Possible Recommendations

for Guidelines Revisions

November 5, 2014

VIRGINIA CRIMINAL SENTENCING COMMISSION

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Proposals reflect the best fit for the historical data.

Proposals are designed to closely match the

historical rate of incarceration in prison and jail.

Current guidelines worksheets serve as the base

for scoring historical cases, but the points

assigned to those factors may be different for the

new offense and new factors may be added.

Proposals for New Guidelines Offenses

Proposed Recommendation 1:

Add Distribution of Schedule IV Drugs (§ 18.2-248(E2))to the Drug/Other Guidelines

4

The penalty for distribution of a Schedule IV drug

was increased from a Class 1

misdemeanor to a Class 6

felony in 2005.

Currently, convictions under § 18.2-248(E2) are

not covered by the sentencing guidelines when

this offense is the primary (or most serious)

offense at sentencing.

Distribution of Schedule IV Drugs (§ 18.2-248(E2))

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Generally, Schedule IV drugs have less potential

for abuse and dependency compared to

Schedule III drugs. Many of these drugs are

accepted in medical treatment (e.g., managing

seizures, anxiety, and insomnia).

Schedule IV drugs have a depressant effect

on the central nervous system.

Schedule IV drugs include: Valium, Xanax,

Darvocet, Ativan, and other tranquilizers and

sedatives.

Distribution of Schedule IV Drugs (§ 18.2-248(E2))

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Disposition PercentMedian

Sentence

No Incarceration 40.5% NA

Incarceration Up to 6 Months

40.4% 2.8 Months

Incarceration More than 6 Months

19.1% 1 Year

Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))

FY2010 – FY2014131 Cases

Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; two offenders were excluded because a rap sheet could not be located.

Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

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Middle 50% of sentences: 9.5 mos. to 1.2

years

Sentence in Years

Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))

FY2010 – FY2014Offenders Sentenced to Incarceration of More than 6 Months

25 Cases

Proposed

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Create new Primary Offense scores

I. Sell, etc., Schedule IV drug

1 count ……………………………………………………………. 6 2 counts …………………………………………………………... 8

Proposed

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Create new Primary Offense scores

E. Sell, etc., Schedule IV drug

1 count .……………………………………………………………. 6 2 counts .…………………………………………………………... 9

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Proposed

Score Prior Incarcerations/Commitments and Legally Restrained factors for Schedule IV drugs in the same manner as Schedule III drugs

or Schedule IV drug

or Schedule IV drug

Proposed

Create new Primary Offense scores Prior Record Classification Category I Category II Other

I. Sell, etc., Schedule IV drug

Attempted, conspired or completed 1 count .……………… 8 ……… 4 ..……. 2

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DispositionRecommended under Proposed

Guidelines

Actual Practices Prior to

Sentencing Guidelines

No Incarceration 38.9% 40.5%

Incarceration 1 Day to 3 Months

19.8% 20.6%

Incarceration 3 Months to 6 Months

21.5% 19.8%

Incarceration More than 6 Months

19.8% 19.1%

Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))

FY2010 – FY2014131 Cases

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Sentence in Years

Distribution, etc., of a Schedule IV Controlled Substance(§ 18.2-248(E2))

FY2010 – FY2014Offenders Sentenced to Incarceration of More than 6 Months

25 Cases

Actual Sentence (median):

1 year

Proposed Guidelines Midpoint(median): 1.1 years

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Proposed Recommendation 1

Add Distribution, etc., of a Schedule IV

Controlled Substance (§ 18.2-248(E2))

to the Drug/Other Guidelines

as proposed

Proposed Recommendation 2:

Add Certain Identity Fraud Offenses (§ 18.2-186.3)to the Fraud Guidelines

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Identity Fraud (§ 18.2-186.3)

Section 18.2-186.3, defining identity fraud offenses,

was added to the Code of Virginia in 2000.

One of the five felony offenses in § 18.2-186.3(D)

is currently covered by the guidelines.

