In our 14-year history, several Network members have gone through deferred prosecution and after several months, their gun rights were restored and records cleared. Because this option is not uniform from one state to another, we are exploring how deferred prosecution and/or deferred judgment works in the various states so that our members are aware of the disadvantages or advantages of this alternative.
With the goal of helping members better understand how the criminal justice system works, we asked our affiliated attorneys to comment on the following:
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?
Between the faithful help of our long-standing affiliated attorneys who have made this column the popular educational feature that it is, coupled with having recently recruited over 175 new affiliated attorneys who also generously contributed input from their states, we have a lot of great material on this topic. Thus, we will be discussing the question of deferrals and when this kind of an option might be a bad idea and when it may be preferred for several months.
Jerold E. Levine
Attorney At Law
5 Sunrise Plaza, Suite 102, Valley Stream, NY 11580
212-482-8830
https://thegunlawyer.net
New York has several variations of deferred prosecution, and in gun cases almost always they involve interim performance requirements for the defendant, in exchange for reducing a felony to a misdemeanor.
The ordinary situation has the defendant plead guilty to the felony charge(s), but no sentence is imposed so there is no conviction. In the interim period that follows, the defendant performs whatever tasks are required by agreement with the DA; usually community service, treatment program (if applicable), and sometimes interim probation.
Once the requirements are met, the defendant is allowed to withdraw the felony plea, the DA accepts a misdemeanor plea, and the court then sentences the defendant. The sentence may be a fine, post-conviction probation, more community service and/or other conditions.
Since the benefit to the defendant is avoidance of a felony prosecution, usually the misdemeanor outcome is the only thing offered by the DA. The defendant’s record is not cleared, and expungement of misdemeanors in New York is very limited anyway.
A very interesting case presently in my office is a client who was charged with multiple felonies for illegal handgun possession, but the DA handling that case is very devoted to her county’s new alternative prosecution procedures. The defendant pled guilty to both a felony and misdemeanor, but was not sentenced, and at the end of his community service all charges will be dismissed, and his only record will be a record of arrest. This is an extremely unusual outcome for a New York City gun case.
I would pursue deferred prosecution in every case where I thought the defendant might get it. If the defendant is not a career criminal, and the DA does not want to waste time trying to put someone in jail who does not need to be in jail, then I find that DAs are open to making deals. Usually the only real limitation is the office policy of the DA. In some counties, hammering gun defendants is the norm, but not as much in other counties.
If gun rights are at risk from the conviction, rights restoration can occur at the time of sentencing if the judge agrees, but it is unlikely in a weapons case, and the DA will oppose the application. A Certificate of Relief from Disabilities would have to be executed by the judge, but even if relief cannot be gotten at the time of conviction, the defendant can apply for it later. Also, if the gun rights were lost pre-conviction due to our red flag mental health related laws, that restoration process is separate from the ordinary Certificate of Relief Process, and much more difficult.
Michael Whisonant
Jaffe Hanle Whisonant & Knight PC
2320 Arlington Ave S., Birmingham AL 35205
205-930-9800
https://www.rjaffelaw.com/attorneys/michael-w-whisonant-jr-/
My name is Michael Whisonant and I hail from the great State of Alabama. The answer as it relates to my state, is “Yes, but it depends.” There are a variety of charges in varying jurisdictions (federal, state, municipal) within the State of Alabama where he/she could have a viable self-defense claim. Most jurisdictions, but not all jurisdictions in Alabama have a form of a deferred prosecution program.
The difficulty is that each program has different eligibility requirements to enter the program and different conditions which must be met to complete the program. Many of these programs are designed for DUI and substance abuse related charges and not crimes of violence for which self defense would be common. Most, but not all, require a deferred plea. This is for judicial economy purposes so that the case can be removed from a trial docket. What is true of almost all of these programs is that upon successful completion of the obligations of the program the client is not convicted and the case is dismissed.
The question of whether an eligible client should enter the program is always the choice of the client, but my advice depends on the strength of the evidence, the strength of the defense, the exposure of the client (number of years client is facing), and the requirements of the program. Alabama also has a strong stand your ground law with immunity protections which is also considered when making this decision.
Chris T. Rasmussen, Esq.
Rasmussen Law P.C.
520 South Fourth St., Las Vegas, NV 89101
702-384-5563
https://www.rasmussenlaw.com/attorneys
Does your state offer the option of deferred prosecution or deferred judgment/sentencing?
Yes, we have several options in Nevada. We have specialty courts such as Veterans Court which allows for a dismissal. Also, we sometimes have someone plead guilty and stay the adjudication for the client to complete some conditions prior to a dismissal.
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)?
There are all types of various ways to clear the charges. Some require formal probationary period and others where you return to court, usually one year later to receive a dismissal.
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?
We always seek information regarding prior military service. In Las Vegas, Nevada the Clark County District Attorney screens the cases to determine if formal charges should be filed. They are fairly good at deciphering self defense. Self defense as a defense almost always requires the client to immediately contact law enforcement. Too many times, we see people who flee the scene. Self defense really requires prompt reporting to law enforcement. Deferral of prosecution in a case where a client fled the scene and had to be picked up on an arrest warrant are difficult to convince a prosecutor of a straight deferral.
