Welcome to the Prison Talk Online Community! Take a Minute and Sign Up Today!






Go Back   Prison Talk > RESOURCE CENTER > Prison & Criminal Legal Help!
Register Entertainment FAQ Calendar Mark Forums Read

Prison & Criminal Legal Help! Ask questions, get opinions, and find resources on dealing with criminal justice legal issues, appeals, and more..

Reply
 
Thread Tools Display Modes
  #1  
Old 02-25-2017, 05:38 PM
Snowflake123 Snowflake123 is offline
Registered User
 

Join Date: Feb 2017
Location: Las Vegas, NV
Posts: 4
Thanks: 0
Thanked 0 Times in 0 Posts
Exclamation Legal help: District Attorney vs Public Defender vs Judge

Good evening,

I have a question regarding district attorneys and public defenders.
My boyfriend pled guilty to conspiracy, manufacture, intent to sell of a controlled substance: spice (synthetic marijuana) in 2015.
Even though my boyfriend made sure not to use controlled substances, and avoided the chemical compounds that were listed in the DEA website since 2013, a law was made that spice in general (regardless) of the compound was made illegal and he didn't know that. There was an investigation for more than a year before they finally arrested him but set him free after he plead guilty to a lesser charge.
The public defendant is fighting now before the sentencing for probation only and the district attorney doesn't mind that because they only want a conviction. No agreement was signed yet from my understanding until they go to court.
But we have just received a PSI report made by a probation officer that is trying to recommend custody only for 57 months. And we are in total stress and shock. They used the 1:167 ratio to convert synthetic marijuana to marijuana. And they confiscated 9000 grams only but after conversion, it became 1500 kilograms approximately.

And that put him in zone D of the sentencing guidelines, hence the 57 months.

My questions:
-Are they allowed to use the 1:167 ratio?
-If he plead guilty and the public defender and the district attorney agree to just probation, is it a contract that is only gonna be signed by the judge? Or he has an input after he reads the PO psi report?

My boyfriend is non violent, doesn't have any substance abuse, doesn't drink, doesn't do drugs and I cannot imagine him going to prison. Not only I love him but he is a benefit the to society, and helps the communities. We are fine with him getting alternative sentencing (house arrest, probation only etc...) but absolutely no prison time. He made a mistake, only because the dea failed to make the announcement public.

Thank you in advance for your reply. And let's all hope together that he only gets probation. I'm ready to lose my sanity.
Reply With Quote
Sponsored Links
  #2  
Old 02-25-2017, 05:48 PM
fbopnomore fbopnomore is online now
Site Moderator
Donation Award 
 

Join Date: Dec 2009
Location: Seattle, WA
Posts: 30,221
Thanks: 48,589
Thanked 23,457 Times in 13,485 Posts
Default

Welcome to Prison Talk. If there is no signed agreement, his sentence will be up to the judge to sentence him anywhere that is permitted by the statute. If probation is at the bottom of the possible sentencing range, 57 months, or maybe even more prison time may be the upper limit. His lawyer will know what he will be facing at sentencing.
__________________
Reply With Quote
  #3  
Old 02-25-2017, 06:00 PM
Snowflake123 Snowflake123 is offline
Registered User
 

Join Date: Feb 2017
Location: Las Vegas, NV
Posts: 4
Thanks: 0
Thanked 0 Times in 0 Posts
Default

Thank you for the quick reply and welcoming me on here.
There is nothing signed yet but the sentencing is scheduled about a month from now so maybe th DA and the attotney will make the agreement and he will sign it.

But if they signed the documents (I'm not sure if it's the presence of the judge), can the judge overturn it?

The PO recommended 57 months of federal prison, said that the defendant is in zone D so probation is not recommended.

Can the DA and Attorney negotiate regardless of what the PO said and give him probation or an alternative sentence?

I'm really frustrated and I don't want to stress my boyfriend about it. I don't want him to go to prison because it's his first time in trouble like this and he is a good man.