− Added in 2006

Other felonies in § 18.2-186.3(D) are not currently

covered by the sentencing guidelines as the

primary (or most serious) offense.

1

11

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Obtain identifying info. with intent to defraud §18.2-186.3(A) Class 1 misd.

Sell or distribute, obtain identifying info. with intent to defraud

§18.2-186.3(B) Class 1 misd.

Obtain identifying info. to avoid arrest or impede investigation

§18.2-186.3(B1) Class 1 misd.

Obtain identifying info. of 5 or more people §18.2-186.3(D) Class 5 felony

Obtain identifying info. of 50 or more people §18.2-186.3(D) Class 4 felony

Obtain identifying info. with intent to defraud, 2nd or subsequent

§18.2-186.3(D) Class 6 felony

Use of identifying info. to defraud, results in detention of victim

§18.2-186.3(D) Class 5 felony

Use of identifying info. to defraud, financial loss greater than $200

§18.2-186.3(D) Class 6 felony

Covered by current guidelines

Identity Fraud (§ 18.2-186.3)

Cases

1

156

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Disposition PercentMedian

Sentence

No Incarceration 19.2% NA

Incarceration Up to 6 Months

41.7% 4 Months

Incarceration More than 6 Months

39.1% 1 Year

Obtain Identifying Information with Intent to Defraud, 2nd or Subseq.(§ 18.2-186.3(D))FY2010 – FY2014

156 Cases

Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; four offenders were excluded because a rap sheet could not be located.

Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

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Middle 50% of sentences: 9 mos. to 1.3

years

Sentence in Years

Obtain Identifying Information with Intent to Defraud, 2nd or Subseq.(§ 18.2-186.3(D))

FY2010 – FY2014Offenders Sentenced to Incarceration of More than 6 Months

61 Cases

Proposed

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Create new Primary Offense scores

H. Obtain identifying information with intent to defraud, 2nd or subseq.

1 count ……..………………..………………..………..……………. 1

Proposed

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Split Prior Convictions/Adjudications factor and assign different points for Obtaining Identifying Information with Intent to Defraud, 2nd or Subsequent

Prior Convictions/Adjudications

Primary offense OTHER THAN Primary offense Obtain Identifying Info 2nd or subseq. Obtain Identifying Info 2nd or subseq.

Maximum Penalty Points Maximum Penalty Points

Years: Less than 2 ........................... 0 Years: Less than 9 ............................ 0 2 – 7 ..…..................……..…. 1 9 – 41 ….................……...…… 1 8 – 17 …..................……..…. 2 42 or more .............……...…… 2 18 – 24 …..................…….… 3 25 – 35 …..................………. 4 36 or more................………. 5

Proposed

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Split Prior Misdemeanor Convictions/Adjudications factor and assign different points for Obtaining Identifying Information with Intent to Defraud, 2nd or Subsequent

Prior Misdemeanor Convictions/Adjudications

Primary offense OTHER THAN Primary offense Obtain Identifying Info 2nd or subseq. Obtain Identifying Info 2nd or subseq.

Number of Counts Points Number of Counts Points

1 – 3 …........................... 1 1 – 5 ….…..........……...…… 14 – 6 ….….........……….. 2 6 or more …......……...…… 27 or more …....……….. 3

Proposed

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Create new Primary Offense scores

H. Obtain identifying information with intent to defraud, 2nd or subsequent

1 count ……..………………..………………..………..……………. 6

Proposed

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Add a factor to Section B to increase the recommendation in certain cases

SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION IS OBTAIN IDENTIFYING INFORMATION WITH INTENT TO DEFRAUD, 2ND OR SUBSEQ. (§ 18.2-186.3(D))

Prior Misdemeanor Convictions/Adjudications

Number of Counts Points

1 – 7 ….................................. 1 8 or more ………....……….. 4

Proposed

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Create new Primary Offense scores Prior Record Classification Category I Category II Other

