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The past two editions of this column focused on alternatives to going to trial. The options vary a lot from state to state, and our affiliated attorneys were very generous, weighing in with many, many responses. We wrap up that question this month. If you missed the previous installments, please browse to https://armedcitizensnetwork.org/our-journal/2022-journals and read the July and August commentaries, in addition to our affiliated attorneys’ final responses to these questions:

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?

Mazi Mazloom
The Mazloom Law Firm, LLC
250 Lawrence St., Marietta, GA 30060
770-590-9837
https://www.mazilaw.com/about

1. Most State of Georgia prosecutors offer diversion programs in some cases and under certain circumstances. Diversion means they are diverting the case from prosecution. Once you complete the terms of the diversion agreement, the case is dismissed and in some cases the arrest is restricted from your record.

2. If you are accepted into the diversion program, you will report to a diversion program coordinator who oversees the progress and ultimately will submit a nolle prosequi, a Latin term which directly translates to “not to wish to prosecute,” once all conditions are met. In Georgia, you do not plead guilty to get into the program. With a successful completion and the entry of a nolle prosequi, the client will avoid being a convicted felon; thus, saving their civil liberties such as right to vote and the right to bear arms.

3. The diversion program is offered on a case-by-case basis. Almost any charge can be considered for diversion depending upon the facts and circumstances leading to the allegations.

Bruce Finlay
Attorney at Law
P. O. Box 3, Shelton, WA 98584
360-432-1778
https://websitesbycook.com/brucefinlay/

In Washington state, there is no deferred prosecution or sentencing for felony crimes. Individual prosecutor’s offices could offer such a thing, but would rarely do so for a felony involving a firearm. Deferred sentences and deferred prosecution are available for gross misdemeanors and misdemeanors in the district and municipal courts, but there is, in reality, virtually no advantage to a deferred sentence and deferred prosecutions are used almost exclusively for DUI offenses, although it would apply to any gross misdemeanor or misdemeanor crime that involves the use of alcohol. A deferred prosecution is only available to those suffering from alcoholism and it would be a very rare situation where one was granted for a crime involving a firearm.

I say that a deferred sentence is in reality virtually worthless because the conviction stays on the person’s record despite the apparent idea that it would come off the record if the person successfully completed his or her sentence. The only way to remove a conviction from a record in Washington is to petition the court to vacate it. Many crimes can be vacated, some cannot. However, under the right circumstances and in the right jurisdiction, an individual county’s prosecutor might see fit to offer an informal deferral, which is an outcome not contemplated by statute. For that offer, a person would need to have no prior record and the crime not be particularly violent or harmful, but I’ve never seen one for a use of firearms case.

 

Jeremy Ramsey
Attorney at Law
7124 Windsor Lk. Pkwy., Ste 14B, Box 12, Loves Park, IL 61111
815-988-4364
http://www.theramseylawfirm.com/attorney_info

The State of Illinois offers a form of delayed prosecution called court supervision. Under the terms of the court supervision, the defendant pleads guilty to a charge and generally pays a fine. The defendant has a term of court supervision where they do not have to report for probation, but during this time they must not be charged with any additional offenses. If the defendant is charged with a new offense, then the delayed prosecution terms of the court supervision are applied to the defendant. This usually involves jail time, an additional fine, and some form of probation.

Most court supervision fines are offered during the plea negotiation process with the state attorney’s office and are generally only applicable for very minor charges, Misdemeanors or less. If there is not a strong defense for the defendant, then this is a beneficial option to choose, rather than going to trial on the matter.

 

Peter E. Brill
Brill Legal Group, P.C.
64 Hilton Ave, Hempstead, NY 11550
888-315-9841
https://www.brill-legal.com

New York does not offer deferred prosecution per se.

We have Adjournments in Contemplation of Dismissal (ACD), which is a type of plea. Stay out of trouble for six months to a year and the case gets dismissed.

We also have conditional pleas, or repleaders, i.e. you plead guilty to one count, do something (counseling, etc.) and then get to plead to a lower charge after successful completion. This is the model used in the problem-solving courts, e.g. drug court or veteran’s court.

These are both options for members who might be referred for self-defense issues, as these approaches can avoid the stress, time, and cost of a trial if successful.

 

Craig R. Johnson
Craig Johnson Law, PLLC
2500 N. University Ave. Suite 100, Provo, UT 84604
801-458-2285
https://craigjohnsonlaw.com/

Does your state offer the option of deferred prosecution or deferred judgment/sentencing?

Yes it does.

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)?

Sometimes before the charges are filed, a “diversion agreement” can be entered into without any sort of plea. If they follow the rules of the agreement, then charges are never filed against the defendant. If they fail to follow those rules, then charges are subsequently filed and prosecuted.

Sometimes after charges are filed, a “diversion agreement” can be entered into without any sort of plea. Under those circumstances, the case is dismissed without prejudice, and will remain that way as long as the defendant complies with the terms and conditions of the deal.

Under both “diversion agreement” options, sometimes there is a probation officer (usually in drug cases); other times there are not.

In neither “diversion agreement” option does the defendant plead guilty.

In neither “diversion agreement” are people’s gun rights affected.

More often than either of the “diversion agreement” options, “pleas in abeyance” are routinely used to do “deferred judgment/sentencing” and are quite popular. Even though they don’t involve a “conviction,” these do impact gun rights still depending on the charge. Once the PIA is successfully completed, the case is dismissed and the gun rights are restored.

An expungement procedure needs to occur to completely clear their record, however, and that is a separate process.

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?

A wide range. Usually not in sex crimes, child abuse or domestic violence offenses.

