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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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Can anything be done for a guy--after someone pleaded guilty-per

Customer Question

Can anything be done for a guy--after someone pleaded guilty-per the advice of his lawyer. for felony charges/ was being with two brothers-in the removal of scrap medal-without permission to remove....in Pittsylvania County, Va.-all 3 were charged with the same things..all pleaded guilty-my son and one of the other brothers had the same prior record/misdemeanors.---the other brother a prior felon...my son got 4 years in jail...the two brothers 1 with misdemeanors/like my son -his time was suspended completely..the other brother-the prior felon..Judge Strauss gave him 1 year in jail.-(whats going on here!!) all these sentences were from last Sept. to Jan. of this year 2013...
Can/could it be possible for my son to get help in this situation..I believe in being punished for doing wrong...but hey--this was his 1st felon,,,not his 2nd or 3rd...this is just not right...period..the punishment should fit the crime....just wondering if anything could be done to help my son..he's still incarcerated and will be for 2 & 1/2 more years..
Let me know and thanks for your answer...Verna Conner
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Nate replied 1 year ago.
My name isXXXXX have been a licensed attorney practicing criminal defense for over ten years and will be assisting you today.

I am sorry to hear of your son's situation. However, a year and a half into the sentence, there's only so much that can be legally done. Has he come up for parole yet?
Customer: replied 1 year ago.

No one has mentioned parole at all --all they told us was that he had to go to jail for 4 years...How long has he got to stay in, before parole???-just how does that work?

Expert:  Nate replied 1 year ago.
I apologize but I thought I read West Virginia as your state, not Virginia. Virginia abolished parole in 1995.

The only thing left to look into is a commutation from the governor. A commutation is a way to reduce the sentence. As it appears his sentence was much more severe than the other two, you would rely on that to argue that he should be released from custody.

Commutations are rare but they are the only option at this point (they are granted, as can be seen here,

http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf388852570f9006f1299/0407b390e94aad9e852579bf005c4445/$FILE/SD2.pdf

). Call the governor's office at(NNN) NNN-NNNNand request information and they can send you the forms and instructions.
Customer: replied 1 year ago.

He mis read the state--

Expert:  Nate replied 1 year ago.
Yes, and I provided the information needed to do what you can to help. Let me repost it in case it was missed:

The only thing left to look into is a commutation from the governor. A commutation is a way to reduce the sentence. As it appears his sentence was much more severe than the other two, you would rely on that to argue that he should be released from custody.

Commutations are rare but they are the only option at this point (they are granted, as can be seen here,

http://leg2.state.va.us/dls/h&sdocs.nsf/fc86c2b17a1cf388852570f9006f1299/0407b390e94aad9e852579bf005c4445/$FILE/SD2.pdf

). Call the governor's office at(NNN) NNN-NNNNand request information and they can send you the forms and instructions.
Customer: replied 1 year ago.


Miss-read the state---don't need anything else...

Expert:  MyraB replied 1 year ago.

Hello. I see that your prior expert opted out of the question, and I hope I can help you further. I am sorry to hear of your son's situation.

As you may know Virginia has truth in sentencing which means that without anything being done, your son will likely have to serve 85% of his sentence before he is released. Because there is a great disparity in the sentences that the co-defendants received, your son may want to file a Motion for Suspension or Modification of Sentence under Virginia Code 19.2-303 which provides that:

"If a person is sentenced to jail upon conviction of a misdemeanor or a felony, the court may, at any time before the sentence has been completely served, suspend the unserved portion of any such sentence, place the person on probation for such time as the court shall determine, or otherwise modify the sentence imposed."

The statute may be found here http://www.lawserver.com/law/state/virginia/va-code/virginia_code_19-2-303 (fifth paragraph)

As grounds for the motion your son could argue that the co-defendants who were convicted of the same crime received much lesser sentences and in the interests of justice his sentence should be modified so that it is consistent with what the others received, and even be suspended entirely, as was one co-defendant's sentence. It may be that because the cases were disposed of separately the judge did not make the connection and did not realize how widely different the sentences were. Although I do not know all the circumstances, the motion would seem to have some chance of success. The motion would be made in the court where the case was heard.

Please feel free to ask any follow-up questions.

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