Cole B. Combs
Cole Combs Law Firm PLLC
5600 Bell St., Ste. 105, #298 Amarillo, TX 79109
806-318-8899
https://www.texaslawcole.com
In Texas there are a couple options that vary depending on the district attorney. Some offer what is called pre-trial diversion. This is in the nature of a contract with the DA’s office and usually results in not only an indictment not being filed but also is eligible for expunction. It can be risky though because whether or not the pretrial diversion agreement is violated is often wholly in the discretion of the supervising probation officer with no recourse to a hearing. Most DAs also require waiver of substantive rights such as to a jury trial as part of the agreement. The offenses eligible for pre-trial diversion are also wholly within each individual DA’s discretion, and even the offering of pre-trial diversion of any sort varies widely by county.
For deferred adjudication there is a list of offenses in the Texas Code of Criminal Procedure which are explicitly prohibited from deferral in Art. 42A.102, though mostly the list is offenses such as various types of human trafficking, murder, and sexual offenses. This is only an option after charges are actually filed, whether by information for a misdemeanor or after a felony indictment is obtained.
Deferred for a felony in Texas may be for a term of up to 10 years and is supervised by the community supervision (probation) office of the county where the person resides and because they are under indictment for a felony the entire time forbids the possession of firearms. The successful completion of deferred results in a dismissal without a felony conviction, though part of a deferred plea deal is a plea of guilty on the record, and waiver of a jury for both guilt/innocence and sentencing. Thus the downside is that any violation of the terms and conditions of deferred adjudication is decided only by the court to a preponderance standard, not beyond a reasonable doubt, after which, if the court finds that the violation did occur, the person can be sentenced anywhere within the sentencing range allowed for the underlying offense. Deferred is not eligible for an expunction, but can be eligible for an order of non-disclosure eventually. The rules and eligibility for deferred are fairly uniform statewide, though whether any particular prosecutor will make an offer, of course, varies.
A huge caveat for deferred adjudication is the US Citizenship and Immigration Service (USCIS) considers a guilty plea for deferred the same as a conviction for immigration purposes. So anyone who is considering a deferred plea in Texas who is an immigrant, even a legal permanent resident, should also consult with an immigration attorney.
As to when might deferred adjudication in Texas be a reasonable offer: That is so fact dependent as to be impossible to answer. In many counties in Texas my first inclination would be a jury trial for use or display of a weapon for defensive purposes, assuming the client tells the whole truth (good and bad) during consultation.
Vincent Rivera
Schlagel, Long, Rivera LLC
100 E. Park St, Suite 8, Olathe, KS 66061
913-782-5885
https://www.kansaslegalteam.com/our-team/vincent-rivera/
If you’ve been charged with a crime in Kansas, one possible option is called diversion. Diversion is sometimes referred to by judges and prosecutors as “deferred prosecution,” “immediate intervention,” or “deferred judgment.”
Being on diversion in Kansas may seem similar to being on probation. Either may require you to do things like regularly reporting to a supervising officer, taking random drug tests, completing counseling or other classes, and performing community service. The difference is that probation occurs after conviction, while diversion occurs before conviction. In other words, if you successfully complete diversion, your case is dismissed and you do not have a conviction.
In Kansas, diversion is run exclusively by the prosecutor’s office – the judge plays no role in granting diversion. To start diversion, you must first apply. In your application, you essentially provide a written confession and waive all rights to challenge evidence or assert a defense.
Since diversion is run by each individual prosecutor’s office, according to their own individual guidelines, there is often inconsistency between counties and cities as to who is eligible, what charges are eligible for diversion, and how difficult it will be to complete.
Diversion may help protect your right to own or handle firearms. The two main types of criminal convictions that will lead to a lifetime Federal firearm restriction are felony convictions and domestic violence convictions. One option to avoid these restrictions is diversion. If you are offered and successfully complete diversion on a felony or domestic violence charge, then you do not have a conviction on your record. Thus, you’ve preserved your 2nd Amendment rights.
Should you take a diversion or go to trial? When I discuss that question with a client, they ultimately decide based on two things: 1) the strength of our case (likelihood of winning), and 2) their risk vs. reward tolerance. Many people are unwilling to take the risk of trial, so they choose the “safe bet” of diversion.
In summary, the advantages of diversion are that it gives you potential to have the charges dismissed and it is a relatively “safe bet.”
However, the disadvantages of diversion are that you must admit you did something wrong, thus you’re giving up any claim to legal self defense. Also, you’re “on thin ice” during diversion. You must complete about 12 months of supervision, reporting, drug tests, classes, and community service before you receive your dismissal. Failure to complete any of these requirements can result in diversion being terminated and being convicted of the original charge. Depending on the prosecutor’s office, completing diversion could be relatively easy or it could be a nightmare.
Steven Fairlie
Fairlie & Lippy, P.C.
1501 Lower State Rd., Ste 304, North Wales, PA 19454
215-997-1000
https://fairlielaw.net
Does your state offer the option of deferred prosecution or deferred judgment/sentencing?
Pennsylvania has an Accelerated Rehabilitation Disposition (ARD) program that does not require an admission of guilt nor a plea of guilty. If someone successfully completes the program the charges are dismissed and then have no impact on a person’s right to possess firearms.
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)?
ARD normally involves a period of non-reporting probation. The person can apply to have their record expunged after completion of the program. Gun rights are never forfeited since there is no conviction, so the expungement is not required to restore gun rights (although it can be helpful to prevent misunderstandings).
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?
ARD is only permitted for minor nonviolent misdemeanors. Advice about whether someone qualifies is best determined from all the facts of an individual case as there can be many exceptions to the rules. ARD is generally not available in firearms cases involving defensive use of force, though I have seen ARD given in accidental discharge cases.
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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.
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