentencing consideration inasmuch as acceptance of responsibility is the first step in rehabilitation,’” Kelsey pointed out.

Among the factors to determine a defendant’s potential for rehabilitation is their manifestation of social conscience and responsibility.

“The circuit court’s statement during the sentencing phase of this case — observing that ‘responsibility was not taken’ by Jackson for his actions and inactions ‘in this most recent attempt at probation’ — does not include any explicit linkage to Jackson’s not-guilty plea or his right to remain silent,” the justice wrote.

Rather, that statement was made in response to Jackson’s arguments during sentencing and the evidence offered to put the blame on the probation officer for Jackson’s multiple no-shows, all of which the sentencing court was free to discount.

Even if Jackson’s excuses were true, Kelsey said he could have maintained contact with his probation officer.

“Instead of doing that, he spent his alleged period of total disability committing new crimes, including felony hit and run, misdemeanor construction fraud, and misdemeanor reckless driving,” the justice wrote.

Those facts undermined Jackson’s claim that he accepted responsibility for his actions, leading the circuit court to deem him a poor candidate for rehabilitation.

“The court’s finding that ‘responsibility was not taken’ by Jackson for his actions and inactions ‘in this most recent attempt at probation,’ was not an explicit reference to Jackson’s not-guilty pleas,” Kelsey said.

“Instead, it appears to have been a ‘present tense’ acknowledgement that Jackson was either unwilling or unable to satisfy the threshold predicate for successful rehabilitation,” the justice concluded. “The court cannot be faulted for considering this factor.”