Wednesday, October 30, 2013

A Plea in Abeyance - The Pros and Cons

Human beings, as a whole, have a tendency to procrastinate or put things off to another day those tasks that we find unpleasant.  If the garage needs cleaning, I'll get to it this weekend, or maybe next weekend, or in the Spring.  With that in mind, what could be more unpleasant than being convicted of a criminal offense, going to jail, and having an offense on your record that you would have to notify current or future employers about.  Even if you committed the crime, wouldn't it be nice to put off the consequence of that bad choice?

In order to motivate those just entering the life of crime to change their minds and become better citizens, Utah lawmakers have provided such an out.  It is called the "Plea in Abeyance."  This is how it works: a person guilty of a crime admits that they did it by entering a plea of no contest or guilty, but instead of being sentenced within a few weeks, the sentencing is put off for six months to a year or longer.  During this period of time, the conviction for the crime is stayed.  What's more, if you behave yourself during that period of time and fly beneath the radar, at the end of the agreed upon time, you are allowed to withdraw, or take back your plea, as if you never entered it, and all charges are dismissed!  Sweet!

The Utah Code of Judicial Administration, section 4-704, makes it so.  In that rule, court clerks are given authority to accept a plea in abeyance for traffic charges, for example, and prosecutors are given the ability to negotiate pleas in abeyance for other offenses.  Those charged with offenses, including felonies, can take advantage of this law, and keep their record clean.

What's the catch you might ask?  Well, the government is all about helping people reform, and so there is a catch.  Although some plea in abeyances only require that you don't commit new offenses, most require more effort on the part of the person making the deal.  For example, in a traffic charge related to a plea in abeyance, the person who entered a plea needs to take and complete traffic school to earn the dismissal at the end of the abeyance period.  Those charged with drug offenses may have to attend a year and a half or more of a drug court, or participate in other counseling.  If it is a domestic violence charge, anger management classes may be required.  There may even be a community service component to the agreement.  The State is not collecting a fine, but you can be sure they will collect a "plea in abeyance fee" for the administrative costs of the plea in abeyance, that just happens to be exactly what the fine would have been had it been a complete conviction.  As you can see, there are strings attached, and all kinds of conditions can be negotiated that need to be completed in order to get that much desired dismissal.

Another catch is that if a person does not fully comply with the terms of the plea in abeyance agreement, then sentencing occurs, the conviction is final, and there is no right to a trial.  Prosecutors like this part because it makes for an easy conviction.  If a person flees the State, no problem, the conviction and sentencing can occur in their absence, and a warrant would be issued.  Jail time can be ordered, and the judge has all the options he or she would have had without the plea in abeyance agreement.

So what are the downsides to a plea in abeyance.  First, most people are overly confident that they can earn the dismissal and do all that is required.  I have seen client who are offered to plead guilty and be sentenced on a misdemeanor, or take a plea in abeyance on a felony and earn a dismissal.  They opt for the plea in abeyance, fail to do their part, and end up with a felony conviction.  Those addicted to drugs or self control issues should weigh carefully their options, and not be overly confident in their ability to jump through the required hoops.  Sometimes it is better to take a lesser conviction than risk a bigger conviction down the line.  For example, many courts require a plea to all of the filed charges in order to qualify for the plea in abeyance, that sometimes results in convictions to multiple felonies later, instead of a single misdemeanor conviction today.

It should also be noted that not all crimes are eligible for a plea in abeyance.  For example, you cannot get a plea in abeyance for a DUI.  It has been legislatively excluded.  If you drink and drive, no dismissal for you.

Other things to consider are that, although the court does not consider a plea in abeyance as a conviction, sometimes other agencies do.  For example, lets say an 18 year old young man gets a plea in abeyance for a marijuana charge.  If the court reports that plea to the State Drivers License Division, that person's drivers license will be suspended, even without being sentenced or having a complete conviction.  Also, Drivers License Division takes actions against commercial drivers licenses in some driving offense plea in abeyance situations, and will suspend the commercial drivers license, even if the charges are later dismissed.  Employers are likewise starting to ignore the subtle difference between a plea and a conviction, and on job applications they may ask, have you ever entered into a plea in abeyance in addition to questions about criminal history.

Because of the various risks and benefits to a plea in abeyance, it is a good idea to consult with a lawyer before jumping into such an arrangement.  In fact, it is always a good idea to have a lawyer on board when facing criminal charges.  First, a lawyer can help negotiate a plea in abeyance when it otherwise may not have been offered.  Second, a lawyer can help negotiate the terms so that a person isn't set up for failure.  Third, a lawyer can steer a client away from a deal that may be too good to be true if the consequences trying to be avoided, like license suspension, will happen with a plea in abeyance, and can help negotiate a better deal to obtain the desired outcome.  Finally, a lawyer can follow up with the court to make sure charges get dismissed.