I'm doing everything I can to educate myself in such period of time and that to do my best to prevent him from going to prison. Sometimes people deserve a second chance in life. He is 40 years old, if he goes to prison he will lose everything he has worked so hard for and I will lose myself.
Reply With Quote
  #4  
Old 02-25-2017, 06:05 PM
Snowflake123 Snowflake123 is offline
Registered User
 

Join Date: Feb 2017
Location: Las Vegas, NV
Posts: 4
Thanks: 0
Thanked 0 Times in 0 Posts
Default

And what he is charged with in the PSI report says that custody is a possibility between 0 to 20 years. There's no mandatory period. And probation up to 5 years. But the guidelines shows that he is in level 25 and category I, which means zone D (not eligible for probation apparently) so that explains what the PO recommended.

I really want to do anything I can and even cooperate or volunteer hundred of hours myself just so I don't get seperated from him.
Reply With Quote
  #5  
Old 02-25-2017, 06:18 PM
yourself yourself is offline
attorney
 

Join Date: May 2010
Location: around
Posts: 12,111
Thanks: 4,382
Thanked 22,227 Times in 7,729 Posts
Default

Yes, they are allowed that sort of conversion. Most Spice related statutes did not come into effect until after some particularly heinous murders by people on Spice. As a result, they can use the conversions suggested by statute or rule. There are similar inequities when considering the difference between crack cocaine and powder cocaine when it comes to sentencing with the same amount of crack earning a lot more time than the same amount of powder cocaine.

Welcome to drug math.

A judge never has to accept the plea deal agreed to between a PD and an SA. S/he usually does, but it's not a definitive thing. Ever. So, if the PSR comes back glowing, and the PD and SA agree to everything, but the defendant's girlfriend cut the judge off in traffic and flipped him the bird on the way to court (and then sat behind the defendant all lovey dovey), there's a chance that the judge will nix the deal and sentence according to his/her desires. Maybe, maybe not.

The PSR isn't as controlling as you might think, though if the sentencing range offered by the PSR is within the range agreed to by both the SA and PD, be prepared to deal with it. But, the judge gets to hear arguments from both sides, gets to hear victim impact, and gets to read letters in support of the defendant. So, don't read the tea leaves based solely on the PSR.

Btw, how does selling Spice make him a benefit to communities? Ignorance of the law isn't an excuse - it's like saying, "oh, sorry Judge - I didn't realize drowning somebody to death was actually a form of murder" - it just doesn't work. If he was selling and not using? hinky as hell, and Judges are going to look at such things wanting to just shake their head - either the guy's preying on society through what he perceives as a loophole, or he's lying his ass off about using. And don't blame the DEA - they did make it public. They just didn't have tv commercials about it.
Reply With Quote
The Following 3 Users Say Thank You to yourself For This Useful Post:
missingdee (02-25-2017), Patrickj (02-25-2017), rnsgaig (02-25-2017)
  #6  
Old 02-25-2017, 06:19 PM
missingdee's Avatar
missingdee missingdee is offline
Site Moderator
 

Join Date: Oct 2011
Location: Metro Los Angeles, CA, USA
Posts: 3,531
Thanks: 4,063
Thanked 6,384 Times in 2,372 Posts
Default

The DA and the Public Defender are not bound by the Probation Department's recommendation. Although usually the story is the other way around...probation recommends no jail or a short sentence while the DA seeks a harsher penalty, so his situation, while not unique, is a bit less common.

The judge is not bound by the plea bargain and can always impose his own sentence (at which point the defendant can always withdraw their plea and proceed in some jurisdictions, although I'm not sure how that works in Nevada.)

No clue about whether or not the re-weighting based on the ratio is normal procedure, but given that it's not likely that this is the first time the issue has come up, there has to be some legal grounds for doing so. Maybe look up similar cases in the jurisdiction to see how re-weighting may have come into play there?

Ultimately, if the judge, DA and Public Defender agree jail time isn't warranted in a case like this, they'll make it happen. The judge, ultimately, decides whether or not the plea deal is appropriate.
__________________
Missing Dee. Finding Serenity.



