RESOURCES

WHAT ARE SOME EXAMPLES OF CASES ATTORNEY SIMMS HAS WORKED ON?

WHAT ARE THE FELONY CLASSIFICATIONS IN VIRGINIA?

§ 18.2-10 of the Virginia code provides for the punishment for conviction of felony offenses

The authorized punishments for conviction of a felony are:(a) For Class 1 felonies, death, if the person so convicted was 18 years of age or older at the time of the offense and is not determined to be a person with intellectual disability pursuant to § 19.2-264.3:1.1, or imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000. If the person was under 18 years of age at the time of the offense or is determined to be a person with intellectual disability pursuant to § 19.2-264.3:1.1, the punishment shall be imprisonment for life and, subject to subdivision (g), a fine of not more than $100,000.(b) For Class 2 felonies, imprisonment for life or for any term not less than 20 years and, subject to subdivision (g), a fine of not more than $100,000.(c) For Class 3 felonies, a term of imprisonment of not less than five years nor more than 20 years and, subject to subdivision (g), a fine of not more than $100,000.(d) For Class 4 felonies, a term of imprisonment of not less than two years nor more than 10 years and, subject to subdivision (g), a fine of not more than $100,000.

(e) For Class 5 felonies, a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

(f) For Class 6 felonies, a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.

WHAT ARE THE MISDEMEANOR CLASSIFICATIONS IN VIRGINIA?

Class 1 misdemeanors are the most serious misdemeanors in Virginia. A Class 1 misdemeanor is punishable by:

• up to 12 months in jail
• a fine of up to $2,500, or
• both.

If lawmakers fail to designate a misdemeanor or set forth a particular punishment, then a crime is punishable as a Class 1 misdemeanor.

(Va. Ann. Code § § 18.2-11, 18.2-12.)

Class 2 misdemeanors are punishable by:

• up to six months in jail
• a fine of up to $1,000, or
• both.

Class 3 and 4 misdemeanors, the least serious misdemeanors, are punishable by fines, but no jail time. A Class 3 misdemeanor is punishable by a fine of up to $500. A Class 4 misdemeanor is punishable by a fine of up to $250. (Va. Ann. Code § 18.2-11.)

WHAT THINGS SHOULD I CONSIDER WHEN LOOKING FOR AN ATTORNEY?

The process of selecting an attorney to handle your legal needs can be very stressful. There are many attorneys in Virginia and Washington D.C., but it’s important to find the RIGHT attorney for YOU. While searching for an attorney, you should consider the following questions:

The questions above should be addressed when searching for your attorney. They are important aspects of the attorney –client relationship. The attorneys at The Simms Firm, PLC have no doubt that you will be satisfied with our experience, knowledge, accessibility, and ability to communicate complex legal issues to you and your family.

The links found on the left side of the page may be useful to you as you navigate your way through legal issues. Please take a minute to review and determine if you will need any of the listed information. Also, please see the below chart for reference regarding Federal Drug charges.

WHAT IS A PRELIMINARY HEARING?

The following applies to a preliminary hearing in the Commonwealth of Virginia (General District Court). A preliminary hearing is a procedural requirement. The right to a preliminary hearing applies to criminal law defendants that are arrested on a felony offense prior.  The hearing occurs prior to indictment by the grand jury.

The preliminary hearing is conducted by the general district court.  During the preliminary hearing a judge will determine whether there is “reasonable ground to believe” that the accused individual committed a felony offense. The general district court judge hears the evidence presented for and against the accused, and then makes 1 of 3 determinations:

(1) there is insufficient cause for charging the accused, in which case the accused shall be released;

(2) there is sufficient cause only to charge the accused with a misdemeanor, in which case the court may proceed to try the accused; or

(3) there is sufficient cause to charge the accused with a felony, in which case the court shall certify the case to the circuit court.

It should be noted that The Commonwealth Attorney may obtain a true bill of indictment even after a preliminary hearing determination that there is not grounds to charge the defendant with a felony. This process is known as obtaining a direct indictment.

