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 of 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.
(435) 654-9529


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