"I'm a great believer in luck, and I find the harder I work, the more I have of it."
-Thomas Jefferson
Reply With Quote
The Following User Says Thank You to missingdee For This Useful Post:
Patrickj (02-25-2017)
  #7  
Old 02-25-2017, 06:39 PM
Snowflake123 Snowflake123 is offline
Registered User
 

Join Date: Feb 2017
Location: Las Vegas, NV
Posts: 4
Thanks: 0
Thanked 0 Times in 0 Posts
Default

I undersand that sometimes justice is very important but I feel like cases need to be taken based on the individual.

He is a plus in the community because he doesn't have his smoke shop anymore, he sold his house, his cars and every single asset he owned to pay his debts to the society even though it made his net worth negative.

Since then, he started worked for a nonprofit organization, with a very low salary compared to the national average, and has advanced to become an assistant manager. He works with people with disabilities, and does not drink or do drugs at all. His life is his job and his family (me and our two dogs). He also organized for three consecutive years dinners to feed the hungry and the homeless people in the society. He really is a good person. He admitted guilt, cooperated and asked for god's forgiveness and works everyday to better himself and have a bright future. He is honest and has a big heart. A lot of people love him and I've never seen him having a conflict with anyone. He is nonviolent, and putting him in prison will only make things worse. Instead of putting someone like him in jail, and mas the society pay for it, they should put violent people there, murders, rapists. I understand that he made a mistake that is punishable by law but there's no benefit from putting him in prison. He made the mistake and he is now moving forward with his life. All what I want from the judge is giving him a second chance in life, regardless of how I feel.

House arrest could be more beneficial. And as for the mistake, the DEA banned certain compounds only at first, so the chemist found new ones and manufactured spice. The only problem is that in 2014-2015, spice in general got banned and became a controlled substance. And my bf wasn't aware. Otherwise he would've never done it.

And now that marijuana is legal here, it is nonsense that they are applying this ratio. The product was labeled "not meant for consumption". Some people are crazy, they try to eat it and then something happens to them. It's like buying antifreeze and drinking it, why isn't antifreeze a controlled substance?

As for thid case specifically, there were no victims.

Any suggestion for something I can or my boyfriend do to make the judge listen to this, and notice that the DA and PD are agreeing that probation is better than what the probation officer recommended?

The PO was really nice when I met him, but all his report forcuses on negatuve stuff, even charges that got dropped after my bf pled guilty. I'm really shocked and traumatized. I really can't even sleep at night, and all of this situation makes me moody and obsessive with it. I really wanna help in any way but I feel helpless and confused. I've been studying the case, researching everything but everything clashes with the PSI
Reply With Quote
  #8  
Old 02-25-2017, 08:05 PM
Patrickj's Avatar
Patrickj Patrickj is offline
Moderator
 

Join Date: Aug 2006
Location: Atwater CA. USA.
Posts: 2,731
Thanks: 2,507
Thanked 2,672 Times in 1,161 Posts
Default

Quote:
Originally Posted by Snowflake123 View Post
I undersand that sometimes justice is very important but I feel like cases need to be taken based on the individual.

He is a plus in the community because he doesn't have his smoke shop anymore, he sold his house, his cars and every single asset he owned to pay his debts to the society even though it made his net worth negative.

Since then, he started worked for a nonprofit organization, with a very low salary compared to the national average, and has advanced to become an assistant manager. He works with people with disabilities, and does not drink or do drugs at all. His life is his job and his family (me and our two dogs). He also organized for three consecutive years dinners to feed the hungry and the homeless people in the society. He really is a good person. He admitted guilt, cooperated and asked for god's forgiveness and works everyday to better himself and have a bright future. He is honest and has a big heart. A lot of people love him and I've never seen him having a conflict with anyone. He is nonviolent, and putting him in prison will only make things worse. Instead of putting someone like him in jail, and mas the society pay for it, they should put violent people there, murders, rapists. I understand that he made a mistake that is punishable by law but there's no benefit from putting him in prison. He made the mistake and he is now moving forward with his life. All what I want from the judge is giving him a second chance in life, regardless of how I feel.