The preliminary hearing will represent the first opportunity that your defense attorney has to cross examine the prosecutor’s witnesses and test the evidence against the accused.

WHAT HAPPENS AT/PRIOR TO THE PRELIMINARY HEARING?

Defense attorneys can obtain limited discovery prior to preliminary hearings.  Prior to the hearing the attorney may file a written motion to discover:

(1) any relevant written or recorded statements, any confessions made by the accused, or copies thereof, and the substance of any oral statements and confessions made by the accused to any law enforcement officer; and

(2) any criminal record of the accused. Such material is discoverable when the existence of such is known or becomes known to the prosecuting attorney and such material or information is to be offered against the accused in a general district court.

During the preliminary hearing the district court hears the evidence presented for and against the accused. The prosecutions burden at the preliminary hearing is much lower than “beyond a reasonable doubt”. At the preliminary hearing the prosecutor’s burden is only to make out a prima facie case that a felony has been committed. This is why most cases that are not negotiated, make it past this initial stage.

During the preliminary hearing the defense has the right to cross examine the Commonwealth witnesses, to call witnesses in their behalf, and to testify in their own behalf. The defenses evidence must be of that type that shows either that the crime had not been committed or that the defendant had not committed the crime.

STANDARD OF PROOF AT THE PRELIMINARY HEARING

The Code of Virginia describes the standard of proof in a preliminary hearing as “sufficient cause” for charging the accused with a felony. The Virginia Supreme Court has used the terms “probable cause” and “reasonable ground to believe” that the accused committed a felony. Practically, the term “prima facie case” appears to be an accurate description of the Commonwealth’s burden. This burden is much lower than the burden which will be required at the trial.

EVIDENTIARY RULES AT A PRELIMINARY HEARING

The law of Virginia requires all parties to adhere to the rules of evidence during preliminary hearings. Hearsay evidence is not permitted, unless there is some legal exception. An example of this is that, certificates of laboratory analysis and the reports of medical examiners are admissible in evidence without the testimony of the person preparing such certificate.

POST CONVICTION CONSIDERATIONS IN FEDERAL COURT

(1) Pre-Sentencing Release v. Pre-Sentence Detention

Immediately after a trial in which a person has been convicted, a judge will determine whether the defendant should be held in custody until sentencing, or should remain on bond and ordered to appear for sentencing hearing. Defense attorneys, will argue that their client should remain on bond pending sentencing. Persuasive arguments include that the client has always attended meetings at the office, never missed a court appearance, and although the client now has a conviction, he/she is not an immediate threat to the community or a flight risk. In many jurisdictions, once an individual is convicted, they are held prior to sentencing; however, a well prepared attorney can make a strong argument for release.

(2) Post-Trial Motions

In the case of a defendant that receives a guilty verdict, there may be occasion where defense counsel can file post-trial motions to remedy the matter. Common post-trial motions are as follows:

• Rule 29 Motion for a Judgment of Acquittal – within 14 days of a guilty verdict, defense counsel may move for a judgement of acquittal if the evidence was insufficient to sustain a conviction. Thus, if the Government fails to present sufficient evidence of each offense, defense counsel may move for the acquittal after the jury returns a guilty verdict.
• Rule 33 Motion for New Trial – Defense counsel may also move for a new trial if “the interest of justice so requires.” Thus, if newly discovered evidence is later found, or any other reason in the interest of justice, we may request a new trial.

(3) Pre-Sentence Investigation Report

If a client is found guilty, a presentence investigation report will be prepared through the Probation Office. The client will meet with a probation officer, who will then submit a report to the court, before the court imposes a sentence. The presentence report will investigate the nature of the crime, the client’s background, and mitigating circumstances.

The presentence report requires a client to bring in several documents to the interview with the probation office, including bank records, deeds, debts, financial statements, personal background information, etc. The probation office will also ask for a list of family members, whom they will reach out to, in order to verify aspects of a client’s background. They will compile all of the materials provided to them and include each aspect into a portion of the report.

