If the Commonwealth's Attorney does not show up or take a position in a Virginia criminal case, can a judge enter a deferred disposition under § 19.2-298.02 anyway? Or does silence count as agreement?

Subject

A Commonwealth's Attorney must affirmatively communicate agreement to a deferred disposition made pursuant to § 19.2-298.02. This communication may occur in person before the court. The Commonwealth's Attorney may also communicate agreement through other acceptable means.

Plain-English summary

Senator Scott Surovell asked the AG whether a judge can enter a "deferred disposition" under Va. Code § 19.2-298.02 when the Commonwealth's Attorney is not actively involved in the case. A deferred disposition is a tool that lets the trial court hold a criminal case open on conditions and ultimately convict on the original charge, convict on a lesser charge, or dismiss the case entirely. The catch is that the statute requires "agreement of the defendant and the Commonwealth."

The senator's underlying concern: many misdemeanor calendars (petit larceny, marijuana possession, trespassing, drunk in public) move with little or no Commonwealth's Attorney participation. Could the judge just treat the prosecutor's absence as acquiescence?

No. The Attorney General concluded that "agreement" means an affirmative manifestation of assent. Silence does not count as agreement. The Commonwealth's Attorney must say yes. But that yes does not have to be spoken in open court. A standing letter telling the court that the Commonwealth does not object to deferred dispositions in specified misdemeanor categories satisfies the statute, as do other acceptable means of communication in individual cases.

What this means for you

For Commonwealth's Attorneys

The opinion holds that a deferred disposition under § 19.2-298.02 requires the Commonwealth's Attorney to affirmatively communicate agreement, and that this communication may be made in person or by other acceptable means, including a standing letter stating the Commonwealth does not object to deferred dispositions in specified misdemeanor categories. It holds that an absent prosecutor's silence does not authorize the disposition.

For criminal defense attorneys

The opinion holds that a court cannot infer the Commonwealth's agreement from the prosecutor's absence or inaction; the agreement must be affirmatively communicated, in person or through an acceptable written means such as a standing letter for a category of cases.

For defendants

The opinion holds that a deferred disposition under § 19.2-298.02 cannot be entered on the judge's authority alone: it requires the agreement of both the defendant and the Commonwealth, and the prosecutor's agreement must be affirmative rather than implied from absence.

For judges and clerks

The opinion holds that the statute requires an affirmative "yes" from the Commonwealth's Attorney before a deferred disposition may be entered, communicated in person or in a written communication on file; silence on a calendar the prosecutor does not staff is not agreement. It adds that where the parties do not agree on the terms and conditions, § 19.2-298.02(A) authorizes the court to impose them.

Common questions

What is a "deferred disposition" under § 19.2-298.02?
A statutory mechanism that lets a Virginia trial court, with the agreement of both the defendant and the Commonwealth, hold a criminal case open on conditions and ultimately either convict on the original charge, convict on an alternative charge, or dismiss the case.

Can the Commonwealth's Attorney waive the agreement requirement by not showing up?
No. The Attorney General said silence is not enough. The Commonwealth must affirmatively agree.

Does the prosecutor have to be physically present?
Not necessarily. The opinion says the agreement "may occur in person before the court," but it can also be communicated by other acceptable means, including a written communication.

Can the Commonwealth's Attorney issue a blanket letter covering many cases?
Yes. The opinion accepts that the consent can be given for a category of cases, for example by a letter saying the Commonwealth does not object to deferred dispositions in specified misdemeanor charges, as well as in individual cases.

What happens if the parties don't agree on conditions?
Section 19.2-298.02(A) lets the court impose conditions if there is no agreement on terms, so long as the threshold requirement of agreement to the deferred disposition itself is satisfied.

Why did the AG go to contract law?
To explain why "agreement" must be affirmative. He cited Marrero-Garcia v. Irizarry, 33 F.3d 117 (1st Cir. 1994), for the basic point that under contract law, silence is generally not acceptance of an offer.

Background and statutory framework

Section 19.2-298.02 is part of Virginia's criminal procedure code. The statute allows the trial court, after any plea or trial and with or without a finding of guilt, to defer entry of a final order "with the agreement of the defendant and the Commonwealth." Final disposition options include conviction of the original charge, conviction of an alternative charge, or dismissal.

The Attorney General's analysis is a straightforward exercise of statutory construction. The statute uses the word "agreement." Under both ordinary usage and contract-law usage, agreement requires an affirmative manifestation of assent. So a judge cannot infer prosecutorial agreement from absence or inaction.

