Year: 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?

Is Custody of Your Children Possible if You Have a Criminal Record?

Is Custody of Your Children Possible if You Have a Criminal Record?

A criminal record can have drawbacks when it comes to matters like finding a job or being approved for a loan — but could your rights as a parent also be affected?  Can you be awarded child custody in Utah if you are convicted of a crime?

To determine custody a judge has one ultimate goal in mind: What is in the best interest of the child? The courts will try and select the custody plan most likely in the childs best interest which means asking difficult questions about each parent.  Are the parents willing and able to work together and cooperate toward the child’s best interests?  Do the parents both have the financial means to provide necessities like food, clothing, and shelter? Does either parent have a criminal record?

If the answer is yes?  Does that mean you automatically lose all chance of obtaining custody?  NO.However, it does mean it may be more difficult to be successful.  Just how difficult depends on the specific facts and circumstances surrounding the crime you were convicted of.

Some of the specific factors the courts must consider when making custody decisions are outlined inU.C.A. Sec. 76-3-10.  Under this statute, the courts may rule in favor of sole custody if certain factors which might endanger the child are present — including “domestic violence in the home or in the presence of the child.”

What counts as domestic violence?  By Utah definitions, domestic violence means “any criminal offense involving violence or physical harm or threat of violence or physical harm… when committed by one cohabitant against another,” with “cohabitant” meaning a spouse, relative, or housemate.  In accordance with U.C.A. Section 77-36-1(4), domestic violence can include:

  • Assault (Simple or Aggravated)
  • Child Abuse
  • Harassment
  • Homicide
  • Kidnapping
  • Sex Crimes
  • Stalking
  • Robbery and Burglary

Pursuant to U.C.A Section 30-3-10.10 “The court shall consider evidence of domestic violence, if presented.”  So you need to be prepared to provide to the Judge answers to questions like: what sort of evidence, if any, exists against you?  Were you actually convicted, or just accused?  If you were convicted, how long ago did the crime take place?

Depending on the answers to these and more questions, and the evidence you have to support them, the Judge may be more or less inclined to believe you could pose a threat to the safety and best interests of your child.

Thus it is important to work with an experienced attorney who can represent you in court.  To schedule a free legal consultation, call us today.

What is the Law in Utah for Driving and Cell Phones?

On May 13, 2014, Utah amendments to the Distracted Driving law will take effect.

The new changes place restrictions on the use of a “handheld wireless communication device” while driving a car.  A handheld wireless communication device includes a cell phone, ipod, tablet, laptop, smart phone, kindle, nook, or “any substanitally similar communication device that is readily removable from the vehicle and is used to write, send, or read text or data through manual input.”

Here’s a list of some things you cannot do with your phone/device while driving a car:

write, send, or read a written communication, including:

a text message

an instant message

an e-mail

dial a phone number

access the internet

view or record video

enter data

However, while driving your car you can still do the following:

use the handheld communication device for voice communication

use the handheld communication device for GPS navigation

use during a medical emergency

use when reporting a safety hazard

use when reporting criminal activity

use hands-free or voice operated technology

use a system that is physically or electronically integrated into the motor vehicle

If you’re found guilty of violating this law it’s a class C misdemeanor with a maximum fine of $100.00.  But, if your violation of this law results in injury to someone else or if you have a prior conviction within three years it’s a class B misdemeanor.  See Utah Code Ann. 41-6a-1716.

Here’s a few more things that are defined as careless driving:  searching for an item in the vehicle; or attending to personal hygiene or grooming.  See Utah Code Ann. 41-6a-1714, et seq.

While I am an attorney who spends a great deal of time on the roads and on the phone, I think this law will create more safety onour roads and I support it.   If you have specific questions or concerns about Utah’s distracted driving law, please give us a call at our office at 801-436-5757

 

How to Divide Retirement in a Divorce

How to Divide Retirement in a Divorce

The Supreme Court of Utah in June, 2014, specifically addressed the question of “how to properly determine the amount of the employee spouse’s monthly benefit subject to equitable distribution.” See Johnson v. Johnson (2014 UT 21). Divorce lawyer in utah

To clarify a bit,  In a divorce, if you or your soon to be ex-spouse has retirement, the marital portion of that retirement may be divided as part of the marital estate.  That means that any retirement you earned while married is considered marital property and can be subject to being split. Attorneys in ogden utah

In some cases a person does not know what the monthly benefit from his/her retirement will be until the date of retirement.  Which date could be years away. Attorneys in ogden utahAttorneys in salt lake city

This raises a few questions, most importantly how much of the monthly benefit will be awarded to the nonemployee spouse, but also what is the “marital portion” of this retirement benefit, and to calculate that we need to know the time of the marriage and the amount of the benefit. Divorce attorneys in utah

In previous cases the Supreme Court has used the time rule formula to determine the percentage of the retirement that the nonemployee spouse will receive based upon the length or duration of the marriage. Attorneys in ogden utah

How to Divide Retirement in a Divorce

To determine the percentage you divide the number of years (or months) employed and earning toward pension during the marriage, by the number of years (or months) of total service (employment) in which the pension was accruing. Divorce utah right to know

Example: Let’s say you were married for 7 years, and worked for 10 years, and during all of this time you were accruing a pension. Then the percentage would be:

84 months / 120 months = 0.70 or 70%

But you would be wise to ask 70% of what amount? And will the amount include any INCREASES to the monthly benefit that happen after the divorce?

The Supreme Court provided an answer to this question.  The court stated that a Context Specific Approach was required to answer this question or in other words a case by case basis.  The Court went on further to explain that in determining the monthly benefit amount courts should consider the followoing:

  • The extent to which the property was acquired during the marriage.
  • The ultimate source of the property.
  • How the employee spouse’s career intersected with the marriage.
  • The extent to which the marriage contributed to the employee spouse’s pay grade at retirement.

In other words, the monthly benefit amount could be the amount at the time of divorce OR the amount at the time of retirement, including any or all increases to the benefit, depending upon the circumstances of your case.

It is important to remember that if you are negotiating an agreement with retirement division that requires a future percentage and monthly benefit amount, you should consider the above factors and stipulate to the benefit amount that will be used in any calculations.  This may be a number, or this may include a way to determine that number in the future after retirement.

Why does this matter?

Using the example above, if the monthly benefit amount is determined at the time of divorce and your pay grade allows you a $100 monthly benefit upon retirement, then the amount the nonemployee spouse will receive is:

$100 x 70% = $70 per month

On the other hand, if the monthly benefit amount is determined at the time of retirement and there have been increases which increase your pay grade to a $200 monthly benefit, then the amount the nonemployee spouse will receive is:

$200 x 70% = $140 per month

These calculations can be tricky and confusing, but it is so important to consider in the division of the marital assets and debts.  If you have questions about the division of retirement in your case, please schedule a free consultation with one of our attorneys with Stevens & Gailey, P.C.

How to Divide Retirement in a Divorce