Last month’s attorney question introduced a discussion of alternatives to going to trial. The options vary a lot from state to state, and our affiliated attorneys were very generous, weighing in with numerous responses. We continue that question this month. If you missed the first installment, read it here, in addition to the commentary from our affiliated attorneys that follows. Here is what we asked:
Does your state offer the option of deferred prosecution or deferred judgment/sentencing?
How does it work? Does the person plead guilty or are charges filed only if they fail to meet the agreement’s conditions? Does the person report to a probation officer? Is the person’s record cleared after an agreed-upon time without any further incidents (of specific concern to Network members, are gun rights restored)?
To what offenses are deferral options limited? If a Network member turned to you for representation after defensive display of a firearm in self defense, under what conditions might you consider seeking deferral?
Randy L. Robinson
Attorney at Law
P O Box 682, Augusta, ME 04332
207-653-6749
Maine does indeed offer a deferred disposition process. The defendant pleads guilty, usually to all the charges, but the court does not find him or her guilty. That part is delayed. At the end of the process, during which the defendant will be on bail and have to meet certain conditions, the case will either be dismissed or the guilty plea withdrawn and the charge or charges reduced. In rare cases, the defendant will receive a certain sentence on the charge or charges to which he entered a guilty plea.
The highest level of crime does not give the option of a deferred disposition, so a self-defense shooter charged with murder would not be able to get that deal. However, a person charged with manslaughter might be able to. Obviously, if the person shot does not die, the odds of the charge, if any, being low enough to get a deferred are much higher.
Most likely, the person taking a deferred disposition could keep his or her guns, but not be able to acquire any new ones during the period of deferral, based on having been charged with a felony level offense. Conditions could include no use or possession of dangerous weapons, other than as part of a job.
If the person gets through the deferred disposition period, he or she gets the good outcome and would normally not be a felon, there would be no conviction for the original crime, only for the new, lesser charge, if any. Obviously, if the option did not exist to get a dismissal or a plea to a non-felony, I would advise a client to go to trial unless I thought a loss was likely. I might have them plead to a non-felony charge and not bother with a deferred. And remember, you can get the bad outcome without actually committing a crime. Then the conviction sets in, the plea cannot be withdrawn, and “life” as a felon begins.
Benjamin M. Blatt
PO Box 221, South Bend, IN 46624
574-360-4039
https://www.facebook.com/hoosierattorney/
In Indiana, there’s a general state-wide statutory and guidance framework allowing for prosecution deferral for some, but not all cases (notably excluding serious vehicular offenses such as OWI/DUI, any form of homicide, and anything above a very low felony), but each county prosecutor has absolute discretion as to whether to implement and to what extent to do so, any deferral program, within the state guidelines.
What that translates to practically is that someone would be first charged with a Level 5 or 6 felony or A or B misdemeanor (battery, assault by brandishing, drug possession, resisting arrest etc.), being offenses which might be eligible for some form of deferral but which trigger or may trigger automatic firearm rights losses due to the charged offense or the terms of any deferral agreement. That’s the loss or potential loss of firearm rights. Then the person has to be eligible by offense type, criminal history, and facts of the charged offense for any deferral program offered in the county where the charges are brought. That will vary wildly, but for this we’ll assume there is a very liberal deferral program in this hypothetical Indiana county. If the prosecutor approves the defendant’s entry into the deferral program, a suspended guilty plea, as negotiated, is entered. At that point the program participant needs to keep their nose clean for 6-12 months, typically.
If, at the end of that time, they have completed all program requirements, which may include online courses and community services and kept in all necessary contact with the program supervising personnel assigned to them (and that would typically be for the defense attorney to handle in terms of reporting address or employment changes, program benchmarks achieved, costs, fines and any restitution timely paid, etc.), at the end of the program period, the case is dismissed with prejudice, any rights suspended by way of the charge or program participation are restored, including firearm rights, and the defendant starts the clock to being able to petition for expungement of the charge and the arrest.
In Michigan, things are a bit more complex. Overall, if you are between 18 and 26 years old (as of 10/2021), the offenses you can expect to be deferred, if you qualify, are similar to those found in Indiana, with exclusions for homicide offenses and OWI/DUI, due to the Holmes Youthful Trainee Act. For older defendants, various Michigan statutory provisions allow for deferred guilty pleas for less serious and/or first time acts.
