Month: December 2014

Sentencing

When is a Utah criminal sentence excessive?

While it can and does happen it is rare for a criminal defendant in Utah to receive the maximum sentence for a crime.

Many crimes have the potential to carry lengthy sentences, but defendants routinely receive smaller sentences as a result of plea bargains and judicial discretion and equity.

Felony :  A felony is a major crime which can be punished with imprisonment and/or a fine. There are four categories of felonies.

            Capital Offense: Aggravated murder.

            First Degree: Murder, rape, child kidnapping, aggravated burglary, aggravated robbery or arson, and possession with intent to distribute controlled substances near a school.

             Second Degree: Manslaughter, robbery, residential burglary, kidnapping, perjury, auto theft, forgery of checks $5,000 or more, theft of property $5,000 or more, forcible sexual abuse, and intentional child abuse.

              Third Degree: Burglary of non-dwelling, theft more than $1,000 but less than $5,000, aggravated assault, forgery of checks more than $1,000 but under $5,000, third DUI in 10 years, joyriding (for more than 24 hours), possession with intent to distribute marijuana, and possession of other controlled substances, and false or forged prescriptions.

Degree Possible Prison Term Possible Fine
Capital Life in prison, life in prison without parole, or death  
First Degree Five years to life in prison Up to $10,000
Second Degree One to 15 years in prison Up to $10,000
Third Degree Zero to five years in prison Up to $5,000

See Utah Code §76-3-203 and §76-3-301

Misdemeanors:  A misdemeanor is an offense lower than a felony which can be punished with a county jail term of up to one year and/or a fine. Many city and county ordinances and some state laws are misdemeanors. There are three categories of misdemeanors.

  • Class A:Negligent homicide, DUI with injury, theft, assault on a police officer, criminal mischief, and possession of marijuana (more than one ounce, less than 16 ounces).
  • Class B:Assault, resisting arrest, DUI, reckless driving, possession of marijuana under one ounce, possession of drug paraphernalia, shoplifting (under $300), trespass of a dwelling, public nuisance, concealed weapon, and many traffic offenses.
  • Class C:Public intoxication, no valid license, and driving on a suspended license.
Class Possible Jail Term Possible Fine
Class A Up to one year in jail Up to $2,500
Class B Up to six months in jail Up to $1,000
Class C Up to 90 days in jail Up to $750

See Utah Code §76-3-204 and §76-3-301

Infraction:  An infraction is a minor offense punishable by a fine only, up to $750. Examples include city traffic violations and some disorderly conduct offenses.

When multiple crimes are involved, it is possible for sentences to run at the same time (concurrently) or after each other (consecutively.) This means that it is possible for a defendant to spend a total of five years in prison for 3 five-year convictions, or a total of 15 years in prison for the same convictions.

The judge determines the sentence of a person convicted of a crime using the Utah Sentence and Release Guidelines. These are published as Appendix D of the Utah Court Rules Annotated and available on the Utah Sentencing Commission’s website (sentencing.state.ut.us).

Aggravating factors

Things that can make the punishment more severe, include but not limited to:

  • whether the victim suffered substantial bodily injury;
  • whether the offense was extremely cruel or depraved;
  • whether the offender was in a position of authority over the victim;
  • whether the victim was unusually vulnerable.

A penalty can also be enhanced if:

  • the person committed the crime with two or more other people;
  • the person used a dangerous weapon on or near a school;
  • the person committed the crime in the presence of a child;
  • the person is determined to have committed a hate crime;
  • the person is determined to be a habitual offender;
  • the offense was committed while in prison.

Mitigating factors

Things that can make the punishment less severe, including:

  • whether the offender was exceptionally cooperative with law enforcement;
  • is a good candidate for treatment;
  • has developmental disabilities.

A trial court’s sentence can be reversed on appeal if a defendant shows that the trial court judge failed to consider all legally relevant factors in imposing a sentence or if the sentence is “clearly excessive.”  It should be noted that it is difficult to prove that a sentence is “clearly excessive” because this means that no reasonable person would have adopted the view of the trial court.

