[Posted November 15, 2011] On the most important Virginia criminal-law issue of our times, battle is joined yet again; today a panel of the Court of Appeals hands down the latest in a series of opinions discussing what options are available to a criminal defendant whose guilt has been established but who seeks to avoid the legal consequences of a conviction. This one’s important enough to deserve a full essay, which I’ll let you enjoy while you wonder who the new guy with the beard is, to your left.

Criminal law

As criminal-law practitioners know, it all started with Moreau v. Fuller. The long-standing practice of trial judges to announce something like, “I find the evidence sufficient to establish your guilt, but I will defer a finding to allow you to be a good little boy for a period of . . .” has irritated prosecutors for years. After all, when the prosecution does its job, and the judge even acknowledges as much, the result ought to be a conviction, right?

What I will euphemistically call extra-legal considerations often lead judges to defer findings where the practical effect of a conviction would be, in the judges’ views, unduly harsh for a particular defendant. This is the judicial equivalent of jury nullification, where a jury knows the prosecution has proved that the defendant committed the crime, but a very harsh sentencing provision leads the jury to shake the defendant loose.

In Moreau, a district-level judge deferred a finding of a defendant whose guilt was, shall we say, not seriously in issue. The prosecution decided to do something about it, so it got a circuit-court judge to issue a writ of mandamus, directing the lower-court judge to rule, already (preferably with a conviction, from the prosecution’s standpoint; but one way or the other). The district judge appealed, and in a ruling that I found to be about as unpredictable as the time of tomorrow’s sunrise, the Supreme Court reversed, holding that mandamus was not an appropriate remedy to compel a discretionary act. You’ll note that the court didn’t address the merits of the question of a judge’s right to defer findings.

Early this year, the justices confronted the issue head-on – sort of. Reversing a judgment of the Court of Appeals in a very short opinion, the court held in Hernandez v. Commonwealth that trial judges have the inherent authority to defer dispositions where no finding of guilt has been entered. This perplexed prosecutors and probably enraged certain members of the General Assembly, who perceived – as the Court of Appeals had previously ruled – that no such right existed. After all, the legislature has specified several specific instances in which judges do have the right to take findings under advisement; if that right generally existed, of what use were the specific listings in the statutes?

As controversial as it was, Hernandez left unanswered the question of whether a trial judge could determine the issue of guilt, and then change her mind upon receipt of a presentence report, and dismiss the charges, perhaps on specified good-boy terms. In late June, a panel of the Court of Appeals answered that question in the negative. Judge Kelsey, writing for Judges Petty and Beales, held in Taylor v. Commonwealth that the Hernandez decision foreclosed revisiting the question of guilt or innocence once a judge rendered (i.e., announced from the bench) a finding that the defendant was guilty; at that stage, the court’s only available option was to fix a sentence within the range specified by the legislature. Any other approach, the Taylor court reasoned, would violate the separation of powers, which gives the governor alone the power to grant pardons. When I analyzed Taylor over the summer, I described it as “a clear shot across the Hernandez bow.”

And now we come to Epps v. Commonwealth, decided today by a panel comprising Judges Petty and Alston and Senior Judge Coleman. There wasn’t much doubt as to Epps’s guilt of possession of cocaine; he even helpfully pleaded guilty, to remove all question. But he asked the trial court to vacate the finding of conviction and shake him loose, presumptively to avoid the negative consequences of having a conviction on your record (today’s opinion provides a list of some of those consequences in a footnote). The judge opined that he didn’t have the authority to do that, since he’d already found the defendant guilty of the crime; the only thing he could do at sentencing was to impose a sentence.

Unlike Taylor, Epps found a statute to hang his hat on – it’s the one that allows judges to suspend imposition of sentence. Today, the CAV rules that this statute may save a defendant from being punished for a crime, but it doesn’t save him, retroactively, from being convicted of a crime. If you take a look at the statute, you’ll have to agree; nowhere does it explicitly grant unto a judge the power to “undo” a finding of guilt. I cannot find any analytical fault with the panel’s conclusion that Epps’s route leads to a dead end.

We now have four active judges and one senior judge on the CAV on record as holding that even the Hernandez doctrine doesn’t give a judge the authority to reconsider a finding of guilt once that decision has been made on the record. If you were to poll the remaining judges, you’d probably find that most of them subscribe to the same view. Indeed, they find their support in the very language of Hernandez: “[O]nce a court has entered a judgment of conviction of a crime, the question of the penalty to be imposed is entirely within the province of the legislature, and the court has no inherent authority to depart from the range of punishment legislatively prescribed.” That seems to indicate that once the judge says, “You’re guilty,” the only thing she can do thereafter is pick a sentence within the appropriate range.

And yet. To my recollection, I have never seen an analysis of the history of the English common law to determine whether pre-Jamestown English courts had the inherent authority to spring the “guilty but” defendant. That’s the analysis that was assumed but, unsatisfyingly, not spelled out in Hernandez. And I’ve never yet read any opinion that analyzes what I see as the Achilles’ heel of the CAV’s analytical foundation: Rule 1:1. That rule, which by its terms applies to all proceedings in all courts, states that a court has the authority to modify or vacate final orders for 21 days past final judgment.

As every appellate lawyer knows well, all orders entered by the court before final judgment are interlocutory (we’ll omit from this discussion the entry of an order of partial final judgment under Rule 5:8A, which won’t apply to criminal prosecutions). And no one seriously contests the authority of a judge to revisit an interlocutory order at any time, again until the 22nd dawn after final judgment. But when a trial judge enters an order that provides, “The defendant is found guilty; sentencing will be conducted in 30 days,” that’s an interlocutory order.

The holdings of the Court of Appeals in Taylor and now in Epps depend upon a principle, unstated in the rule, that Rule 1:1 does not apply to findings of guilt in criminal cases. If it does apply, then in any criminal case, the trial court would always have the authority to vacate any interlocutory order, specifically including one that adjudges the defendant guilty of a crime, and to enter a different finding, as long as the court has not yet lost authority over the case.

There’s more. Let’s suppose that a defendant is convicted and an order to that effect is entered, but during the preparation of the presentence report, positive evidence of the defendant’s innocence emerges. Is the trial court powerless to set aside the finding of guilt? Must it go through with the charade of sentencing a demonstrably innocent person, leaving him to fruitlessly exhaust his direct appeals before bringing a meritorious petition for writ of actual innocence? Of course not; no one would insist that in a case that’s still within the control of the trial court, such a person should not be able to seek an immediate vacation of his finding of guilt.

I’m not going to insist here that trial courts emphatically do or do not have the right to defer findings under this or similar circumstances. As noted above, I haven’t seen an opinion that fully addresses these issues, and I haven’t done the analysis myself; I know when to stop short of making definitive legal pronouncements without having done the required background work. But in my opinion, Virginia jurisprudence in this field leaves me still hungry to know the answers to these objections. Perhaps the Supreme Court will resolve those objections in the near future.