If you are approved for deferral, as with Indiana, a deferred guilty plea is entered. When the deferral is completed, the offense is dismissed, any lost or suspended rights are restored, and the offense becomes eligible for expungement per the normal process for a dismissed charge. The substantial mechanical difference between the two states, for the most part, is that in Indiana, a program participant reports to someone designated in the prosecutor’s office, and the charged case merely remains open until the participant completes the program and has the case dismissed or fails the program and the guilty plea is entered.
In Michigan, participation in a deferred guilty plea program means being subject to probation and probation reporting and potentially even jail time, as the participant is effectively pleading guilty and serving their sentence, but with the potential outcome of a clean record at the end if they complete the program successfully. That means, for example, that while an Indiana deferment of more than 12 months would be unusual, and that program participant would be at worse dealing with significant community service and restitution obligations, a HYTA program participant might need to complete 36 months of jail and probation and pay restitution before successfully having their charged offense dismissed, depending on the offense and case specific circumstances, though that would be of course on the far end of the deferred guilty plea outcome.
Howard Snader
Senior Attorney, Snader Law Group
702 E. Osborn Rd. Ste. 150, Phoenix, AZ 85014
602-957-3300
Does your state offer the option of deferred prosecution or deferred judgment/sentencing?
For most cases involving firearms, NO. If just alleging the display of a firearm, then maybe diversion of some form. But if convicted of almost all gun-related crimes enhanced with an allegation “dangerousness,” prison is mandatory. Probation is not possible. Losing at trial normally equals prison. Prosecutors use the allegations to force pleas.
How does it work? Does the person plead guilty or are charges filed only if they fail to meet the agreement’s conditions? Does the person report to a probation officer? Is the person’s record cleared after an agreed-up time without any further incidents (of specific concern to Network members, are gun rights restored)?
If diversion is offered, it is normally a condition of a guilty plea with sentencing deferred. Complete the program, case dismissed. Fail the program, the plea is enforced, the sentence enforced and the conviction is permanent with the sentencing.
To what offenses are deferral options limited? If a Network member turned to you for representation after defensive display of a firearm in self defense, under what conditions might you consider seeking deferral?
Regarding deferral options: Limited normally to matters with no priors, no physical harm, no discharge, and even then, rarely granted. In terms of the self-defense argument, it would likely never be offered. If the self-defense claim is strong enough, the prosecutor may not file charges. If not strong enough, then charges are filed. Once filed, the client would either need to admit the use of the weapon in self defense; that leads to trial related outcomes. Or there is no self defense; he owns the conduct, and MAYBE gets a diversion outcome.
Curtis C. Alfrey
Alfrey & Associates, PC
600 Seventeenth Street, Suite 2800 S., Denver, CO 80202
720-971-1832
https://alfreylaw.com
Deferred prosecution and deferred judgment are permitted in Colorado courts.
A deferred prosecution is along the lines of a “diversion.” On a deferred prosecution the individual may be required to take a class or perform some other act and remain law-abiding for a period of time. After such time, the case/prosecution is dismissed without having ever entered a guilty plea.
Two things must occur for an individual to be convicted of a criminal offense. First, there must be a “finding of guilt.” That can happen either by a jury finding an individual guilty after trial or an individual entering a guilty plea. Second, the judge enters Judgment of Conviction.
In a deferred judgment, the second part (entry of Judgement of Conviction) does not occur at the outset, and hopefully never. The individual enters a guilty plea. However the judge does not enter Judgment of Conviction. The judge “holds on” to the guilty plea. The judge orders that the individual take a class or perform some other act and remain law-abiding for a period of time. After such time if the individual has been successful, the judge allows the individual to “withdraw” the guilty that was previously tendered and the case is then dismissed. However, if during the deferral period, the individual does not do what he was ordered to do or does something he was ordered not to do, then the judge simply enters Judgment of Conviction and the individual faces sentencing. It is a strong motivator to be compliant and one of the few ways in which the accused individual is wholly in control of getting his case dismissed.
Generally, deferred prosecution and deferred judgment cases are supervised. That means, generally there is a probation officer that checks to make sure the individual has done the things he was ordered to do and has not done the things he was ordered not to do. This is not always the case as some of these deferred or deferral periods will be unsupervised. On a case by case basis, the individual may or may not be allowed to possess firearms during the deferred or deferral period.
