On February 18, we appeared for a sentencing on the charge of Possession of a Cell Phone in Jail. Our client had been convicted of the charge a few months ago after a full trial in the Augusta Circuit Court.
Criminal sentencing — the punishment phase of a criminal trial — usually occurs a few months after a person is found guilty. This is so because the probation office needs to prepare a presentence investigation report (called a “PSI”). The probation officer also prepares the sentencing guidelines for the judge to consider. In Virginia, guidelines are discretionary, but a judge must consult them. They represent the statistical range of punishments handed down in Virginia to all those convicted of certain crimes. (Not all crimes have sentencing guidelines — Possession of a Cell Phone is one is not covered by guidelines).
The judge sentenced our client to 6 months in prison. This is long, but the new prosecutor in Augusta is now pushing for 12 month sentences, so this was at the lower range of the potential punishments. Our client wants to appeal — and he has good grounds. We asked the judge to release our client on bond pending the appeals and this request was granted. He walked out of jail with us, free to fight the charge with us another day.
In Virginia, a post sentence release pending an appeal is not common. However, in situations where the entire sentence is likely to be served prior to the appeals being heard, and where the defendant is not a danger to the community or a risk of flight, a judge may agree to post-conviction release.
The main issue on appeal is whether the prosecutor proved that our client actually possessed a “cellular telephone.” There are many types of mobile phones in use today, not all of which use “cellular” technology. For this reason, the statute was amended (after our client was charged) to criminalize the possession of these other “wireless telecommunication devices.”
Our client is optomistic about his chances on appeal; we are, too. A criminal defense attorney and his or her client must realize that there will be victories and setbacks in a criminal proceeding. A case is not over until it is over.