THE HERNANDEZ CASES opinions. In Taylor v. Commonwealth 18 (released in 2011 after Hernandez ), the trial court found the defendant guilty of grand larceny and entered a conviction order. 19 At sentencing, the defendant’s attorney made a motion for a reduction to petit larceny, arguing that his client “assisted law enforcement in an-other matter.” 20 The circuit court judge ruled that the courts do not have such authority. The Court of Appeals agreed, holding that: Virginia courts have no authority to “evaluate the ‘propriety, wisdom, necessity and expediency’ of legislation.” Faithful to this tradition of judicial self-restraint, a Virginia court cannot refuse to convict a guilty defendant merely because it questions the category of offense assigned by the legislature, con-siders the range of statutory punishment too harsh, or believes certain guilty offenders undeserving of a criminal conviction. “Judicial nullifi cation” of a constitutionally valid criminal statute “has happily, no place in our system.” 21 In Taylor, the Court of Appeals distinguished Moreau and Hernandez by pointing out that neither case reached the issue of whether the disposition, after a deferral, could include “ac-quitting a criminal defendant whose guilt was proved beyond a reasonable doubt.” 22 The opinion, written by Judge (now Justice) Arthur Kelsey, reviews the sources of judicial pow-er, namely, the Virginia Constitution, the common law, and statutory authority, and fi nds no basis to support the supposed inherent power to defer and dismiss a criminal case when the evidence leads to a fi nding of guilt beyond a reasonable doubt. 23 No New Light from Starrs The next Supreme Court case, Starrs v. Commonwealth , 24 decided in 2014, was another limited ruling that may have added to the uncertainty about the Court’s position on the ultimate issue of deferrals. In a lengthy opinion, the Supreme Court held that when a judge accepts a guilty plea, it should not be considered as the equivalent of a fi nding of guilt. 25 Until the court enters a conviction order, deferring the fi nal decision on guilt was still within the court’s authority. 26 The Supreme Court cited the Court of Appeals decision in Taylor , but did not overrule it. The Starrs opinion contains some wording that goes well beyond the analysis of when deferral authority ends. First, it says that a trial court, before a conviction order has been en-tered, may defer the case “to consider an outcome other than a felony conviction.” 27 The cases cited in Starrs for that assertion, however, did not relate to defer-and-dismiss or defer-and-re-duce deals. Instead, Starrs cites cases that consider other outcomes only after a factual inquiry, beyond the guilty plea, to establish the elements of the offense, or to determine what level of offense was actually committed. 28 The Supreme Court concluded its opinion by emphasizing that the “‘power to en-force’ does not include the inherent ‘discretion to permanently refuse to do so.’” 29 Thus, despite the tantalizing language about 30 VIRGINIA LAWYER | August 2019 | Vol. 68 | CRIMINAL LAW SECTION considering alternatives to “a felony conviction,” Starrs , like Hernandez , is a narrowly focused opinion. When the ultimate issue was not before the Court, the Justices chose not to add exotic spices to the recipe. More Strong Ingredients from the Court of Appeals In the two most recent cases, the Court of Appeals has affi rmed two trial judges who relied on Taylor to rule that the courts do not have inherent authority to agree to defendants’ requests for defer-and-dismiss or defer-and-reduce arrangements. In Harris v. Commonwealth , 30 the Court of Appeals examined the Starrs decision and its effect on Taylor . The Court of Appeals held that Hernandez and Starrs could not be read to interfere with the separation of powers provided for in the Virginia Constitution. For the Court, Judge Beales concluded that Hernandez and Starrs should not be understood to allow trial courts to free guilty defendants “because it is the executive branch that holds the constitutional power to extend clemency and issue pardons.” 31 In the most recent published appellate case, White v. Commonwealth , 32 issued in 2017, a panel of the Court of Appeals provides a thorough discussion of all of the recent appellate decisions that have considered the issue of de-fer-and-dismiss and defer-and-reduce arrangements. The de-fendant’s attorney could not argue that his client was innocent but asked the court not to “tag this 60-year old man … with a felony at this point.” Writing for the panel in White , Judge Petty wrote that “where the evidence proved guilt beyond a reasonable doubt, the trial court did not have inherent authority to acquit or to convict White of a lesser offense. 33 Neither Taylor , Harris , nor White was taken up for review by the Supreme Court. After reading these three cases, the broth should at last be clear. Someone New Stirs the Cauldron Just when the drama seemed to be concluding, in late 2018 a new character entered the scene and made the cauldron bubble again. Attorney General Mark Herring issued a very short opinion in response to the question “whether, a trial court may, with the concurrence of both the commonwealth’s attorney and the defendant, defer disposition and continue a criminal case for a period of time, and then at the end of that period consider a dismissal of the charge if the defendant has complied with certain prescribed conditions.” 34 The Attorney General answered this question in the affi rmative. Analyzing the AG’s Addition to the Brew Initially, one must observe that the question is carefully worded to distinguish it from the questions considered by the appellate courts. None of the cases we have discussed involved an arrangement agreed to by the commonwealth’s attorney, in addition to the defendant and the trial judge. The question also avoids the issue of a promise of a dismissal, in that it asks only if a trial court may consider a dismissal after the defendant complies with the terms. www.vsb.org