In either situation, once the period has successfully ended and the case has been dismissed the individual has a right to have his record sealed as it pertains to this case. While law-enforcement will always be able to see the history of the case, it will be hidden from the view of the general public and legally “it never happened.” In this situation, gun rights are unaffected moving forward.
On the whole, a deferred prosecution or deferred judgment is a negotiated offer that should be strongly considered by the individual. No matter what the circumstance, it is an opportunity to “earn your way out” of the charges.
As with every case, there are no guaranteed offers. Your attorney must work diligently to negotiate any dismissal or resolution, including one so advantageous as a deferred prosecution or deferred judgment.
Adam Pollack, B.C.S.
Law Office of Adam L. Pollack, P.A.
933 Lee Road, Suite 350, Orlando, FL 32810
407-834-5297
https://orl-law.com
In response to your email requesting information about deferred prosecution, I can offer the following information for Florida.
Does your state offer the option of deferred prosecution or deferred judgment/sentencing?
In Florida, it is possible to have a deferred prosecution agreement or a pre trial diversion agreement. Different circuits within the state have variations on the name of the agreement.
How does it work? Does the person plead guilty or are charges filed only if they fail to meet the agreement’s conditions? Does the person report to a probation officer? Is the person’s record cleared after an agreed-up time without any further incidents (of specific concern to Network members, are gun rights restored)?
Diversion is essentially a special type of probation. A person would be expected to check in monthly with a diversion officer (think probation officer) and they would be required to certify that they have been abiding by the terms of the agreement. The office will run background checks and check for any interaction with law enforcement. Assuming the person on diversion completes the contract, their case will be dismissed by the prosecutor’s office. Typically, the case is closed and no further prosecutorial action will be taken. However, I have seen some agreements that allow for a case to be reopened if the person is rearrested within a certain period of time. This typically does not occur even if a person is subsequently arrested, but it is a possibility.
Once the agreement is completed, the person who was on the diversion track can apply to have their case sealed or expunged. They are essentially the same legal result. The only difference is that an expungement is a physical destruction of the record and a sealing is not. Neither record is available for the general public’s review.
A person who has completed diversion will not need to have their gun rights restored because they were not taken away. However, if they have a concealed carry permit, then they will need to apply to have their status adjusted to allow for them to get their license back if it had been suspended.
To what offenses are deferral options limited? If a Network member turned to you for representation after defensive display of a firearm in self defense, under what conditions might you consider seeking deferral?
Deferred prosecution is completely controlled by the prosecutor and victim. Typically, both the prosecutor and the victim must consent to this being offered to a person accused of a crime. Further, some prosecutors have an internal policy not to offer diversion on some cases. Typically, one would not expect diversion to be offered on any offense that is a Second Degree Felony, First Degree Felony or a felony involving a police officer as a named victim.
In Florida, people have a broad legal right to self defense and may resort to deadly force to defend themselves, others on their property. This is known as the “Stand Your Ground” law. Seeking a deferral of prosecution depends upon the facts of the specific case that I am dealing with and is always something that can be considered. However, there is no firm and set criteria as to when to seek a deferred prosecution. I typically do my investigation and let the facts that I uncover lead to the result rather than have the result being sought influence the investigation. I do this because if I am too focused on obtaining the result the client wants, I might miss critical details that could influence the case. Suffice it to say, I am always trying to obtain the best possible result for my clients whether a gun was involved or not.
Terry A. Nelson
Nelson & Lawless, Law Offices
43537 Ridge Park Dr, Temecula, CA 92590
714-960-7584
In California, the process is called Deferred Entry of Judgment [DEJ]. Theoretically, it is available as to any criminal charge. Theory and practice are two different things.
Defendant, through his attorney, will have to seek and reach a deal/plea bargain with the prosecutor, which includes a DEJ offer. If the court will accept and agree to the deal [usually, but not guaranteed], the court will take the defendant’s plea of guilty on the record to the agreed charge, but would not sentence the defendant at that time. Most defendants want to resist “pleading guilty,” but that is the requirement to get the “deal.”