This opinion is part of a broader picture in which many Commonwealth's Attorneys in Virginia have either declined to prosecute, or do not staff, certain categories of misdemeanors (notably simple possession of marijuana after 2021 reforms). The opinion's practical effect is that without an affirmative consent on file, a court cannot use § 19.2-298.02 to dismiss those cases. The opinion expressly invites prosecutors to communicate by letter or other means.

Citations

• Va. Code § 2.2-505 (AG advisory opinions)
• Va. Code § 19.2-298.02 (deferred disposition with agreement of defendant and Commonwealth)
• Tilton v. Commonwealth, 196 Va. 774 (1955)
• Hines v. Commonwealth, 59 Va. App. 567 (2012)
• Kozmina v. Commonwealth, 281 Va. 347 (2011)
• Marrero-Garcia v. Irizarry, 33 F.3d 117 (1st Cir. 1994)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2021/21-019-Surovell-issued.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

COMMONWEALTH of VIRGINIA

Office of the Attorney General

Mark R. Herring
Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

July 30, 2021

The Honorable Scott A. Surovell
Member, Senate of Virginia
Post Office Box 289
Mount Vernon, Virginia 22121

Dear Senator Surovell:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether a judge can enter a disposition under § 19.2-298.02 of the Code of Virginia where the Commonwealth's Attorney is not involved in the prosecution. Further, you ask if the lack of participation by the Commonwealth's Attorney in a particular case can be viewed as acquiescence and acceptance to a disposition under § 19.2-298.02. Finally, you ask would the condition of an agreement under § 19.2-298.02 be satisfied if a Commonwealth's Attorney provided a letter to the court indicating that the Commonwealth did not object to any disposition entered pursuant to § 19.2-298.02 in specified misdemeanor cases (e.g., petit larceny, marijuana possession, trespassing, drunk in public).

Applicable Law and Discussion

In general, § 19.2-298.02 provides statutory authority for a trial court to enter a deferred disposition in a criminal case "with the agreement of the defendant and the Commonwealth." An "elementary rule of statutory construction [is] that every provision in or part of a statute shall be given effect if possible." "When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute. Additionally, the plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction." In reviewing the unambiguous language of § 19.2-298.02, I note that there is no explicit requirement that a Commonwealth's Attorney appear in person in a given case, nor is there a specified level of involvement required for there to be a deferred disposition. The statute, however, clearly requires at a minimum that there be "agreement" by the Commonwealth's Attorney; and, in my opinion, silence cannot be taken in this context as acquiescence by the Commonwealth's Attorney.

Section 19.2-298.02(A) provides as follows:

A trial court presiding in a criminal case may, with the agreement of the defendant and the Commonwealth, after any plea or trial, with or without a determination, finding, or pronouncement of guilt, and notwithstanding the entry of a conviction order, upon consideration of the facts and circumstances of the case, including (i) mitigating factors relating to the defendant or the offense, (ii) the request of the victim, or (iii) any other appropriate factors, defer proceedings, defer entry of a conviction order, if none, or defer entry of a final order, and continue the case for final disposition, on such reasonable terms and conditions as may be agreed upon by the parties and placed on the record, or if there is no agreement, as may be imposed by the court. Final disposition may include (a) conviction of the original charge, (b) conviction of an alternative charge, or (c) dismissal of the proceedings.

In most circumstances, the term "agreement" signifies an affirmative manifestation of assent. For example, under commonly accepted principles of contract law, silence generally is not sufficient to communicate acceptance of an offer. See, e.g., Marrero-Garcia v. Irizarry, 33 F.3d 117 (1st Cir. 1994).

Conclusion

For the foregoing reasons, it is my opinion that, for purposes of a deferred disposition made pursuant to § 19.2-298.02, a Commonwealth's Attorney must, at a minimum, affirmatively communicate his or her agreement to the deferred disposition. This communication may occur in person before the court. The Commonwealth's Attorney may also communicate agreement to deferred disposition through other acceptable means of communication in specified types of cases or in individual cases.

If the Commonwealth's Attorney communicates agreement to a deferred disposition without agreement with the defendant as to the terms and conditions, the terms and conditions shall be as imposed by the court. See Va. Code Ann. § 19.2-298.02(A).

With kind regards, I am,

Sincerely yours,

Mark R. Herring
Attorney General