A defendant who “truthfully provide[d] all information and evidence concerning his offense” immediately prior to his sentencing hearing complied with the “safety valve” provision of Code § 18.2-248(C), which requires disclosure “not later than the time of the sentencing hearing” in order to avoid a mandatory sentence.
The phrase “not later than the time of the sentencing hearing” means prior to the commencement of the sentencing hearing; a disclosure is timely if made by the time of the commencement of a sentencing hearing. Numerous federal jurisdictions that take this approach show that it is not “legally unworkable” as the Commonwealth contends. And a defendant enters this type of last minute disclosure at his own risk: The trial court is within its discretion to disbelieve a self-serving disclosure, and to consider the last-ditch nature of the effort or previous untruths into that calculus.
Here, however, the trial court refused to consideration the defendant’s last-minute motion for relief as per se untimely. While timing may weigh into a trial court’s merits analysis, it may not bar a motion on that basis when the disclosure was made not later than the commencement of the sentencing hearing.
Reversed and remanded for consideration on the merits.