House arrest could be more beneficial. And as for the mistake, the DEA banned certain compounds only at first, so the chemist found new ones and manufactured spice. The only problem is that in 2014-2015, spice in general got banned and became a controlled substance. And my bf wasn't aware. Otherwise he would've never done it.

And now that marijuana is legal here, it is nonsense that they are applying this ratio. The product was labeled "not meant for consumption". Some people are crazy, they try to eat it and then something happens to them. It's like buying antifreeze and drinking it, why isn't antifreeze a controlled substance?

As for thid case specifically, there were no victims.

Any suggestion for something I can or my boyfriend do to make the judge listen to this, and notice that the DA and PD are agreeing that probation is better than what the probation officer recommended?

The PO was really nice when I met him, but all his report forcuses on negatuve stuff, even charges that got dropped after my bf pled guilty. I'm really shocked and traumatized. I really can't even sleep at night, and all of this situation makes me moody and obsessive with it. I really wanna help in any way but I feel helpless and confused. I've been studying the case, researching everything but everything clashes with the PSI
In the state of Nevada the PSI report is reviewed by the Judge also it is the recommendation Of P&P that the District Attorney and the Judge work with to come to an agreement on sentencing .If the offense carries probation and the D.A. is not seeking anymore than probation. Then probation may be granted.
Should the accused have any type of criminal history close to the new offense
probation will be denied .If both sides can not come to an agreement on terms of sentencing. The Judge may take it upon their self to pass sentence using P&P recommendations.
If Nevada Revise Statues come in to play in to sentencing( required by law to be sentenced to prison for a certain offense) Then the Judge is powerless in granting probation.
Bottom line here is if the accused doesn't like the deal on the table , You go to trial and get hung out to dry in Nevada. Ignorance of the law is never a good defense tool. It just isn't accepted. The dealing of drugs is dealing of drugs no matter if you are dealing fake dope or the best on the streets. Is still dealing dope. Just my opinion in this matter is your friend is going to do time behind this offense maybe not what P&P recommends but some of what is being recommended.
I have dealt with legal issues myself in Nevada. I always got what P&P recommended. Luckly my intake person at P&P was decent. Now my offense the Judge's hands were tied by NRS. ( Nevada Revised Statue)
__________________
Be a friend to everyone,never know when you may need their help
Reply With Quote
The Following User Says Thank You to Patrickj For This Useful Post:
missingdee (02-25-2017)
  #9  
Old 02-25-2017, 09:43 PM
yourself yourself is offline
attorney
 

Join Date: May 2010
Location: around
Posts: 12,111
Thanks: 4,382
Thanked 22,227 Times in 7,729 Posts
Default

btw, even though pot may be legal for rec uses in your state, it's still a federal offense. While the Obama administration didn't go after people in states that had legalized for rec or medical uses, the Trump administration has just released information making the prosecution of pot, no matter what, a priority. Whether they actually go after people or not, especially with their immigration debacle ongoing, remains to be seen. But, no matter what a state says, it's still against federal law.

You indicate that he's sold his head shop and a bunch of assets to pay restitution - this isn't his first dance with the criminal justice system. What you need to do is not argue about the legality of the substances he was selling to others, whether or not those others were physically injured by those substances, the abuse of substances is an injury. Instead, you need to start lining up people to write character letters supporting your LO. Get those letters to your LO's attorney. They will help, especially if he's been working with people in a humanitarian capacity as you suggest.

Drugs, no matter what you're selling, are not a victimless crime. Best to start throwing some weight against the PSR with some letters from people who can speak about his character, not argue the case, but speak about his character.
Reply With Quote
The Following 2 Users Say Thank You to yourself For This Useful Post:
missingdee (02-25-2017), Patrickj (02-25-2017)
  #10  
Old 02-25-2017, 10:23 PM
missingdee's Avatar
missingdee missingdee is offline
Site Moderator
 

Join Date: Oct 2011
Location: Metro Los Angeles, CA, USA
Posts: 3,531
Thanks: 4,063
Thanked 6,384 Times in 2,372 Posts
Default

Quote:
Originally Posted by Snowflake123 View Post
I undersand that sometimes justice is very important but I feel like cases need to be taken based on the individual.

