The condensed story for Hernandez is that he was charged with feloniously assaulting a police officer in violation of Va. Code § 18.2-57(C). The lower court held that the court did not have the authority to defer disposition (even though such a result might be appropriate), as the defendant was not charged with a crime that had been specifically designated by the Virginia legislature as eligible for such deferment. Crimes that the courts have explicit statutory authority to defer disposition of include, but are not limited to, spousal rape (§ 18.2-61), first offender drug possession (§ 18.2-251), and first offender misdemeanor property offense (§ 19.2-303.2).
On January 13, 2011, the Virginia Supreme Court overruled the lower court in Hernandez v. Commonwealth, 281 Va. 222, 707 S.E.2d 273 (2011), holding that courts have inherent authority to defer disposition of a case after the evidence is presented and a plea is entered. The lower court may now withhold a finding of guilty for a period of time and require a defendant to complete certain requirements. Successful completion of the requirements results in a dismissed charge. This means something critical to defendants. Instead of a conviction, you may now get a second chance under Hernandez. Defendants should also take note that Hernandez squarely places the onus on them. So don’t blow it.
Because the Virginia Supreme Court did not provide specific instructions to the lower courts about how to implement Hernandez, requirements vary from jurisdiction to jurisdiction. For example, in Henrico, the courts will not consider a Hernandez plea unless the defendant has a clean record and pleads guilty. In addition, the Henrico courts’ status quo conditions include: 24 hours of community service, 6 hours in jail to be served immediately following trial, regular monitoring by the Community Corrections Program (“CCP”), and a requirement to be of good behavior and keep the peace for a designated period of time. The monitoring by CCP includes regular drug and alcohol testing, even if the charge is not drug or alcohol related. Testing may be administered the day of trial. A dirty drug test on a Hernandez plea in Henrico will result in a show cause, a conviction, and jail time. Hernandez gives defendants a second chance, but if they do not comply with the conditions, the penalties ordered by the court may be more severe than had the defendant pled guilty and been convicted on his trial date. The responsibility to meet the court ordered conditions falls on the shoulders of the defendant. While there is no promise that complying with the conditions set forth by the court will result in an absolute dismissal of the charge(s), I have yet to see a case in which the court did not dismiss the charge upon successful completion of the conditions.
Opponents presented legislation in January 2012 to gut Hernandez, as they did in January 2011. To date, the attack on Hernandez has not been successful. For those fearful opponents, the judiciary has been implementing Hernandez with great caution. As for the public at large, while CCP, I concede, may be overwhelmed at times with the influx of defendants in need of monitoring, the Commonwealth undoubtedly saves monies that would be required to fund jails in the short term. And in the long run, (I admit this point is a little disconcerting but realistic), Hernandez could have a major impact on sentencing guidelines for the once lucky defendant who is convicted of another charge in the future, thereby reducing his sentence and the monies required to jail him for a subsequent offense.