G. Obtain identifying information with intent to defraud, 2nd or subseq.

1 count .…………………………….…….……... 16 ….….. 8 ....…. 4

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DispositionRecommended under Proposed

Guidelines

Actual Practices Prior to

Sentencing Guidelines

No Incarceration 19.2% 19.2%

Incarceration 1 Day to 6 Months

41.7% 41.7%

Incarceration More than 6 Months

39.1% 39.1%

Obtain Identifying Information with Intent to Defraud, 2nd or Subseq.(§ 18.2-186.3(D))FY2010 – FY2014

156 Cases

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Sentence in Years

Obtain Identifying Information with Intent to Defraud, 2nd or Subseq.(§ 18.2-186.3(D))FY2010 – FY2014

Offenders Sentenced to Incarceration of More than 6 Months61 Cases

Actual Sentence (median):

1 year

Proposed Guidelines Midpoint(median):

1 year

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Proposed Recommendation 2

Add Obtain Identifying Information with

Intent to Defraud, 2nd or Subseq. (§ 18.2-186.3(D))

to the Fraud Guidelines

as proposed

Proposed Recommendation 3:

Add Certain Credit Card Offenses (§§ 18.2-192 and 18.2-194)to the Fraud Guidelines

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Receiving, buying, or selling stolen credit card or credit card number (§ 18.2-192 (1,b), (1,c), and (1,d))

Section 18.2-192 was last modified in 1985.

One of the four felony offenses in this Code section

is currently covered by the guidelines.

− Covered by truth-in-sentencing guidelines

when implemented in 1995

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Theft of credit card or credit card number §18.2-192(1,a) Felony 1 - 20 years

Receive stolen credit card or credit card number with intent to use or sell

§18.2-192(1,b) Felony 1 - 20 years

Sell or buy stolen credit card or credit card number

§18.2-192(1,c) Felony 1 - 20 years

Receive 2 or more stolen credit cards within 12 months

§18.2-192(1,d) Felony 1 - 20 years

Possession of two or more signed credit cards

§ 18.2-194 Felony 1 - 20 years

Covered by current guidelines

Credit Card Offenses (§§ 18.2-192 and 18.2-194)

Cases

77

8

4

0

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Disposition PercentMedian

Sentence

No Incarceration 44.2% NA

Incarceration Up to 6 Months

19.5% 3 Months

Incarceration More than 6 Months

36.4% 1.1 Years

Receiving a Stolen Credit Card or Number with the Intent to Use or Sell

(§ 18.2-192(1,b))FY2010 – FY2014

77 Cases

Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; one offender was excluded because a rap sheet could not be locatedSource: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

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Middle 50% of sentences:

1 year to 2 years

Sentence in Years

Receiving a Stolen Credit Card or Number(§ 18.2-192(1,b))FY2010 – FY2014

Offenders Sentenced to Incarceration of More than 6 Months28 Cases

Proposed

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Create new Primary Offense scores

H. Receiving stolen credit card or credit card number with the intent to use or sell

1 count .....………………………..………………..………..……………. 3 2 counts ......………………………..………………..………..…………. 10

Proposed

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Create new Primary Offense scores

H. Receiving stolen credit card or credit card number with the intent to use or sell

1 count ....................………………………..………………..………..…… 7

Proposed

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Create new Primary Offense scores Prior Record Classification Category I Category II Other

G. Receiving stolen credit card or credit card number with the intent to use or sell

1 count ..………………………….…….…….. 24 …... 12 ....…. 6

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DispositionRecommended under Proposed