A sentencing hearing date will be set at some date in the future. How far out depends upon the agreement with the prosecutor and judge, and that depends upon the nature and severity of the crime charged, and generally upon a “clean” prior record, or at least not a serious rap sheet. The time can be from several months up to a year, or more. DEJ is intended to provide a “second chance” to deserving non violent defendants to prove they are “rehabilitated.”
Upon the defendant successfully completing all the terms of whatever informal or formal probation are agreed to in the deal, and imposed by the court, then at the sentencing hearing the court would allow defendant to withdraw his guilty plea and then dismiss the charges on motion of the prosecutor. That leaves the defendant with a “clean” record that reflects arrest but no conviction, because he was not sentenced on the charges.
If the defendant failed to comply with all the terms of probation, then the court could and would sentence the defendant to the terms of the original guilty plea deal.
If the criminal charge carries a firearms prohibition, that prohibition would be part of the terms of court ordered probation until the final sentencing hearing, where the firearms prohibition would [generally] be lifted, as there has been no “conviction” to justify continuing the prohibition. DOJ would not have a conviction shown, so no loss of firearms rights imposed as a result of this case.
As to when DEJ is offered by the prosecutor, it is a case by case basis, negotiated with defendant’s counsel, with no assurance of it being offered. No promises should ever be made to defendants seeking “reassurance” of outcome. When DEJ is sought for a member charged with use of weapon or deadly force, and claiming self defense, getting a DEJ is going to be a possible but difficult outcome to achieve, requiring a showing almost of “innocence” of intent or fault in the charges. It might be granted in “brandishing” or non violence cases, maybe even in perpetrator’s injury outcomes, but not likely in perpetrator’s death cases. Many serious self defenses cases will require going to trial and praying for a not guilty verdict after a vigorous and diligent defense presentation. Trial is always the last resort in these cases. Defendants should be educated that a “certain” but unpleasant deal is almost always better than an uncertain trial with prison outcome if convicted.
Members must be thoroughly educated and properly trained on lawful use of self defense force rules, personal safety risk assessment rules, firearms storage, transportation and safe handling rules, necessary marksmanship and training standards, and the expensive psychological, social, personal, moral and financial consequences of violating them. Members in California must keep in mind that most of California’s legal systems are very anti-gun and anti-2AM. You can rate the local area by how “liberal” the county sheriff is in issuing CCWs. Whether their firearm is in the nightstand drawer, a closet, behind the door, or being carried CCW, members need to understand that “this ain’t the old West” now, nor a TV show or movie. Members involved in a self-defense incident in California are almost certain to be taken into custody, at least temporarily, pending law enforcement investigation of the incident. Members’ need for an attorney begins immediately upon the end of the “incident” and before discussing what happened to law enforcement or anyone else, including the 911 operator.
Stay safe, avoid danger or conflict.
Carl Jensen
The Law Office of Carl B Jensen Jr PLLC
410 Central Ave Ste 506B, Great Falls, MT 59401
406-899-6696
https://www.carlbjensenjr.com
Does your state offer the option of deferred prosecution or deferred judgment/sentencing?
The State of Montana does have the option for both a deferred prosecution agreement (DPA) and a deferred imposition of sentence.
How does it work? Does the person plead guilty or are charges filed only if they fail to meet the agreement’s conditions? Does the person report to a probation officer? Is the person’s record cleared after an agreed-up time without any further incidents (of specific concern to Network members, are gun rights restored)?
A deferred prosecution agreement is an agreement between the defendant and the prosecutor. The defendant agrees to abide by certain conditions and in exchange the charges are dismissed. If the defendant fails to follow through on what they promised in the agreement, the charges can be refiled and the prosecution starts anew. A deferred sentence occurs when an individual pleads guilty to the charge, and is put on probation and if they successful complete probation without violations, the charge will be dismissed at the end of that time. However if the defendant violates probation they can face up to the maximum sentence at a revocation hearing.
To what offenses are deferral options limited? If a Network member turned to you for representation after defensive display of a firearm in self defense, under what conditions might you consider seeking deferral?
This is fairly complicated to answer, the simple answer is that if the facts warrant it, any case could end up with the charges reduced with a deferred sentence or a deferred prosecution agreement. There are limits on these types of agreements, but there are often alternatives that allow these tools to be used.
__________
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month for more from our affiliated attorneys on this interesting topic of discussion.
To read more of this month's journal, please click here.