I have assisted hundreds
clients in obtaining plea in abeyance resolutions.  I have also helped clients get the promised dismissals when the court and prosecution haven't followed up on the deal.  If you are faced with a charge, and want to know if a plea in abeyance is possible, or if it will be good for you, give me a call.

Monday, May 20, 2013

How to Change Your Felony Conviction to a Misdemeanor - 402 Motions

A felony conviction can change your life. Consequences of a felony conviction can include:

1.  Losing the right to hold public;
2.  Losing the right to vote;
3.  Losing the right to serve on a jury;
4.  Losing the ability to have a firearm;
5.  Losing the ability to hold certain licenses and certificates;
6.  Losing job opportunities;
7.  Embarrassment, loss of reputation, and more.

When someone has been convicted of a felony, there is hope of having that felony reduced to a misdemeanor.  In the State of Utah, a felony conviction can be reduced to a misdemeanor either at the time of sentencing, or at the successful completion of probation.  The rules for obtaining this kind of reduction are found in Utah Code Annotated section 76-3-402.  A motion to reduce the offense level of a conviction is commonly referred to as a "402 motion."

In a 402 motion, a person can ask a court to reduce the offense level of a conviction by one level.  For example, someone convicted of a third degree felony could ask to have the conviction reduced to a class A misdemeanor.  With the agreement of the prosecutor, a conviction can be reduced by two levels (i.e. from a 2nd degree felony to a class A misdemeanor.)  Misdemeanor offense levels can also be reduced using this law (i.e. a class A misdemeanor can be reduced to a class B misdemeanor.)

A 402 offense level reduction has many benefits.  In addition to the benefits gained from removing an embarrassing felony from one's record, it can also pave the way for expungement qualification, to remove the conviction completely.  The more serious the conviction level, the more difficult it is to expunge a conviction, and the longer a person has to wait to qualify.  One or two offense level reductions can speed up the expungement process by years.

I have been successful in assisting clients in reducing the offense levels to their convictions using 402 motions, and in helping them expunge their convictions.  If you have questions about this process, give me a call.

Thursday, May 9, 2013

Public Defender v. Private Attorney?

Should I hire a private lawyer or just go with a public defender?  What's the difference between the two?  What advantage would a private attorney give me over a public defender?   These are important questions to ask yourself when charged with a crime.  Naturally you would want the best representation possible.  But is it worth paying thousands of dollars to a private attorney when a public defender is free?

To begin with, let's define the two.  In Utah, counties and cities open a bidding process to fill the position of Public Defender.  Bids come in from various attorneys with different levels of experience and expertise.  The Public Defender contract is often given to the lowest bidder, sometimes resulting in an attorney with less experience as compared to the higher bidders.  Once the public defender is selected he or she is inundated with cases, appointed by the court, for defendants who qualify for free representation.  The case load is always very large, and very limited of time is given to each case because of the volume of cases.

Public defenders work with the city and county prosecutors to resolve each case as quickly as possible.  Because of the huge demand on the public defenders, defendants do not always get the best representation or defense in their cases.  I have heard many defendants upset and frustrated that their public defender has no time to return phone calls, refuse to prepare a suppression  motion, do a preliminary hearing, or take their case to trial, because they don' have the time.

A Private Attorney is a lawyer who is hired by a defendant to represent them in court.  Private attorney's have much smaller case loads, thus they have more time to work on a case, interview witnesses, investigate and meet with the client, even return phone calls.

Hiring a private attorney allows you to shop around, get referrals, research which lawyer has experience in criminal law, and which one is a general attorney, knowing a little bit about a lot of different areas.  Most private attorneys will allow you to come into their office for a free initial consultation.  This way, you can find out how experienced the attorney is, his or her feelings about your case, and the fee you would be charged.

The saying "You get what you pay for" is often very true when hiring an attorney.  The more experience, the better the representation and defense.  If you are charged with a crime, give me a call.  You don't want to chance your future with anyone else.



Tuesday, May 7, 2013

When Should a Juvenile be Punished as an Adult?

On April 27, 2013, a bunch of kids were playing soccer in Salt Lake City.  During the game, the referee gave the goal keeper, a 17 year old boy, a warning called a "yellow card."  This ruling by the ref upset the boy, and he punched the 41 year old referee.  The unexpected consequence of the punch was that the referee went into a coma, and a few days later, he died.

The Salt Lake County District Attorney now has the unenviable decision of whether to charge the boy as a man.  Typically, crimes committed by individuals 17 and younger are handled in the juvenile court justice system.  The focus is on reform.  Juveniles are adjudicated, not convicted.  They admit allegations, they don't plead guilty.  They go to detention, not jail or prison.  But sometimes, when a juvenile commits an adult crime, they get treated as an adult.