The law office of Stevens & Gailey handles criminal cases, including appeals, throughout Utah. If you or a loved one is under investigation or has been charged with a crime,contact us immediately for your free consultation.

Gun Rights for a Convicted Felon

In Utah, if you are convicted of a felony, either a state or federal felony charge, you lose certain rights going forward including the right to own firearms. One should know that the felony gun ownership laws in Utah are very harsh. What will happen to your firearms in the event you are convicted of a felony?

Can you sell them?

Can you trade the firearms?

Can you transfer the firearms to a family member?

Currently the law in Utah and the federal law state a convicted felon cannot be in possession of a gun. The law doesn’t necessarily require felons turn over their weapons upon the filing of felony charges against them. Nor does the law expressly prohibit a felon from selling a gun rather than handing them over to law enforcement.

Nonetheless, local prosecutors and the U.S. Attorney’s Office have requested Judges order felons to turn over their weapons as a part of their probation or pre trial release. Additionally, individuals charged with a felony often have their firearms confiscated at the time of the arrest, even if the felony charges were non violent and/or did not involve any weapons. Defendants in cases all over the country have sought court orders allowing them to transfer their weapons or sell them to third parties and courts have issued conflicting opinions on the matter. However, the United Supreme Court has decided to resolve the issue by taking up the case of Henderson v. United States, U.S. Supreme Court, No. 13-1487.

 Henderson v. United States

Tony Henderson was a former United States Border patrol agent who was convicted of distributing marijuana. As a result of his conviction, he lost the right to possess a firearm. Following his case, Mr. Henderson sought to transfer ownership of his weapons to family members. He owned a considerable amount of firearms, 19 total firearms ranging from rifles and shotguns to handguns and related accessories. Mr. Henderson filed a motion with the circuit court asking the judge to permit him the opportunity to sell his guns or transfer ownership to his wife. The judge denied his motion. Mr. Henderson appealed and the 11th Circuit Court of Appeals also denied his request. Mr. Henderson appealed to the U.S. Supreme Court who agreed to hear the case which case as quite a shock to many in the legal community. The case will be deciding in the upcoming term of the Supreme Court and many expect the court to find in favor of Mr. Henderson.

Felony Charges in Utah

Stevens & Gailey has dealt with numerous felony charges in Utah in which the prosecutor’s office sought to keep firearms of those convicted and or sought orders requiring defendants to hand over all their firearms.  Many police departments take these weapons and destroy them or sell them keeping the proceeds.  In our opinion this practice needs to stop.  We are hoping the Supreme Court in this Henderson case sets a clear precedent allowing felons to sell their weapons to provide for themselves and family members as opposed to confiscating them for their own benefit.  Feel free to contact one of our attorneys today with additional questions and concerns regarding Utah gun rights.

Plea in Abeyance; Good or Bad?

Plea in Abeyance; Good or Bad?

If you are anything like I was going through school, you and most human beings, as a whole, have a tendency to procrastinate or put things off to another day.   If we don’t like the idea of doing the work we find an excuse as why it should be done later.  If the garage needs cleaning, I’ll get to it this weekend, or maybe next weekend, or in the Spring. With that in mind, the criminal defense world also has found a way to put off the consequences of a bad choice to a later day.

Utah lawmakers have provided such an out.  It is called the “Plea in Abeyance.”  Simply put: 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!  Meaning it does not go on your record and you do not report it to employees.  What a deal.

Pursuant to Utah Code Sec. 77-2a-2 and Rule 4-704 of the Code of Judicial Administration the court and clerk are given power to hold a defendant’s conviction in abeyance.  Those charged with offenses, including felonies, can take advantage of this law, and keep their record clean.

What’s the 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.

Plea in Abeyance; Good or Bad?

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. Clients 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.

Please note 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. The Drivers License Division takes actions against commercial drivers licenses in moving violation 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.

Contact our office today, to set up a free consultation with one of our attorneys.

Plea in Abeyance; Good or Bad?