(4) Sentencing Memorandum

Along with the presentence investigation report, the court also allows the defense an opportunity to present information on a client’s behalf. Defense counsel will compile a sentencing memorandum that highlights the alleged violations, personal background, education, network of community support, and an argument for an alternative sentencing, which will include an explanation on why a client should be sentenced to the low end, or below, the recommended sentencing guideline range. Additionally, defense counsel will ask that the client compile letters from friends, family members, and members within the community that highlight your general good character and integrity. The letters are attached to the sentencing memorandum.

(5) The Sentencing Hearing

At the sentencing hearing, each side will be given an opportunity to speak. The court will begin by asking either side whether they have any objections to the presentence investigation report. Defense counsel will have previously thoroughly reviewed the report will note our objections, if any are present.

The government will then have an opportunity to speak. The government will explain their sentencing position, recommending the judge sentence the client within a particular point in your sentencing guideline range. After the government argues their point, defense counsel will then argue our sentencing position. Defense counsel will essentially argue the points that were previously wrote in the sentencing memorandum. Defense counsel will highlight the client’s background.

(6) BOP Recommendations/Self-Surrender

If a client is ordered to serve a period of incarceration, defense counsel will be able to recommend that the client serve the period of incarceration at a particular prison. Although this is simply a recommendation, the Bureau of Prisons takes the recommendation into consideration when placing individuals.

WHAT IS THE FIRSTS STEP AFTER ARREST ON A FEDERAL CHARGE?

When a person is arrested on allegations that he/she has committed a federal crime, the first step in the process is called an initial appearance, which is commonly referred to as a “Rule 5 Hearing”.  This appearance will occur within 24 hours of the arrest.  The accused nor his family has usually had time to retain legal counsel, so at this initial step the accused usually appears unrepresented.  The following is what the law says about the initial appearance under Rule 5 of the Federal Rules of Criminal Procedure.

Rule 5. Initial Appearance

(a) In General.

(1) Appearance Upon an Arrest.

(A) A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise.

(B) A person making an arrest outside the United States must take the defendant without unnecessary delay before a magistrate judge, unless a statute provides otherwise.

(2) Exceptions.

(A) An officer making an arrest under a warrant issued upon a complaint charging solely a violation of 18 U.S.C. §1073 need not comply with this rule if:

(i) the person arrested is transferred without unnecessary delay to the custody of appropriate state or local authorities in the district of arrest; and

(ii) an attorney for the government moves promptly, in the district where the warrant was issued, to dismiss the complaint.

(B) If a defendant is arrested for violating probation or supervised release, Rule 32.1 applies.

(C) If a defendant is arrested for failing to appear in another district, Rule 40 applies.

(3) Appearance Upon a Summons. When a defendant appears in response to a summons under Rule 4, a magistrate judge must proceed under Rule 5(d) or (e), as applicable.

(b) Arrest Without a Warrant. If a defendant is arrested without a warrant, a complaint meeting Rule 4(a)’s requirement of probable cause must be promptly filed in the district where the offense was allegedly committed.

(c) Place of Initial Appearance; Transfer to Another District.

(1) Arrest in the District Where the Offense Was Allegedly Committed. If the defendant is arrested in the district where the offense was allegedly committed:

(A) the initial appearance must be in that district; and

(B) if a magistrate judge is not reasonably available, the initial appearance may be before a state or local judicial officer.

(2) Arrest in a District Other Than Where the Offense Was Allegedly Committed. If the defendant was arrested in a district other than where the offense was allegedly committed, the initial appearance must be:

(A) in the district of arrest; or

(B) in an adjacent district if:

(i) the appearance can occur more promptly there; or

(ii) the offense was allegedly committed there and the initial appearance will occur on the day of arrest.

