SB 296 — Sentencing proceeding by jury after conviction; relevant mitigating evidence.

SESSION INTRODUCEDENGROSSED 22102451D I SENATE BILL NO.

296 OfferedSenate JanuaryAmendments 12,in 2022[ N] - February 15, 2022 Prefiled January 11, 2022 T A BjuryBILL to amend and reenact § 19.2-295.1 of the Code of Virginia, relating to sentencing proceeding by jury after conviction;

Virginia,Patron relatingPrior to sentencingEngrossment––Senator proceeRingDeeds by –––––––––– Patrons––Deeds and Morrissey O –––––––––– D Referred to Committee on the Judiciary E –––––––––– UN Be it enacted by the General Assembly of Virginia:

C 1.

InG cases of trial by jury, upon a finding that the defendant is guilty of a felony or a Class 1 misdemeanor, or upon a finding in the trial de novo of an appealed misdemeanor conviction that the defendant is guilty of a Class 1 misdemeanor, a separate proceeding limited to the ascertainment of punishment shall be held as soon as practicable before the same jury when ascertainment of punishment by jury has been requested by the accused as provided in subsection A of § 19.2-295.19.2-295.1.

AtSentencing suchproceeding proceeding, the Commonwealth may present any victim impact testimony pursuant to § 19.2-295.3 and shall present the defendant's prior criminal history, including prior convictions and the punishments imposed, by certified, attested, or exemplified copies of the finaljury order,after includingconviction. adult convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories.

R In cases of trial by jury, upon a finding that the defendant is guilty of a felony or a Class 1 misdemeanor, or upon a finding in the trial de novo of an appealed misdemeanor conviction that the punishment shall be held as soon as practicable before the same jury when ascertainment of punishment by jury has been requested by the accused as provided in subsection A of § 19.2-295.

At such S proceeding, the Commonwealth may present any victim impact testimony pursuant to § 19.2-295.3 and shall present the defendant's prior criminal history, including prior convictions and the punishments imposed, by certified, attested, or exemplified copies of the final order, including adult convDctions and juvenile convictions and adjudications of delinquency.

Prior convictions shall include convictions and adjudications of delinquency under the laws of any state, the District of Columbia, the United States or its territories.

Such notice shall include (i) the date of each prior6 conviction, (ii) the name and jurisdiction of the court where each prior conviction was had, (iii) each offense of which he was convicted, and (iv) the punishment imposed.

Prior to commencement of thethei) each trial, the Commonwealth shall provide to the defendant photocopies of certified copies of the finalfSnal orders that it intends to introduce at sentencing.

After the Commonwealth has introduced in itsitsB case-in-chief of the sentencing phase such evidence of prior convictions or victim impact testi9ony, or both, or if no such evidence is introduced, the defendant may introduce relevant, admissible evidenceorevEdence related to punishment.

34 Relevant evidence that may be admissible may include the circumstances surrounding the offense, the :35 history and background of the defendant, and any other facts in mitigation of the offense.

35Facts historyin andor background of theserious defendant,or andviolent anycriminal otheractivity; facts in mitigation of the offense.

Facts(b) inwhether 36the mitigationoffense maywas include:committed while the defendant (1) 38 was under the influence of mental illness, (2) suffered from an intellectual disability or developmental 39 disability, or (3) was of subaverage intellectual functioning at the time of offense;

(a)(c) whetherthe age of the defendant hasat nothe significanttime historyof offense, including whether the offense was committed while the defendant was of prioran criminalage activity,where 37the ordevelopment and maturation of seriousthe ordefendant's violentprefrontal criminalcortex activity;was complete;

(b) whether the offense was committed while the defendant (1) 38 was under the influence of mental illness, (2) suffered from an intellectual disability or developmental defendant at the time of offense, including whether the offense was committed while the defendant wasthe of an age where the development and maturation of the defendant's prefrontal cortex was complete;

(f) whether the victim was a participant in the defendant's conduct or consentedaccessory toliability, or the act;absence of a conviction and sentence, whether through declination, dismissal, acquittal, or otherwise;

(g)(h) anyevidence convictionof and sentence imposed against a codefendant or other party with accessory liability, or the absencedefendant's ofpositive aadjustment convictionto andincarceration, sentence,including whetheron through declination, dismissal, a pretrial basis, or evidence of his good behavior in the community pending trial;

(i) the impact ofdingof on incarceration on the defendant and the defendant's family, including the loss of employment, child custody, child care, medical care, housing, and emotional welfare;

If the sentence imposed pursuant to this section is subsequently set aside or found invalid solely due tounless anthe errordefendant, in the sentencingattorney proceeding,for the courtCommonwealth shalland impanelthe acourt differentagree, juryin tothe ascertainmanner punishment,provided inment, § 19.2-257, that the court shall fix punishment.nwealthpunishment. and the court agree, in the manner provided in

SB296E 2 of 2 [ Any relevant evidence and facts in mitigation that may be considered by a jury when ascertainment of punishment by jury has been requested by the accused also may be considered by the court when the court fixes punishment.