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2018 SESSION

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18103651D
HOUSE BILL NO. 417 Offered January 10, 2018 Prefiled January 5, 2018 A BILL to amend the Code of Virginia by adding in Article 1 of Chapter 18 of Title 19.2 a section numbered 19.2-310.1:1, relating to modification of sentencing guidelines; new sentencing proceeding. ---------- Patron-- Guzman ---------- Referred to Committee for Courts of Justice ----------

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding in Article 1 of Chapter 18 of Title 19.2 a section numbered 19.2-310.1:1 as follows:

§ 19.2-310.1:1. Sentence modification for certain offenders.

A. Notwithstanding any other provision of law or rule of court, a person convicted of a felony offense who is incarcerated for such offense may petition for a new sentencing proceeding if (i) subsequent to the date that the person was convicted of the offense, the discretionary sentencing guidelines established by the Virginia Criminal Sentencing Commission for such offense have been modified by the Virginia Criminal Sentencing Commission and (ii) the sentence for such offense indicated by the discretionary sentencing guidelines in effect at the time of the petition is less than the sentence indicated by the discretionary sentencing guidelines in effect at the time of the conviction.

B. The petitioner shall file the petition with the circuit court that entered the original judgment order of conviction complained of in the petition. The petitioner shall allege in the petition categorically and with specificity, under oath, the following: (i) the offense for which the petitioner was convicted; (ii) the date the original judgment order of conviction or adjudication of delinquency was entered; and (iii) that the Virginia Criminal Sentencing Commission has modified the discretionary sentencing guidelines for such offense subsequent to the date of the person's conviction.

C. The petitioner shall serve a copy of the petition on the attorney for the Commonwealth for the jurisdiction where the conviction or adjudication of delinquency occurred. The attorney for the Commonwealth shall have 30 days after being served with a copy of the petition in which to file a response to the petition.

D. The court shall empanel a new jury for the purpose of conducting the new sentencing proceeding and shall notify the attorney for the Commonwealth for the county or city in which the circuit court is located. Such sentencing proceeding shall be conducted in accordance with the provisions of this article, and, pursuant to § 19.2-298.01, the court shall have presented to it the discretionary guidelines worksheet for the offense in effect at the time of the petition. Upon agreement of the attorney for the Commonwealth and the person who files a petition for a new sentencing hearing, such person may waive his right to a new sentencing proceeding and allow the court to fix punishment. No sentence imposed pursuant to this section may exceed the sentence originally imposed upon the person.

F. In any petition filed pursuant to this section, the petitioner is entitled to representation by counsel subject to the provisions of Article 3 (§ 19.2-157 et seq.) of Chapter 10.