Help for People Whose Lawyers Did Not Tell Them About New Virginia Criminal Laws

In 2020 and 2021, the Virginia legislature passed a series of new laws which made it easier to defend certain cases.  In many instances, attorneys have failed to tell their clients about these laws, resulting in many convictions where defendants did not know about the changes.  The failure to advise regarding these new laws may be unconstitutional and may allow you to reopen your case if certain conditions are met.

Virginia Code § 8.01-654 allows a convicted defendant to file a petition for habeas corpus, which allows them to request that a court vacate their conviction.  It is not part of the criminal case but is instead a civil petition challenging the conviction. In these petitions, the burden is on the Petitioner to prove his conviction was illegally imposed, such as a result of a court’s error or because they received “ineffective assistance” from their attorney.

A petition for habeas corpus must be filed either within two years of the date of the sentencing, or one year from the date that the appellate process had concluded, whichever is later.  It applies to both guilty pleas and verdicts after trial.

The petition must be filed in the court which entered the original conviction.  If there is a credible allegation that an attorney failed to adequately advise the defendant about new laws, or to make use of these laws prior to a guilty plea, trial, or sentencing, then an evidentiary hearing may be held to assess the likely impact of the failure to properly advise the defendant.

Important new laws which have been recently passed include, but are not limited to:

  1. Code Section 19.2-392.12: Allows a court to seal most misdemeanor convictions after 7 years, and felony convictions after 10 years, where the offense of conviction is no greater than a class 5 felony, which carries a sentencing range of no more than 10 years imprisonment. If you were convicted of a felony greater than a class 5 felony, and your attorney failed to advise you of this change and/or negotiate a plea to a class 5 felony, you may have a potential claim for habeas relief.
  2. Code Section 19.2-303.6: Allows a court to defer and dismiss a case where there is a diagnosis or autism or intellectual disability, and those disabilities were substantially related to the offense conduct. If you have such a disability and your attorney failed to present this defense to you, the prosecution, or the court, you may have a potential claim for habeas relief.

If you have a Virginia conviction which occurred within the relevant timeframes listed above and, believe that your attorney failed to apprise you of, or make use of, the newly passed laws, an attorney may be able to help you overturn your conviction.

Our criminal defense lawyers in Virginia have helped dozens of people successfully resolve serious criminal cases in federal and state courts throughout the Commonwealth. Page Pate, Jess Johnson, and Cary Citronberg are licensed Virginia criminal defense lawyers and have decades of experience in serious criminal cases. Contact us in Alexandria VA or Washington DC to see if we can help.

Raising an Autism or Intellectual Disorder Defense in a Virginia Criminal Case

Virginia recently passed a new law providing a powerful defense for certain people charged with serious crimes. Under Virginia Code 19.2-303.6, a person who has been diagnosed with autism spectrum disorder or another intellectual disability can petition the court defer their case, put them on probation, and eventually dismiss their charges if the person shows they are eligible and that the alleged crime was “caused by or had a direct and substantial relationship to the person’s disorder or disability.”

Who qualifies for this new defense under Virginia law?

Under Code Section 19.2-303.6, only people charged with certain offenses can petition the court for a deferred disposition. A person must show that they have been diagnosed with autism spectrum disorder by a psychiatrist or a clinical psychologist, or an “intellectual disability.” Virginia law defines an “intellectual disability” as “a disability, originating before the age of 18 years, characterized concurrently by (i) significant subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning, administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social, and practical adaptive skills.”

Some people are ineligible for deferred disposition based on the crime they are charged with. Defendants charged with aggravated murder or an “act of violence,” such as kidnapping, assault, robbery, sexual assault, or arson. A person is not ineligible for this defense simply because they have a prior conviction.

The court can defer a defendant’s case if the defendant has pleaded guilty or if they have pleaded not guilty, but there facts what “would justify a finding of guilt.” The court must then find by “clear and convincing evidence” that the offense was caused by or was related to the defendant’s autism or intellectual disability. If the defendant’s case is deferred, they usually have to complete a term of probation that includes several conditions such as no internet use, no being around minors, and other restrictions.

If a person successfully completes the terms of their deferred disposition and probation, the court may enter an order dismissing the charges against him. If the defendant violates the terms of his deferred disposition, the court can revoke his probation, enter a conviction, and impose a sentence.

Can a criminal defense lawyer help?

Yes, our criminal defense lawyers in Virginia can help someone who is charged with a serious crime in Virginia that may related to an autism condition or intellectual disorder under the law. We have helped dozens of people successfully resolve serious criminal cases in federal and state courts throughout the Commonwealth. Page Pate, Jess Johnson, and Cary Citronberg are licensed Virginia criminal defense lawyers and have decades of experience in serious criminal cases. Contact us in Alexandria VA or Washington DC.

