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

Whether a Commonwealth's Attorney must affirmatively agree to a deferred disposition under § 19.2-298.02 when the prosecutor does not participate in a case.

Plain-English summary

Senator Surovell asked whether a trial court may enter a deferred disposition when the Commonwealth's Attorney is absent or silent. He also asked whether a letter saying the Commonwealth did not object to such dispositions in specified misdemeanor cases would satisfy the statute.

The AG concluded that § 19.2-298.02 requires "the agreement of the defendant and the Commonwealth." Silence cannot be treated as prosecutorial acquiescence. The Commonwealth's Attorney must affirmatively communicate agreement. That communication may occur in person before the court or through other acceptable means in specified types of cases or individual cases. The opinion does not specifically say that a "does not object" letter suffices.

If the Commonwealth's Attorney agrees to the disposition but the parties do not agree on its terms and conditions, the statute allows the court to impose those terms and conditions.

What this means for you

If you are a prosecutor

The opinion requires an affirmative communication of agreement before a court uses this deferred-disposition provision. It permits communication by means other than an in-person appearance, but does not prescribe the contents of a standing letter.

If you are defense counsel or a defendant

The court cannot infer the Commonwealth's agreement from a prosecutor's absence or failure to object. Both parties must agree to the deferred disposition itself. The court may set terms and conditions when the parties have not agreed on them.

Common questions

Does a prosecutor have to appear in person?
No. The AG says the statute contains no express appearance requirement and allows other acceptable means of communicating agreement.

Does silence count as agreement?
No. The AG says the Commonwealth's Attorney must affirmatively communicate agreement.

Did the AG approve a blanket letter saying the Commonwealth does not object?
No specific form of letter is approved in the conclusion. The AG says other acceptable means may be used in specified types of cases or individual cases, but still requires affirmative agreement.

Background and statutory framework

Section 19.2-298.02 allows a trial court, with the defendant's and Commonwealth's agreement, to defer proceedings or a final order and continue the case for final disposition. The statute allows conviction on the original charge, conviction on an alternative charge, or dismissal. The AG read "agreement" according to its ordinary meaning as an affirmative manifestation of assent, observing that silence generally is not acceptance under contract-law principles.

Citations and references

• Va. Code § 19.2-298.02 (deferred disposition by agreement)
• Marrero-Garcia v. Irizarry, 33 F.3d 117 (1st Cir. 1994) (cited for silence and acceptance)

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