CAV RULING AND PROGRAMMING NOTE
(Posted August 7, 2020) Around here, this week will be better remembered for the weather than for appellate developments. Tidewater and other parts of eastern and northern Virginia got an unwelcome visit from a tropical storm on Tuesday, and one section of Virginia Beach saw 6” of rain in one afternoon. Meanwhile, things have been quiet at Ninth and Franklin; there were no writ grants and no new decisions handed down by the SCV this week, published or otherwise.
The Court of Appeals didn’t let us down; we saw two published opinions this week, including a novel question of statutory priority. In Holloway v. Commonwealth, a panel of the court considered two seemingly contradictory statutes. The first is the prohibition on selling drugs, third or subsequent offense. That provides that a conviction requires at least a ten-year sentence, “which shall be a mandatory minimum term of imprisonment to be served consecutively with any other sentence.” That seems clear enough.
But another statute offers succor to a defendant who offers substantial assistance to prosecutors:
Notwithstanding any other provision of law or rule of court, upon motion of the attorney for the Commonwealth, the sentencing court may reduce the defendant’s sentence if the defendant, after entry of the final judgment order, provided substantial assistance in investigating or prosecuting another person for (i) an act of violence as defined in § 19.2-297.1 ….
So, can the trial court use this provision to reduce what the law states is a mandatory minimum sentence? On Tuesday, the CAV panel concluded that the circuit court can indeed do that. The introductory phrase, “Notwithstanding any other provision of law,” means that this judicial-mercy statute applies even if any other legal provision would prevent its application.
In this case, the circuit-court judge had declined to reduce Holloway’s ten-year sentence, feeling that he was powerless to do so. This new ruling sends the case back down so the judge can consider whether to do so. It’s a ruling of first impression, from what I can discern.
Programming note: Next week I’ll be away from the keyboard, so if any hot new rulings come down, I’ll cover them when I return to the office on Monday, August 17. I hesitate to mention this publicly, because those playful scoundrels in the Supreme Court Building might take this as a good opportunity to hand down a bushel-basketful of new decisions. But I don’t fear mentioning it here; they always seem to know when I go away for a week anyway, whether I mention it or not. Be well, folks, and I’ll get back to you when I return.