When I have a juvenile client who is charged with a serious crime, I do all that I can to keep their case in the juvenile justice system.  I once knew a young man who was charged with a serious crime, was tired of the juvenile system and wanted to be tried as an adult.  He thought he would get less time.  Against the advice of his attorney, he had his case moved to the adult court.  He ended up being sent to prison as a teenager.  When I saw the result of his case, I felt it was a foolish tragedy.  Except in the most unusual cases, children should not be treated the same as adults.

If you have a child with juvenile charges, call for a free initial consultation.  435-654-9LAW

Thursday, May 2, 2013

Will Juries Continue to Trust the Police

In almost every jury trial I've been involved in, one of the questions asked during jury selection involves whether the perspective juror would give police officer testimony greater weight and credibility than a civilian witness.  On many occasions, perspective jurors would honestly report that they would trust police officer testimony more due to their extensive training and their sworn duty to uphold the law.  That perspective is beginning to change.

In the wake of the West Valley Police Department scandal, that resulted in over 100 cases being dismissed, Officers being put on leave pending investigation and the entire drug unit being disbanded, and the Utah Highway Patrol scandal involving Officer Lisa Steed falsifying evidence to get convictions, resulting in the review of over 1000 cases, people are beginning to distrust the police.  A recent KSL News poll revealed that after these events, 66% of those polled indicated that they now trust the police less, while 26% said the recent news did not change their opinion, and 3% said that they were not sure if these events effected their perception of police.  The poll also reported that 6% stated that they now trust the police more . . . I wonder who they work for.

The results of this public perception of police poll may have a positive effect on those charged with crimes, who take their cases to trial.  I believe that juries are going to evaluate police investigations and evidence presented by law enforcement more critically than ever, rather than blindly accepting propositions proposed by the prosecution.  In the end, more innocent defendants should be acquitted, and those who are guilty will have received a fair trial.  

Tuesday, April 30, 2013

Not All Bad Deeds Must Be Punished

The headline today proclaimed: "Driver who hit bicyclist likely won't be cited."  The underlying message of the headline was that something horrible happened, and the person who made it happen may go unpunished.  A 50 year old man is in the hospital, and he's not doing well, the article states.

The focus of the article and its title brings attention to a fact of life that is hard for some to accept, that not all bad deeds get punished.  This s a good thing.  There doesn't always have to be punishment from the government for bad things that happen.

In the accident in the article it was night, the bicyclist was wearing dark clothing, and according to the police, the driver who struck the bicyclist tried to avoid hitting him, but by the time she saw him it was too late.  Indeed, it appears that the bicyclist was partially to blame as he tried to cross the street and beat the on coming traffic, but did not make it.  Regardless of whether charges are brought, the driver is likely going to bear personal guilt and self punishment, even if it is not deserved.

The fact that someone was hurt is a tragedy.  I would be an even greater tragedy if public outcry or overly aggressive police officers and prosecutors decided to cite, charge, or prosecute someone for an accident where there was no criminal intent or criminal liability.  Accidents happen, sometimes someone is in the wrong place at the wrong time, but when the dust settles, it is evident that they are not a criminal.  I have had clients who were charged with crimes in these types of circumstances.  When that happens, it is important to have an attorney advocating for the dismissal of charges, to ensure justice is served, and to avoid adding another victim to what was an accident.

Friday, April 26, 2013

What Happens When Police Break the Law?

The headlines lately have brought attention to an age old problem of what to do when police officers behave poorly, or break the law when they are investigating a case.  In West Valley City, Utah, many drug related criminal prosecutions were dismissed because the police misconduct in investigating the crimes resulted in the prosecutors stating "we no longer believe we have sufficient credible evidence with which to obtain a conviction."

When an investigating police officer knowingly, or inadvertently violates the law, it compromises the investigation and the case.  When evidence is gathered illegally, even if it proves that a person is guilty of committing a crime, it cannot be used in court.  This is called the exclusionary rule, and its intent is to motivate police officers to play by the rules, or have their efforts be wasted.

If you are charged with a crime, and believe that the police officers may have broken the rules relating to properly gather evidence, give me a call.  For example, if police search your house or car without a warrant or permission, any evidence gathered is illegal.  Likewise, if you have been arrested and are interviewed without having your Miranda rights read to you, any statement you made was gathered illegally.

When I review a client's case, the first thing I look for is whether the evidence was gathered legally.  If I believe the officers didn't follow the law, I file a Motion to Suppress the illegal evidence.  I have been successful in State and Federal Courts in litigating Suppression Motions, getting evidence thrown out, and having my client's cases dismissed.  Everyone should play by the rules, especially police officers, and when they don't, there are consequences.