ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, November 2, 1996 TAG: 9611040033
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
MEMO: ***CORRECTION***
Published correction ran on November 5, 1996.
A story in Saturday's paper about two crack dealers who each were
sentenced to five years in prison by Roanoke juries included incorrect
information about their fines. One was fines $1; the other was fined
$1,200.
FOR THE SECOND TIME this year, a Roanoke jury has recommended a five-year sentence and $1 fine, the minimum for a crack cocaine dealer.
Since 1989, when the first Roanoke jury to sentence a crack dealer recommended a maximum punishment of 40 years, city juries established a reputation for being tough on peddlers of the highly addictive drug.
But that hasn't been the case this year.
After convicting Dora A. Swain of possessing at least 23 rocks of crack at her Patton Avenue Northwest home, a Circuit Court jury on Wednesday set her sentence at five years in prison and fined her $1 - the minimum penalty for a crime that carries up to 40 years in prison and a $500,000 fine.
Swain and nightclub manager Billy Fisher - the only two people to face city juries this year on a charge of possession of cocaine with intent to distribute - have both received the minimum sentence.
However, lawyers said it would be premature to speculate that community sentiment about crack may be changing.
"I don't think two cases is enough to build a theory on," said Assistant Public Defender Michelle Derrico, who represented Swain. "But it's certainly interesting."
Regional Drug Prosecutor Dennis Nagel believes that Roanoke juries are still willing to hand down stiff sentences, but that defense lawyers have become more selective in the type of case they take to a jury.
Both Swain and Fisher were middle-aged defendants with no prior criminal records and personal backgrounds that made a jury more sympathetic to them, Nagel said.
After Swain, 45, was convicted, she presented evidence in the trial's sentencing phase that she does volunteer work for charity, is active in her church and cares for a terminally ill relative. That, and the fact that Swain had no prior record, were all factors in the jury's sentence, said Patsy Wingfield, who served on the jury.
"I think we all felt that the 40 years we could have given her would have accomplished no more toward rehabilitation than the five years would," Wingfield said.
The amount of drugs was also a factor. "We weren't talking about $10,000 worth; we were talking about $1,500 worth," she said.
Although hundreds of alleged crack dealers pass through Roanoke Circuit Court each year, only a few plead not guilty, which usually means facing a jury trial at the prosecutor's demand. Most defendants plead guilty and are sentenced by judges, who traditionally have been more lenient than juries in drug cases.
Judges are encouraged to follow state sentencing guidelines, which usually call for less time than the statutory ranges available to juries. For a drug dealer with no prior convictions, the guidelines call for a range of punishment between seven and 16 months.
Judges can suspend portions of a sentence, which they often do in going below the five-year minimum for distribution of cocaine. Derrico had attempted to tell the jury in Swain's case that they were entitled to recommend a suspended sentence, but Judge Richard Pattisall ruled that was not the law.
When Swain is officially sentenced later, Pattisall will have the power to reduce the jury's recommended sentence.
Always rare in drug cases, jury trials have become even more so since 1994. That's when the General Assembly passed a law that created bifurcated trials, in which juries decide on guilt or innocence before a second, sentencing phase in which they can consider additional evidence - including the defendant's prior criminal record.
In the past, defendants could conceal their prior records by asking for a jury trial, but choosing not to testify. While bifurcated trials have eliminated that possibility, there are some cases in which they can benefit the defendant - such as with Swain, who used the sentencing phase to present evidence of her good character.
While Swain's sentence may seem lenient compared with those of a few years ago, Nagel pointed out that dealers who received 20-or 30-year sentences before 1995 were eligible for parole - unlike Swain and Fisher, who must serve at least 85 percent of their sentences. With parole, defendants were considered for release after serving just one-sixth of their terms.
"This could be the equivalent of a 30-year sentence from two years ago," Nagel said of the Swain sentence.
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