A New Law For Sealing Felony Criminal Records in Virginia

Earlier this year, Virginia passed a new law that will allow people with certain criminal convictions to have their criminal records expunged and sealed. The new law applies to almost all misdemeanor convictions and certain felony convictions, including convictions for serious felony offenses such as child pornography, assault and battery, and voluntary manslaughter.

The new law will go into effect in Virginia on July 1, 2025, but it will likely be available in many counties earlier than that. Once an individual’s conviction is sealed, court records relating to the conviction are no longer accessible by the public, and the records generally will not appear in online databases or background checks. Sealed records will still be accessible in background checks for firearm purchases, when hiring employees for police departments and other government agencies, and under other limited circumstances.

The new law creates a process for courts to automatically seal most misdemeanor convictions, as well as acquittals and dismissals of felony charges. If an individual has a criminal conviction for an offense that is not eligible for automatic sealing, they can still petition the court to seal their records if their offense of conviction is a misdemeanor (except for a DUI or domestic violence) or a Class 5 or Class 6 Felony.

Am I eligible to get my Virginia felony conviction sealed?

The new law covers a long list of felony and misdemeanor offenses that can be expunged and sealed. Below is a list of some, but not all, of the offenses which are eligible for expungement and sealing:

  • Conspiracy to Commit a Felony
  • Attempt to Commit a Non-capital Felony or Misdemeanor
  • Criminal Solicitation (except solicitation to commit murder)
  • Voluntary and Involuntary Manslaughter
  • Assault and Battery
  • Abduction and Kidnapping
  • Stalking
  • Street Gang Participation and Recruiting for Street Gangs
  • Violation of a Court Order
  • Receiving Stolen Property
  • Grand Larceny
  • Receipt of Stolen Firearm
  • Computer Fraud
  • Obstruction of Justice
  • Giving a False Identity to Law Enforcement
  • Distribution of Marijuana (if less than 5 pounds)
  • Maintaining a “Drug House”
  • Forgery
  • Identity Theft and Credit Card Fraud
  • Carnal Knowledge of a Child Between 13 and 15 Years Old
  • Sexual battery
  • Child Abuse and Child Neglect
  • Prostitution and Commercial Sex Trafficking
  • Possession of Child Pornography
  • Solicitation of a Minor

How do I get my Virginia felony conviction sealed?

If you have a criminal conviction for certain misdemeanors or a Class 5 or Class 6 Felony, and are not eligible for automatic sealing, you can file a petition asking the court to seal your records. However, there are several conditions you must meet before you can petition the court.

First, you cannot file a petition to have a felony conviction sealed until 10 years have passed since the conviction or your release from prison, whichever date is later. If you have a misdemeanor conviction, you must wait 7 years. You must also have a clean criminal record during that time period to remain eligible to have your records sealed. Traffic offenses do not disqualify you. Critically, you may still be eligible to have your conviction sealed even if you still owe court fees in connection with your case.

Once a petition has been filed, the judge will consider whether your conviction should be sealed. Among other things, the judge will consider your history and background, including any community service or acts of charity, as well as the nature of your offense and your conduct while you were serving your sentence. In some cases, a petitioner may want to show the judge how having a conviction is making it harder for them to find or keep a job, secure housing, or otherwise be a productive member of society.

In some cases, such as serious sex offenses or violent crimes, you will likely need to provide more information to the court to persuade a judge to seal your conviction. In sex offense cases, for example, expert testimony from a counselor or psychologist can make a huge difference if the expert can testify that you completed all of your required treatment and pose a low risk for re-offending. Expert testimony and other scientific evidence can also show you are a low risk for re-offending in non-sex offense cases.

An individual in Virginia can get up to two convictions sealed only. They must also meet certain conditions before getting a second conviction sealed, such as not having any convictions for an offense that carries a maximum sentence of life in prison.

Talk to an experienced Virginia criminal defense lawyer.

An experienced criminal defense lawyer can help you file a detailed petition and prepare a strategy that maximizes your chances of success. The experienced attorneys at Pate, Johnson & Church have a track record of success in helping individuals get their convictions sealed, including individuals with convictions for sex offenses and other serious crimes.

Our criminal defense lawyers in Virginia have helped dozens of people successfully resolve serious criminal cases in federal and state courts throughout the Commonwealth. Page Pate, Jess Johnson, and Cary Citronberg are licensed Virginia criminal defense lawyers and have decades of experience in serious criminal cases. Contact us in Alexandria VA or Washington DC to see how someone can qualify to have their felony criminal record sealed, and we will let you know if we can help.

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