Technique to beat a felony in a mixed felony/misdemeanor case

An interesting case was recently decided in Virginia that has potential implications across all jurisdictions. It is more a strategy than anything else, and certainly the concept is not new. But it worth recalling from time-to-time, that the basics are still alive and well -- even to beat a murder charge.

It is fundamental criminal law that each and every element must be proven by the state "beyond a reasonable doubt." (See Patterson v. New York, 432 U.S. 97 (1977), although this case also stood for the proposition that the state is not required to disprove defenses in order to convict. That's the topic of a different discussion, however). One strategy to defend a case is bifurcation -- split the elements across multiple crimes, then get one of the crimes dismissed. If successful, you have knocked out an element of the underlying felonies, and the entire government case falls apart.

That's what happened in this recent VA case. The case, Commonwealth v. Davis, was decided 29 October 2015. Davis was accused of first-degree murder, maliciously shooting into an occupied vehicle, use of a firearm in the commission of a felony. Oddly, he was also charged with reckless handling of a firearm, a misdemeanor. This is odd, because it opens the State for a drubbing. Remember - if the defense can beat a misdemeanor that contains a required element of the underlying felonies -- it's over, folks. In a brilliant bit of legal maneuvering, the defense smashed the State's case for the misd (slang for "misdemeanor", and pronounced "miss-dee"), prior to the hearings regarding the felonies. This was done by accelerating the hearing for the misd gun charge. The misd was dismissed by the Court, and because possession of a firearm was an element of the felonies, they all collapsed at the preliminary hearing.

Unfortunately for our good friend, Davis, VA has a provision that allows for a direct indictment even after a prelim fails. Some of us think this is a double bite at the proverbial criminal apple, but alas, it 'tis what it is. So, they direct indicted him on the felonies. Of course, that couldn't work either. If the judge cleared him of the underlying misd gun charge (dismiss), to attempt to charge him with a gun crime stemming from the same set of facts constituted double jeopardy and was not permitted.

In summary:

The Court of Appeals reversed Defendant’s convictions and dismissed the indictments, holding that the Commonwealth was collaterally estopped from prosecuting Defendant for murder or attempted murder after Defendant’s acquittal of reckless handling of a firearm. The Supreme Court affirmed, holding that because Defendant’s misdemeanor acquittal and subsequent felony convictions were based on the same issue of ultimate fact, the felony convictions were barred by the prohibition of double jeopardy.

The Takeaway: When the government tries to charge both misdemeanor and felony charges, target the misdemeanor and stall on the felonies. Get the misdemeanor dismissed or beat it at trial - you need a substantive disposition in your favor. Nolle prosequi won't do it, as it is not a determinative disposition on the underlying charges. Once you have victory on the misd, kick the felony. It can be challenging to force the misd before the felony, but you need to work angles to get it done. You don't need a prelim to challenge the misd -- so move quickly to bring that to court. Note that federal court rarely lists all charges pre-indictment, so knocking some aspect of the case out by resolving a misd prior to indictment may be of dubious value; but it can have devastating consequences at the preliminary hearing.

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Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.	Lili O'connell, Esq. Charles Hatley, Esq.
1-800-579-9864	admin@hanoverlawpc.com

Sentencing Guideline Overview (felony)

Is it possible to get a sentence of 18 months for the crime of armed robbery in DC?

In order to determine a "range" for a specific crime, you need to look at the sentencing guidelines. You can find them online for the District of Columbia at http://scdc.dc.gov/publication/2014-voluntary-sentencing-guidelines-manual. You need to know both the offense being charged, and any enhancements or aggravating elements that could make the crime more serious. The most common form of enhancement is prior offenses.

Like many jurisdictions, DC works on a point system. For example, prior convictions for serious crimes carries a "+ point score" of +3. Misdemeanors are +1. Generally, any conviction AND sentence within 10 years will add points to the score table. In Federal Court, sentence categories are much more varied, but the point score follows the same concept.

Armed robbery itself falls on master group 5 with a range from 36 months to 120 months. Although these are suggestive (voluntary) guidelines, the Court will almost always follow them. Of course, enhancements or aggravating factors will make this much higher.

To deviate from this, you need an excellent and compelling reason. We can help with this, however, downward departure is a tough sell without a compelling cause (illness, cooperation, or single parent with children are examples). Generally, we seek mitigating circumstances that lessen the sentence and keep any time to the lower quartile (25%) of the guidelines. In sentencing hearings, maintaining the lower quartile is a success.

Do you need help with sentencing on a serious felony matter? Contact us at 1-800-579-9864 or admin@hanoverlawpc.com.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com		Lili O'connell, Esq. Abby Archer, Esq.
888 16th St., NW Ste 800 Washington, DC 20006	2751 Prosperity Ave, Ste 150 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq.

Why Everyone- Even The Guilty- Deserves To Be Defended

I had an interesting discussion today with a colleague of mine who practices personal injury law. Now this fella is a great attorney, and I have a lot of respect for his approach and his ethics. However, as seems to always be the case when we discuss law issues (I know -- shallow group, we lawyers), he is dumbfounded on how my firm can practice criminal law. More precisely, I was explaining a recent "win" we had on a sexual assault case. This made him angry. After all, didn't we just get a rapist to go free? That's right folks -- we won a complete dismissal of all charges on a class "A" felony count for first degree sexual assault (for those of you not privy to legal jargon, a class "A" is the worse type -- life in prison or the death penalty).

It would be easy to say we do this for the money -- for surely, defense of serious criminal matters is not a cheap proposition. It would be easier to say we do it because, "every person deserves his/her day in court -- and someone has to stand by them."

Criminal Indictment -- what is it?

So What's an Indictment anyway?

The term "indictment" (pronounced in-dite-ment) is used to indicate the process where a grand jury finds sufficient evidence to charge a person for a specified felony offense. The prosecutor must bring evidence and witnesses to the grand jury in order to convince the jurors that the charges are "real" and substantiated. The term for this is "taking the case to the grand jury", and under the constitution, this must be done in a speedy manor (Sixth Amendment to the Constitution). States have considerable leeway to decide what constitutes "speedy", and if the accused is not detained, the definition becomes even more broad. But generally, detained = ~100 days; non-detained = ~9 months. If this period elapses with no action on the case, a motion can be made to acquit the accused for want of prosecution.

For example, possession of 5 grams of marijuana is a misdemeanor offense, not a felony. Therefore, there would be no grand jury. However, possession of 1lbs of marijuana, with distribution charges and felony crossing state lines, would absolutely be taken to a grand jury.

Remember this -- a criminal conviction for drug abuse, no matter how minor, will have devastating consequences for your life and future job prospects (remember that little box you have to check indicating a conviction?). Do you have a drug charge? Let us help you immediately. 703-402-2723.

Sean Hanover, Esq.
Hanover Law
www.hanoverlawpc.com
Offices in Fairfax and DC
888 16th St. NW
Washington, DC 20006