Guidelines

Actual Practices Prior to

Sentencing Guidelines

No Incarceration 46.8% 44.2%

Incarceration 1 Day to 6 Months

16.9% 19.5%

Incarceration More than 6 Months

36.4% 36.4%

Receiving a Stolen Credit Card or Number with the Intent to Use or Sell

(§ 18.2-192(1,b))FY2010 – FY2014

77 Cases

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Sentence in Years

Receiving a Stolen Credit Card or Number(§ 18.2-192(1,b))FY2010 – FY2014

Offenders Sentenced to Incarceration of More than 6 Months28 Cases

Actual Sentence (median):1.1 years

Proposed Guidelines Midpoint(median): 1.1 years

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Proposed Recommendation 3

Add Receiving a Stolen Credit Card or Number

with the Intent to Use or Sell (§ 18.2-192(1,b))

to the Fraud Guidelines

as proposed

Proposed Recommendation 4:

Add Strangulation Resulting in Injury or Bodily Wounding (§ 18.2-51.6)

to the Assault Guidelines

Strangulation Resulting in Bodily Injury(§ 18.2-51.6)

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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.

(Effective July 1, 2012)

Currently, convictions under § 18.2-51.6 are not

covered by the sentencing guidelines when this

offense is the primary (or most serious) offense

at sentencing

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Strangulation Resulting in Bodily Injury(§ 18.2-51.6)

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Disposition PercentMedian

Sentence

No Incarceration 21.3% NA

Incarceration Up to 6 Months

34.0% 4 Months

Incarceration More than 6 Months

44.7% 1 Year

Strangulation Resulting in Bodily Injury(§ 18.2-51.6)

FY2013 – FY201494 Cases

Note: Data reflect cases in which this offense was the primary (or most serious) offense at sentencing; one offender was excluded because a rap sheet could not be located.Source: Supreme Court of Virginia, Circuit Court Case Management System (CMS)

44

Middle 50% of sentences: 10 mos. to 2.5

years

Sentence in Years

Strangulation Resulting in Bodily Injury(§ 18.2-51.6)

FY2013 – FY2014

Offenders Sentenced to Incarceration of More than 6 Months42 Cases

Proposed

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Score Strangulation Resulting in Bodily Injury the same as Assault and Battery Against a Family Member, 3rd or Subsequent

A.Assault and battery against a family member, 3rd or subseq. or strangulation resulting in bodily injury

1 count ……..………………..………………..………..……………. 2

C. Any attempted or conspired assault and battery or unlawful injury

1 count ..……………………..………………..………..……………. 1

Proposed

Also score this factor for strangulation

SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION IS A:ASSAULT & BATTERY AGAINST A FAMILY MEMBER (§ 18.2-57.2(B))

OR STRANGULATION (§ 18.2-51.6)

Proposed

Split Additional Offense factor and assign higher points for Strangulation Resulting in Bodily Injury

Additional Offenses

Primary offense OTHER THAN Primary offense Strangulation § 18.2-51.6 Strangulation § 18.2-51.6

Maximum Penalty Points Maximum Penalty Points

Years: Less than 5 .......................... 1 Years: Less than 5 ............................ 5 5 or more................……..…. 2 5 or more...............……...…… 6

Proposed

Split Prior Convictions/Adjudications factor and assign higher points for Strangulation Resulting in Bodily Injury

Prior Convictions/Adjudications

Primary offense OTHER THAN Primary offense Strangulation § 18.2-51.6 Strangulation § 18.2-51.6

Maximum Penalty Points Maximum Penalty Points

Years: Less than 5 .......................... 0 Years: Less than 4 ............................. 0 5 – 18 …..................……..…. 1 4 – 15 ….................……...…… 3 19 – 38 …................……..…. 2 16 – 38 .…...............……...…… 4 39 or more................………. 3 39 or more ...............……...….. 5

Proposed

SCORE THE FOLLOWING FACTORS ONLY IF PRIMARY OFFENSE AT CONVICTION ISASSAULT & BATTERY AGAINST A FAMILY MEMBER (§ 18.2-57.2(B))

OR STRANGULATION (§ 18.2-51.6)Also score these factors for strangulation

Proposed

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Score Strangulation Resulting in Bodily Injury the same as Assault and Battery Against a Family Member, 3rd or Subsequent

