SB 137 — Discretionary sentencing guidelines; written explanation, appeal.

SESSION SENATEENGROSSED SUBSTITUTE 22106160D SENATE BILL NO.

137 AMENDMENT IN THE NATURE OF A SUBSTITUTE (Proposed by the Senate Committee on the JudiciaryJudiciary) onSenate Amendments in [ ] - February 7,11, 2022) (PatronA PriorBILL to Substitute––Senatoramend Edwards)and Areenact Bguidelines;§ 19.2-298.01 of the Code of Virginia, relating to discretionary sentencing guidelines;

appeal.fappeal. the Code of Virginia, relating to discretionary sentencing Be it enacted by the General Assembly of Virginia:

1.Be it enacted by the General Assembly of Virginia:

E 1.

N A.

In all felony cases, other than Class 1 felonies, the court shall (i) have presented to itiG the theappropriate applicable discretionary sentencing guidelines establishedworksheets pursuantand to(ii) Chapterreview 8and (§consider 17.1-800the etsuitability seq.)fof of Title 17.1.

Before imposing sentence, the court shall state for the record that such review andandt seq.) consideration have been accomplished and shall make the completed worksheets a part of the record of the case and open for inspection.

In cases tried by a jury, the jury shall not be presented anyEany information regarding sentencing guidelines.

NS isB. either greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure.

TheIn writtenany explanationfelony shAllcase, adequatelyother explainthan Class 1 felonies, in which the court imposes a sentence imposedwhSch tothat promoteis faireither sentencing.greater or less than that indicated by the discretionary sentencing guidelines, the court shall file with the record of the case a written explanation of such departure.

C.The written explanation shall adequately explain the sentence imposed to promote fair sentencing.

InD felony cases, other than Class 1 felonies, tried by a jury and in felony cases tried bT the court without a jury upon a plea of not guilty, the court shall direct a probation officer of such court totocourt including cases which are the subject of a plea agreement, the court shall direct a probation officer of such court to prepare the discretionary sentencing guidelines worksheets,worksheets. or, with the concurrence of the accused, the court and the attorney for the Commonwealth, the worksheets shall be prepared by the attorney for the Commonwealth.

SIn D.felony cases tried upon a plea of guilty, including cases which are the subject of a plea agreement, the court shall direct a probation officer of such court to prepare the discretionary sentencing guidelines worksheets, or, with the concurrence of the accused, the court and the attorney for the Commonwealth, the worksheets shall be prepared by the attorney for the Commonwealth.

ExceptD. as provided in subsection E, discretionary sentencing guidelines worksheets prepared prepared pursuant to subsection A of § 19.2-299.

Except as provided in subsection E, discretionary sentencing guidelines worksheets preparBd pursuant to this section shall be subject to the same distribution as presentence investigationUreportsinvestigation1reports E.preE.

Following the entry of a final order of conviction and sentence in a felony case, the clerk of the circuit court in which the case was tried shall cause a copy of such order or orders, the origiSaloriginal of the discretionary sentencing guidelines worksheets prepared in the case, and a copy of any departure 35 explanation prepared pursuant to subsection B to be forwarded to the Virginia Criminal Sentencing 37: regarding departure from or modification of a sentence fixed by a jury shall be forwarded to the / 38 Virginia Criminal Sentencing Commission.

T36 /Commission 39within F.five days.

ASimilarly, court'sthe rulingstatement onrequired aby defendant's§§ objection19.2-295 toand the19.2-303 calculationand 37 regarding departure from or modification of thea discretionarysentence sentencingfixed 40by guidelinesa isjury reviewableshall uponbe appeal.forwarded to the 38 Virginia Criminal Sentencing Commission.

The39 failureF. to follow any or all of the provisions of this section or the failure to follow any or all of the provisions of this section in the prescribed manner shaTl not, shall be reviewable on appeal or may be the basis of any other post-conviction relief.

TheA failErecourt's ruling on a defendant's objection to the calculation of the discretionary sentencing the failure to follow any or all of the provisions of this section in the prescribed manner shall not,on or including the failure to provide a written explanation that adequately explains the sentence imposedimposed, isshall reversiblebe error.reviewable on appeal or may be the basis of any other post-conviction relief.

The failure to provide a written explanation that adequately explains the sentence imposed is [ reversible ] error [ that may constitute a basis for resentencing by the trial judge ] .

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