Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, March 24, 1991 TAG: 9103240122
SECTION: VIRGINIA PAGE: D1 EDITION: METRO
SOURCE: VICTORIA RATCLIFF STAFF WRITER
DATELINE: LENGTH: Long
It wasn't Dooley's first brush with law.
In 1972, the Roanoke man had been convicted of distributing LSD and hashish, according to Botetourt County Commonwealth's Attorney Buck Heartwell.
In 1973, he was convicted of two more counts of drug distribution and served time in the penitentiary.
In 1984, he was convicted of possessing marijuana with the intent to distribute. And in 1986 he was convicted of possessing methamphetamine with the intent to distribute, Heartwell said.
But when Heartwell computed the sentence Dooley should receive under new sentencing guidelines that judges around the state are now being urged to follow, he was shocked.
"Under the guidelines, he was not eligible for a jail sentence," he said. "It really stunned me. I ran the computations time and again."
To find a recommended sentence under the guidelines, numerical points are given for various factors of a crime and a defendant. The guidelines were set up to ensure that similar offenders throughout Virginia received similar punishments for similar crimes.
Had Dooley been on probation or parole at the time of his arrest, Heartwell said, he would have been eligible for jail time.
As it turned out, Dooley did receive a prison sentence for his offense.
"On the eve of the sentencing hearing, we found out he had been arrested in federal court while awaiting trial on our case," Heartwell said. "That gave him a high enough score that he did receive a prison sentence. . . . But we found that out at the 11th hour."
If officials had not found out about the additional charge, Dooley might not be in prison now, Heartwell said. "Obviously, he's a career drug dealer. Anyone would tell you that man deserves to be in jail."
For a variety of reasons, the new guidelines have come under attack in recent interviews with some Roanoke-area prosecutors and defense attorneys.
Most lawyers said the guidelines are unfair in certain cases.
But worse yet, they said, the guidelines take away from individualized sentencing, an important component of the criminal justice system that tailors a sentence to a particular case.
Bedford County Commonwealth's Attorney Jim Updike said his office will ignore the guidelines in arguing sentences. "We're going to argue for punishments that we feel meet the facts of the case."
Updike said he is philosophically opposed to the guidelines for a number of reasons.
"The use of guidelines in the courtroom dehumanizes the trial process," he said.
Probation officers compute the median sentence for defendants based on a number of factors in their background, with each factor receiving a certain number of points, he said.
"You begin adding numbers and debating whether a person should get points for this or that when the case should focus on the aggravating and mitigating circumstances of the case itself," he said.
"We're talking about human lives here, not mathematical computations."
\ `Cookbook formulas'
Roanoke public defender Ray Leven said he, too, opposes the guidelines on principle.
"I don't like the idea of a third party outside the case presenting an argument to the court . . . an outside source stepping into what should be a very individualized event.
"The sentencing of a defendant is supposed to be a very individualized thing. A sentence is supposed to fit the crime and the defendant," Leven said.
"The person sitting in that seat has the right to expect the judge to listen to all sides and make a decision based on all the facts," Leven said. "To have cookbook formulas flies in the face of what our criminal justice system's all about."
Roanoke Commonwealth's Attorney Donald Caldwell said he does not support the guidelines, and prosecutors in his office are not arguing the guidelines when asking for sentences for defendants.
"We are arguing what a crime is worth based upon the individual facts of the crime itself and the person who committed the crime."
Sentencing guidelines do not take into account intangible factors such as whether a defendant admits his guilt, whether he shows remorse, whether he appears truly sorry for what he did as opposed to simply mouthing the words, or whether he has tried to make restitution for his crime.
"Often, simply looking across the courtroom gives you a better idea for sentencing," Caldwell said. "You can see a person and tell reasonably well what their motivations are."
Caldwell and Updike both said they did not think it was unfair for criminals in different parts of the state to get different punishments for similar crimes.
"It may be that certain crimes are viewed more seriously in some areas of the state than others," Caldwell said. "When the issue of punishment is argued, I know of no commonwealth's attorney that argues outside the permissible range of punishment."
By having a range of punishment set in the law for each crime, "the state is recognizing that either punishment could be appropriate under the circumstances," he said.
Caldwell said he thinks the ranges for punishment for most crimes in Virginia are out of sync, and that the state legislature "would be well-served to revise the punishment schemes under the Virginia Code."
It's easy to understand why people are confused about sentencing when grand larceny and second-degree murder both carry maximum sentences of 20 years in prison.
"That is a fault of our General Assembly in not recognizing that offenses bear no correlation to each other," he said.
\ `They nail you'
In some cases, prosecutors and defense attorneys said, the guidelines call for sentences that are either too high or too low for specific crimes.
"It all depends on the case," said Tom Blaylock, the former Roanoke County commonwealth's attorney and now a defense lawyer. "There are some cases where the guidelines actually help the defendant. But there are other cases where they do an extreme disservice to the defendant."
If someone who is charged with a crime is under any legal restraint at the time - on probation, parole, bond, or even awaiting trial for a traffic charge - "they nail you," Blaylock said. "They add a lot of extra time to you that you wouldn't have gotten in the past."
When someone has a clean record, that person gets less time than he would have before - even probation when he would have gotten time to serve before, he said.
Prosecutors agreed that the guidelines do not provide enough punishment for drug cases or sex crimes - especially if the defendant has a clean record.
Last month, a Roanoke County jury convicted the former pastor of a Southeast Roanoke church of fondling an 8-year-old girl who was a member of his congregation.
The jury sentenced Philip Randall Thomas, 58, of Cleveland Avenue, to 20 years in prison for one count of aggravated sexual battery and one count of taking indecent liberties with a child younger than 14.
Together, the crimes carried a maximum penalty of 25 years in prison.
Had Thomas pleaded guilty rather than innocent, however, he would have been eligible only for probation under the guidelines.
Roanoke County Commonwealth's Attorney Skip Burkart declined to comment on the Thomas case because the judge has not yet imposed the jury's sentence.
But, Burkart said, in general, the premise of considering prior criminal history and pending criminal offenses "doesn't make sense on sex crimes. . . . The guidelines don't take into account crimes against the person. If you're a victim, what difference does it make to you how many priors [previous convictions] the person has?"
But, Blaylock said, in situations like the Thomas case, the defendant is put in a difficult position.
"As a defense attorney, when a client comes in here, the first thing you have to think is about pleading not guilty. Now, the first thing you have to think is, `What are the guidelines going to do to my client if he's found guilty?'
"And then you think, `Hell, if this person pleads guilty, he could get probation. . . . That could change you wanting to plead not guilty into guilty."
Thomas' attorney, Pat Doherty, said he is not for or against the guidelines because "you can't over-inform a court. It simply gives the court statistics to show how other judges have ruled in similar cases."
Doherty said he uses the guidelines like any other tool. "If it helps me, I'll argue it. If it's not in my favor, I'll point out why it should not be applied in my case."
Burkart said that, unlike Updike and Caldwell, he also will argue the guidelines if they help him.
"I believe that in some property crimes we've seen, the guidelines have resulted in stiffer sentences in Roanoke County. I haven't had a murder or a rape to be affected by the guidelines.
"I still think I should recommend what is right. If the guidelines fall within it, I'll argue that," Burkart said.
by CNB