Prior Record Classification Category I Category II Other

A. Assault and battery against a family member, 3rd or subseq. or strangulation resulting in bodily injury

1 count .…………………………….…….…... 28 ...….. 14 ...… 7

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DispositionRecommended under Proposed

Guidelines

Actual Practices Prior to

Sentencing Guidelines

No Incarceration 24.5% 21.3%

Incarceration 1 Day to 3 Months

6.4% 6.4%

Incarceration 3 Months to 6 Months

28.7% 27.7%

Incarceration More than 6 Months

40.4% 44.7%

Strangulation Resulting in Bodily Injury(§ 18.2-51.6)

FY2013 – FY201494 Cases

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Sentence in Years

Strangulation Resulting in Bodily Injury(§ 18.2-51.6)

FY2013 – FY2014Offenders Sentenced to Incarceration of More than 6 Months

42 Cases

Actual Sentence (median):

1 year

Proposed Guidelines Midpoint(median): 1.3 years

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Proposed Recommendation 4

Add Strangulation Resulting in Bodily Injury (§ 18.2-51.6)

to the Assault Guidelines

as proposed

Other Analyses:

Indecent Liberties (§§ 18.2-370(A) and 18.2-370.1(A))

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Proposals are designed to maximize compliance

and balance mitigation and aggravation rates to

the extent possible.

Current guidelines worksheets serve as the base

for scoring historical cases, but the points

assigned to those factors may be adjusted and

new factors may be added.

Proposals for Revisions to Existing Guidelines Offenses

Compliance with the current guidelines for these offenses is well below the overall compliance rate and when judges depart, they are significantly more likely to sentence above the guidelines than below.

Indecent Liberties withChild under Age 15

(§ 18.2-370(A))

Class 5 felony

Indecent Liberties by Custodian(§ 18.2-370.1(A))

Class 6 felony

Note: Cases with scoring errors were excluded from the analysis.

Cases = 291 Cases = 228

Compliance 70.1%

Mitigation 8.2%

Aggravation 21.6%

Compliance 62.3%

Mitigation 9.2%

Aggravation 28.5%

Compliance with Sentencing Guidelines forIndecent Liberties (§ 18.2-370(A) and § 18.2-370.1(A))

FY2010 – FY2014

56

57

Actual versus Recommended Dispositions forIndecent Liberties with Child under Age 15 (§ 18.2-370(A))

FY2010 – FY2014

ActualPractice

Recommendedunder Current

Sentencing Guidelines

Probation or Incarceration Up to 6 Months

27.1% 35.4%

Incarceration More than 6 Months(Range includes prison)

72.9% 64.6%

Current guidelines could be more closely aligned with the

actual prison incarceration rate

58

Compliance with Sentencing Guidelines forIndecent Liberties with Child under Age 15 (§ 18.2-370(A))

FY2010 – FY2014

Cases in which guidelines recommendincarceration of more than 6 months(range includes prison)

Cases = 188

59

Actual versus Recommended Dispositions forIndecent Liberties by Custodian (§ 18.2-370.1(A))

FY2010 – FY2014

ActualPractice

Recommendedunder Current

Sentencing Guidelines

Probation or Incarceration Up to 6 Months

38.2% 50.9%

Incarceration More than 6 Months(Range includes prison)

61.8% 49.1%

Current guidelines could be more closely aligned with the

actual prison incarceration rate

60

Compliance with Sentencing Guidelines forIndecent Liberties by Custodian (§ 18.2-370.1(A))

FY2010 – FY2014

Cases = 112

Cases in which guidelines recommendincarceration of more than 6 months(range includes prison)

61

Modify Primary Offense scoring for Indecent Liberties

D. Indecent liberties with a child under age 15

1 count …………………………………………………………………………… 3 2 counts ………………………………………………………………………….. 6 3 counts ………………………………………………………………………….. 9

Indecent liberties by custodian

1 count …………………………………………………………………………… 2 2 - 3 counts ..…………………………………………………………………….. 7

If total is 8 or less, go to SECTION B. If total is 9 or more, go to SECTION C.

