Virginia Supreme Court Defines Boundary on Remorse vs. Trial Rights
Commonwealth v. Jackson, Record No. 240843 (Va. Nov. 20, 2025)
The Supreme Court of Virginia released an opinion today, clarifying the fine line between a judge properly considering a defendant’s lack of remorse at sentencing and improperly punishing someone for exercising their constitutional right to plead not guilty.
David Michael Jackson had an extensive criminal history: 20 felony convictions (including 7 for probation violations) and 7 misdemeanor convictions. In 2018, he pleaded guilty to larceny and driving with a revoked license, receiving suspended sentences conditioned on five years of supervised probation. After beginning probation in May 2021, Jackson violated numerous probation conditions: he failed to report for urine screens, tested positive for cocaine, missed appointments with his probation officer, failed to report an arrest, and was eventually removed from a substance-abuse treatment program due to lack of contact. He was subsequently arrested and convicted of additional crimes, including felony hit and run, misdemeanor construction fraud, and misdemeanor reckless driving.
At his probation revocation hearing, Jackson pleaded guilty to violations based on his new criminal convictions but pleaded not guilty to four technical violations (failure to report, non-compliance, positive drug screens, and absconding from supervision). He claimed that he had been in a serious motorcycle crash that had left him bedridden and unable to comply with his probation requirements. The circuit court found him guilty of all violations and sentenced him to two years of active incarceration. During sentencing, the circuit court twice mentioned that Jackson had not accepted responsibility for his actions. Jackson argued this meant the court had improperly punished him for pleading not guilty to the technical violations and appealed to the Court of Appeals of Virginia.
The Court of Appeals agreed with Jackson, holding that the circuit court had “explicitly” linked its sentencing decision to Jackson’s not guilty plea and had therefore improperly punished him for exercising his constitutional right to contest the charges. But the Supreme Court of Virginia disagreed.
First, the Supreme Court found that the “acceptance of responsibility” factor is permissible. The Supreme Court explained that while a sentencing court cannot enhance punishment based on a defendant’s prior not guilty plea, it may properly consider a defendant’s “present tense” failure to accept responsibility or show remorse, so long as this consideration is not explicitly linked to the exercise of constitutional rights. This concept comes from the principle that accepting responsibility is “the first step in rehabilitation.”
Here, the trial court’s statements that Jackson was not accepting responsibility were not explicitly linked to his not-guilty pleas. Rather, the statements reflected the trial court’s assessment, based on the evidence and arguments presented, that Jackson was making excuses for his violations rather than genuinely accepting responsibility. The Court noted that Jackson’s claims of incapacitation from a motorcycle accident were undermined by the fact that he committed multiple new crimes during the period he claimed to be disabled.
The Supreme Court emphasized that failure to accept responsibility means a defendant receives no mitigation of an otherwise appropriate baseline sentence—not that the sentence is enhanced as punishment for pleading not guilty. The Supreme Court concluded that, viewed in context, the trial court’s remarks properly assessed Jackson’s poor rehabilitation potential based on his conduct and attitude during the probation period, which is a legitimate sentencing consideration, and that this consideration did not constitute improper punishment for exercising his right to plead not guilty.