(3) Procedures in a District Other Than Where the Offense Was Allegedly Committed. If the initial appearance occurs in a district other than where the offense was allegedly committed, the following procedures apply:

(A) the magistrate judge must inform the defendant about the provisions of Rule 20;

(B) if the defendant was arrested without a warrant, the district court where the offense was allegedly committed must first issue a warrant before the magistrate judge transfers the defendant to that district;

(C) the magistrate judge must conduct a preliminary hearing if required by Rule 5.1;

(D) the magistrate judge must transfer the defendant to the district where the offense was allegedly committed if:

(i) the government produces the warrant, a certified copy of the warrant, or a reliable electronic form of either; and

(ii) the judge finds that the defendant is the same person named in the indictment, information, or warrant; and

(E) when a defendant is transferred and discharged, the clerk must promptly transmit the papers and any bail to the clerk in the district where the offense was allegedly committed.

(4) Procedure for Persons Extradited to the United States. If the defendant is surrendered to the United States in accordance with a request for the defendant’s extradition, the initial appearance must be in the district (or one of the districts) where the offense is charged.

(d) Procedure in a Felony Case.

(1) Advice. If the defendant is charged with a felony, the judge must inform the defendant of the following:

(A) the complaint against the defendant, and any affidavit filed with it;

(B) the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel;

(C) the circumstances, if any, under which the defendant may secure pretrial release;

(D) any right to a preliminary hearing; and

(E) the defendant’s right not to make a statement, and that any statement made may be used against the defendant; and

(F) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested — but that even without the defendant’s request, a treaty or other international agreement may require consular notification.

(2) Consulting with Counsel. The judge must allow the defendant reasonable opportunity to consult with counsel.

(3) Detention or Release. The judge must detain or release the defendant as provided by statute or these rules.

(4) Plea. A defendant may be asked to plead only under Rule 10.

SENTENCING GUIDELINE ENHANCMENTS FOR DRUG RELATED OFFENSES

The following “specific offense characteristics” can negatively impact federal sentencing guideline ranges in U.S. District Court.  This information can be found in the United States  Sentencing Guideline Manual.

(1)If a dangerous weapon was possessed.

(2)If the defendant used violence, made a credible threat to use violence, or directed the use of violence.

(3)If the defendant unlawfully imported or exported a controlled substance under circumstances in which (A) an aircraft (non-commercial) was used to import or export the controlled substance, (B) a submersible vessel or semi-submersible vessel was used, or (C) the defendant accepted as a pilot, copilot, captain, navigator, flight officer aboard any craft or vessel carrying a controlled substance.

(4)If the object of the offense was the distribution of a controlled substance in a prison or jail.

(5)If (A) the offense involved the importation of amphetamine or methamphetamine or the manufacture of amphetamine or methamphetamine from listed chemicals that the defendant knew were imported unlawfully.

(6)If the defendant is convicted under 21 U.S.C. 865

(7)If the defendant distributed a controlled substance through mass-marketing by means of an interactive computer service.

(8)If the offense involved the distribution of an anabolic steroid and a masking agent.

(9)If the defendant distributed an anabolic steroid to an athlete.

(10)If the defendant was convicted under 21 U.S.C. 841(g)(1)(A)

(11) If the defendant bribed, or attempted to bribe, a law enforcement officer to facilitate the commission of the offense.

(12) If the defendant maintained a premise for the purpose of manufacturing or distributing a controlled substance.

CHARGED WITH FORGERY(18.2-172 of the Va. Code), CONSIDER THE FOLLOWING:

18.2-172 of the Virginia Code defines Forgery as the following.

If any person forge any writing, other than such as is mentioned in §§ 18.2-168 and 18.2-170, to the prejudice of another’s right, or utter, or attempt to employ as true, such forged writing, knowing it to be forged, he shall be guilty of a Class 5 felony. Any person who shall obtain, by any false pretense or token, the signature of another person, to any such writing, with intent to defraud any other person, shall be deemed guilty of the forgery thereof, and shall be subject to like punishment.

There are several considerations and defenses that can be raised on behalf of the client charged with a violation of this section.

