Can you get a jury trial on a VA misdemeanor?

From a Comment Board I am a member of:

Do I have the right for a jury trail for a class 1 misdemeanor in Virginia? Also, what legal process can I do when some one comments perjury to get me arrested?

Great questions! VA has a two step judicial system for misdemeanors. The first step is called the "district court". It is not a court of record, and it does not have a jury. You can read about this in the Virginia Constitution at Article I, Section 8 which outlines the process for misdemeanor hearings in district court. If you are dissatisfied with the outcome of the district court case, you can request a hearing de novo in Circuit Court. That's step two! Circuit court is the next level up from district court. Circuit Court is a court of record, and when appropriate, you can request a jury trial.

Jury trials are appropriate when the case is not "petty". Generally, the Supreme Court has ruled that means >180 days in jail is possible. Although Virginia technically allows a jury trial for all offenses (even that parking ticket!), as a practical matter, it will be extremely difficult to get a jury trial for anything below 180 days. Check with your local court for procedures on this, as you don't want to make the Court and the judge angry by demanding the ridiculous.

Because a class 1 misdemeanor carries a maximum of 1 year in jail and/or a sentence of $2500, you would be eligible for a jury for most 1st class misdemeanors in VA (such as what you asked about). Note, however, that juries are not always advisable. In VA, if you elect to proceed with a jury trial (or the Government decides to demand it -- in VA, the prosecutor can ask for a jury trial, too!), the jury provides the recommended sentence to the judge. The jury is not permitted to suspend time, making the maximum and minimum penalties for a particularly crime the absolute guideline as to what your sentence will be. A judge, however, may suspend time, or craft a solution that fits the particular facts of the crime.

As to your question regarding perjury, when the trial is over, you can go after the perjurer for submitting a false police report. Remember, though, this won't work if you merely say the person lied about you. He-said-she-said is not enough, and often unless you have compelling evidence of mistruth (for example, you can prove you were in Florida when they accused you of breaking into their house in Virginia, and they knew it), the Courts won't entertain the action.

Do you have questions about false reports or jury trials? Ask us! We're happy to discuss your case. 703-402-2723 or admin@hanoverlawpc.com.

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.
1-800-579-9864 admin@hanoverlawpc.com

Lessons from the Criminal Bar -- making up a sentence and crafting probation

A couple of hard learned lessons from criminal court in DC.

• Certain criminal activity doesn't have a sentence associated with it. When that happens, go for misdemeanor 180/$1000. This is especially true for inchoate crimes (attempt, conspiracy, etc.).
• Crimes that stem from the same event should always be argued as concurrent sentences. Remember the rule - if it stems from the same event or facts, treat it as one clump. See? That rhymes.
• Always prep your client with the plea proffer before the prosecutor reads it to the judge. If you don't do that, expect all hell to break lose. It's also malpractice. The proffer is a key area to negotiate, as the facts often lead up to the degree or severity of the sentence. An example will help with this:
  

  BAD PROFFER:
  

  The man went to the house and stabbed his wife in front of his child.

  
  GOOD PROFFER:
  

  The man received a text from his ex-wife to come to the house and watch their children. When he arrived, an altercation ensued when the ex-wife saw sexually explicit email and pictures on his phone. During the course of the altercation, the man stabbed his wife. He was unaware that his son was observing the event.

  
  

  Which of the two above would be easier to argue at sentencing? Review and negotiate all proffers of substance.
• When discussing probation, always be specific as to the level of probation required. Does the Court permit phone contact or no supervision? If so, make sure that is written in the agreement.
• Always make sure your client has a home address before probation get's a-hold of her.

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.
1-800-579-9864 admin@hanoverlawpc.com

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.

View Case On: Justia Google Scholar

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.

NEW IMMIGRATION RELIEF: DACA EXPANDED -- NO MORE AGE LIMIT!

DACA is Now Available to All!

With President Obama's announcement last night, DACA (Deferred Action, Childhood Arrival) has been expanded. Previously, the age cap was 31 -- individuals older than 31 could not apply. That cap has been removed! DACA is now available to a person meeting the DACA eligibility requirements, regardless of age. Further, the continuous residency requirements have also been amended. The new DACA requirements are:

1. You must have arrived in the United States before you 16th birthday.
2. You must have remained in the United States continuously since 01 January 2010.
3. You must not have any serious criminal record (no misdemeanors or felonies -- some exceptions here).
4. You must not be a priority removal target for ICE/DHS (generally, this means you cannot be a repeat immigration removal offender, terrorist, national security threat, serious criminal, gang member, smuggler, or other ne'er-do-well).

Source: DHS Memorandum on DACA eligibility amendments

This is an outstanding opportunity for those who were previously excluded. We expect an overwhelming response to these new regulations. This will result in a large backlog and significant delays in processing. Contact Hanover Law now to start this process immediately. We will determine if you qualify, and what steps you need to take to complete the application process.

Do you have a criminal conviction that makes DACA difficult?

Do NOT be afraid. We specialize in helping folks just like you overcome their immigration difficulties. We practice throughout the East Coast in immigration courts from New York to Florida. We can help you! While no attorney can guarantee success, our experience assures you the best possible chance for obtaining legal status.

The new regulations indicate that you will receive a work permit (EAD = employment authorization document), and legal status, for three years under the DACA program. In most states, this will also allow you to obtain a driver's license and apply for student loans/aid. This is state specific, however, so be sure to discuss this with us when you call.

Start your DACA application now. Call us at 1-800-579-9864. The government filing fee for DACA is $465. This covers the EAD and biometrics fees. The actual application is free. We will complete your DACA application and shepherd your paperwork through the system for $750 + the filing fees. If two or more applicants apply from the same family, the cost is $500 per applicant + the filing fees.

Be CAREFUL how you apply. If your application is denied, you do not have a right to appeal the decision, and you may not apply again. We are licensed attorneys.

Your better future starts today. Contact us to start the process of obtaining legal status. Stop hiding and start living.

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 580 Fairfax, VA 22031	Sean R. Hanover, Esq. Stephen Salwierak, Esq.
1-800-579-9864	admin@hanoverlawpc.com	Charles Hatley, Esq. Leigh Wells, Esq.

Protective Order Violations -- and steps to fight back

In DC, what code controls protective orders?

Let's start with the basics. The following DC Code sections apply to your case: 16-1004, 16-1005, and 16-1006. Generally, a temporary order is given to anyone who claims abuse; a hearing will then be held to determine if the temporary order should be made permanent (CPO). Violation of a protective order results in (among other things):