I would only explore a deferral if my client specifically instructed me to. Usually, I press hard on self defense and obtain dismissals.

 

Clinton Broden
Broden & Mickelsen
2600 State St., Dallas, TX 75204
214-720-9552
https://www.brodenmickelsen.com

Does your state offer the option of deferred prosecution or deferred judgment/sentencing?

Yes, if the case does not proceed to trial, a defendant is eligible to be placed on deferred adjudication.

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 person pleads guilty or no contest. The deferred adjudication can be part of a plea agreement or, if the parties are unable to reach such an agreement, the defendant can ask the judge to place him on deferred adjudication. Usually there will be a period during which the person will report to a probation officer. Assuming the person completes the probation period, the case will not reflect a conviction. Nevertheless, the offense can still be found on a person’s record unless they seek an Order of Nondisclosure. A person who successfully completes the period of probation will also be able to possess a firearm. Be aware, however, that, if the person was placed on deferred adjudication for an offense involving family violence, they would NOT be eligible for an Order of Nondisclosure and they would be PROHIBITED from possessing a firearm even if they successfully complete the probation period.

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?

Assuming that there are no suppression issues and the person does not want to pursue a trial and the district attorney can not be persuaded to dismiss the charges, deferred probation would always be the next best option and it would definitely be pursued.

 

Joseph Radzwion IV. Esq.
Radzwion Law, PLLC
724 Notre Dame St. Ste B., Grosse Pointe, MI 48230
248-702-5282
https://www.radzwionlaw.com/

Q: Does your state offer the option of deferred prosecution or deferred judgment/sentencing?

A: YES. For most cases, the prosecution, victim, defendant and judge have to agree to a delayed sentence. Some exceptions may apply.

Q: Does the person plead guilty or are charges filed only if they fail to meet the agreement’s conditions?

A: For the most part, the defendant will plead guilty to the charge agreed upon by the defense and prosecutor which may or may not be the original charge. The judge will not enter the guilty plea onto the defendant’s record, but “takes it under advisement” or “delays it until the end of the probationary period.” If the defendant doesn’t hold up their end of the bargain, (violates terms of probation) then a guilty plea can be entered on their record.

A tool to protect the defendant from agreeing to pleading guilty in the hopes of a judge accepting the parties’ delayed sentence agreement is something called a Killebrew plea or an agreement under Killebrew. This comes from the case People v Killebrew, 416 Mich 189, 330 NW2d 834 (1982). This plea is essentially a bargaining tool for sentencing. The parties may request terms under a Killebrew plea be entered into and the recommended terms of the sentence be placed on the record for evaluation.

Ultimately, a judge has the discretion to refuse to take the plea based on the terms of the agreement. A judge can also accept the plea on the condition that at the time of sentencing the judge will evaluate whether the sentencing agreement results in an appropriate sentence. This type of bargaining is viewed as contractual in nature and both parties have a right to have the plea set aside if the court goes outside the terms of the original agreement. MCR 6.310(B)(2)(a).

Q: Does the person report to a probation officer?

A: Depends on the charges and the terms of probation imposed by the judge. I have had clients with probation officers and non-reporting probation with no officers. With non-reporting probation, the court will set a court hearing date that the defendant will check in usually at the end of the probationary period.

Q: 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: After a conviction that is entered onto a defendant’s record the gun rights restoration process is a complex one here in Michigan. The path depends on a lot of variables. The law that prevents a convicted felon from possessing a firearm in the state of Michigan is MCL 750.224f which in sum, states that a person convicted of a felony shall not possess a firearm.

But, what if, from the start of the case, the conviction was plead under a deferral statute such as MCL 333.7411 or MCL 769.4A or MCL 762.11 “HYTA”?

Well, under MCL 333.7411 the law states that a discharge and dismissal is without adjudication of guilt and DOES NOT constitute a conviction for the purposes of deferred sentencing or any disqualification imposed by law. Likewise under MCL 762.11 or “HYTA” if a citizen were to complete a sentence under the terms imposed by HYTA, the law does not consider the completion as a judgment of conviction against that citizen.

Additionally under MCL 762.14, a citizen who is released from the status of youthful trainee under MCL 333.7411 shall not suffer the loss of right or privilege following the completion of such program. The law reads in part,

“An assignment of an individual to the status of youthful trainee as provided in this chapter is not a conviction for a crime and, except as provided in subsection (3), the individual assigned to the status of youthful trainee shall not suffer a civil disability or loss of right or privilege following his or her release from that status because of his or her assignment as a youthful trainee.”

In other words, MCL 762.14 is saying a citizen who completes the terms under MCL 333.7411 cannot be striped of a right or privilege for being sentenced to complete the terms under 7411.

Similarly MCL 769.4A states that “[u]pon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this section must be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime...”

By Caselaw

If a Michigan resident has been convicted of a felony, the Concealed Pistol Licensing Act (CPLA) will disqualify a resident from applying for a concealed pistol licenses (CPL) here in the state of Michigan. However, the court has ruled a citizen who has successfully completed probation under MCL 333.7411 shall not be considered convicted as a felony under the CPLA. See Carr v. Midland CPL Bd, (2003)

In Conclusion

If a citizen has been arrested for a crime and the court used a deferral statute to delay the sentence, there is an argument to be made that a felony conviction has not occurred by law and that firearms rights may not have been stripped away from the citizen.

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Thank you, affiliated attorneys, for sharing your experience and knowledge about deferrals. Members, please return next month for a new question and more interesting commentary from our affiliated attorneys on a new topic.

To read more of this month's journal, please click here.