Modify Primary Offense scoring for Indecent Liberties

C. Indecent liberties with a child under age 15 (completed)

1 count …………………………………………………………………………….. 2

Indecent liberties by custodian (completed)

1 count …………………………………………………………………………….. 1 2 counts …………………………………………………………………………… 4

Split Victim Age factor and assign higher points for Indecent Liberties

Victim Less than Age 13 at Time of Offense

Primary offense OTHER THAN Primary offense is Indecent Liberties Indecent Liberties § 18.2-370(A) or § 18.2-370.1(A)

If YES, add 3 If YES, add 462

Add new factor for Victim Injury

SCORE THE FOLLOWING FACTOR ONLY IF PRIMARY OFFENSE AT CONVICTION ISINDECENT LIBERTIES

Victim Injury

Primary offense is Indecent Liberties with Primary offense is Indecent Liberties Child under Age 15 § 18.2-370(A) by Custodian § 18.2-370.1(A)

Threatened/Emotional ………………… 1 Threatened/Emotional ………………… 3 Physical/Life Threatening …………….. 2 Physical/Life Threatening …………….. 4

63

Dispositional Compliance

OverallCompliance

Current Projected

Compliance 78.7% 80.1%

Mitigation 6.2% 7.9%

Aggravation 15.1% 12.0%

Compliance with Sentencing Guidelines forIndecent Liberties with Child under Age 15 (§ 18.2-370(A))

FY2010 – FY2014

Current Projected

Compliance 70.1% 70.4%

Mitigation 8.2% 10.0%

Aggravation 21.6% 19.6%

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Dispositional Compliance

OverallCompliance

Current Projected

Compliance 64.0% 72.4%

Mitigation 6.6% 14.0%

Aggravation 29.4% 13.6%

Compliance with Sentencing Guidelines forIndecent Liberties with Child by Custodian (§ 18.2-370.1(A))

FY2010 – FY2014

Current Projected

Compliance 62.3% 61.8%

Mitigation 9.2% 17.1%

Aggravation 28.5% 21.1%

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Percentage Recommended for Incarceration of More than 6 Months

(Section C)

Indecent Liberties with Child under Age 15

68.7% As proposed

Indecent Liberties by Custodian

60.1% As proposed

Aggravated Sexual Battery

86.1% Current

All other 62.5% Current

Aggravated Sexual Battery and Other Offenses Covered by the Other Sexual Assault Guidelines

FY2010 – FY2014

Note: Rape, forcible sodomy, and object sexual penetration (i.e., sex offenses with a statutory maximum penalty of life) are covered by the Rape sentencing guidelines.

66

Victim Less than Age 13 at Time of Offense

If YES, add 4

Add new factor for Victim Injury Victim Injury

Primary offense OTHER THAN Primary offense is Indecent Liberties Indecent Liberties by Custodian § 18.2-370.1(A) by Custodian § 18.2-370.1(A)

Threatened/Emotional ……………… 1 Threatened/Emotional ……………… 3 Physical/Life Threatening …………… 2 Physical/Life Threatening …………… 4

Scoring remaining sexual assault offenses on proposed Section B Victim Age and Victim Injury factors

67

Aggravated Sexual Battery

Carnal Knowledge, Incest, and Other Sexual

Assault Offenses

Note: Cases with scoring errors were excluded from the analysis.

Compliance with Sentencing Guidelines forOther Sexual Assault Offenses

FY2010 – FY2014

Current

Scoring Proposed

Factors

Compliance 68.7% 69.0%

Mitigation 15.3% 15.7%

Aggravation 15.9% 15.3%

Current

Scoring Proposed

Factors

Compliance 72.8% 72.5%

Mitigation 8.1% 8.4%

Aggravation 19.1% 19.1%

68