1. Venue: If the prosecutor failed to ask the location of the alleged crime, and failed to ask the court to take judicial notice of the location. Harris v. Commonwealth, 2006 Va. App. LEXIS 493
2. Was There Lack of Authorization: The prosecutor must prove that the client falsely made or materially altered a writing without the authority to do so, and did so to the prejudice of another’s right. Manas v. Commonwealth. In order to meet this requirement, the person who’s signature was allegedly forged must appear in court to testify that permission was not given. At times, this can be a difficult hurdle if the person is from out of state or doesn’t wish to take part in the proceedings. Beiler v. Commonwealth.
3. Materiality: The prosecutor must show that the alleged forgery induces another person to act. In other words the alleged forgery must have influenced the person to take a course of action. If the course of action is immaterial, then the prosecution cannot sustain it’s burden.
4. Is the Writing Valid: Writings that are invalid on their face are not subjects of forgery.
5. What is Uttering: Uttering is defined as to put or send, as a forged check, into circulation. Bateman v. Commonwealth. In other words, Uttering is an assertion by word or action that writing known to be forged is good and valid. Gordon v. Commonwealth.
6. Knowledge by Accused: The prosecution must prove that the accused knew that the check was forged at the time it was tendered for payment. Hutchings v. Commonwealth.
7. Production of Forged Document. The prosecution, under the “best evidence” rule must present the actual instrument or document that was forged unless it can be shown that it’s production was impossible due to destruction or other unavoidable factors. Pendleton v. Commonwealth.

The Simms Firm, PLC IS experienced in handling cases involving forgery. If you have been charged with this offense contact the firm today.

CHARGED WITH DISTRIBUTION OR INTENT TO DISTRIBUTE?

In Virginia narcotic distribution is addressed by 18.2-248.  There are many considerations and defenses that can be raised for a client charged with an offense under this code section.

There have been many cases in which the courts have found that the prosecution has failed to exclude “every reasonable hypothetical of innocence”.

In Plunkett v. Commonwealth, the Court ruled that the evidence did not exclude the very real possibility that someone other than the defendant used or had access to the bag and left (planted) narcotics in it without the defendant knowing.

In Silencieux v. Commonwealth, the Court addressed a car stop in which narcotics were found in a car with two individuals.  The driver was cooperative, consented to the search, and he had no narcotics on his person.  No acts, statements, or conduct of defendant suggested he had knowledge of the drugs.

Contact the The Simms Firm, PLC if you have been charged with a criminal offense under 18.2-248.

CHARGED WITH STRANGULATION? CONSIDER THIS:

 18.2-51.6 of the Virginia Code states the following:

 Any person who, without consent, impedes the blood circulation or respiration of another person by knowingly, intentionally, and unlawfully applying pressure to the neck of such person resulting in the wounding or bodily injury of such person is guilty of strangulation, a Class 6 felony.

There are considerations and defenses that can be raised for a client charged with an offense under this code section.

The prosecution must prove that the complainant suffered actual bodily injury. If there was no medical attention required, there was no visible bruising, or there were no complaints of injury then the evidence will not support a conviction. Chilton v. Commonwealth.

FEDERAL TRAFFICKING PENALTIES: SCHEDULES I, II, III, IV, AND V

Cocaine 500-4999 grams mixture 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)

Cocaine 5 kilograms or more 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)

Cocaine base 28-279 grams 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)

Cocaine base 280grams of more 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)

Fentanyl 40-399 grams mixture 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)

Fentanyl Analogue 10-99 grams mixture 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)

Fentanyl 400 grams or more mixture 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)

Fentanyl analogue 100 grams or more mixture 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)

Heroin 100-999 grams mixture 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)

Heroin 1 kilogram or more mixture 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)

LSD 1-9 grams mixture 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)

LSD 10 grams or more mixture 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)

Methamphetamine 5-49 grams pure or 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)
50-499 grams mixture

Methamphetamine 50 grams or 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)
more pure or 500 grams or more mixture

PCP 10-99 grams pure or 1st Offense: 5-40yrs (5yrs Mandatory) 2nd Offense: 10-Life (10yrs Mandatory)
100-999 grams mixture

PCP 100 grams or more pure or 1st Offense: 10-Life (10yrs Mandatory) 2nd Offense: 20-Life (20yrs Mandatory)
1 kilogram or more mixture