He is a plus in the community because he doesn't have his smoke shop anymore, he sold his house, his cars and every single asset he owned to pay his debts to the society even though it made his net worth negative.

Since then, he started worked for a nonprofit organization, with a very low salary compared to the national average, and has advanced to become an assistant manager. He works with people with disabilities, and does not drink or do drugs at all. His life is his job and his family (me and our two dogs). He also organized for three consecutive years dinners to feed the hungry and the homeless people in the society. He really is a good person. He admitted guilt, cooperated and asked for god's forgiveness and works everyday to better himself and have a bright future. He is honest and has a big heart. A lot of people love him and I've never seen him having a conflict with anyone. He is nonviolent, and putting him in prison will only make things worse. Instead of putting someone like him in jail, and mas the society pay for it, they should put violent people there, murders, rapists. I understand that he made a mistake that is punishable by law but there's no benefit from putting him in prison. He made the mistake and he is now moving forward with his life. All what I want from the judge is giving him a second chance in life, regardless of how I feel.

House arrest could be more beneficial. And as for the mistake, the DEA banned certain compounds only at first, so the chemist found new ones and manufactured spice. The only problem is that in 2014-2015, spice in general got banned and became a controlled substance. And my bf wasn't aware. Otherwise he would've never done it.

And now that marijuana is legal here, it is nonsense that they are applying this ratio. The product was labeled "not meant for consumption". Some people are crazy, they try to eat it and then something happens to them. It's like buying antifreeze and drinking it, why isn't antifreeze a controlled substance?

As for thid case specifically, there were no victims.

Any suggestion for something I can or my boyfriend do to make the judge listen to this, and notice that the DA and PD are agreeing that probation is better than what the probation officer recommended?

The PO was really nice when I met him, but all his report forcuses on negatuve stuff, even charges that got dropped after my bf pled guilty. I'm really shocked and traumatized. I really can't even sleep at night, and all of this situation makes me moody and obsessive with it. I really wanna help in any way but I feel helpless and confused. I've been studying the case, researching everything but everything clashes with the PSI
Okay, I understand that he's done a lot of good things that show contrition and change.

Here's the problem: he broke the law, and ignorance of the law (or ignorance of the law changing) does not excuse it.

What can you do? Easy: LET HIS LAWYER HANDLE IT. You are not his lawyer. He doesn't know enough areas of the law to represent himself would be my thinking. And by the sounds of it, his lawyer's already done a great job of getting the District Attorney to see the mitigating factors here and recommend a deal that involves no further jail time. That's a serious "wow." That means the PD's really gone to bat for him, probably for all the reasons that you just listed.

You and others may be able to write letters to the judge on his behalf in support of leniency/mitigation. I would ask his lawyer if that is something that can be done.

The person working for probation might be the greatest person in the world. The reality is that they still have a job to do and they have to do it in accordance to what the law is. They can't just write "eh, this guy committed a very serious felony, but hey, he seems like a cool dude so I think we should let it slide." He has to examine the whole case and all factors and make a recommendation based on it.

By the sounds of it, the probation officer wrote their report as unbiased as possible, based on the information presented to them in terms of what is speculated, what is proven, etc., and also the mitigators, determined the information as-presented was not probation-eligible, and recommended the minimum sentence under the scenario. If 57 months is the minimum, and that's what he recommended given the circumstances, then that's a show that he gave it a fair shake.

It is possible that the judge could go against that report and agree to whatever plea bargain is being offered instead. That might involve introducing a lesser charge that is probation-eligible.

I hope that you get a great result. I really do. But at the end of the day you need to understand this....the judge has a job to do, the DA has a job to do, the Public Defender has a job to do and the Probation Officer has a job to do. Nobody is trying to work against him outside of whatever the scope of their job and criminal justice is. They're just doing their job. When Dee had her in-prison drug charge I wound up spending an hour talking to the Deputy DA working the case. He was a great guy. He explained his office's position to me. He gave some off-the-record thoughts and actually gave me a chance to plug why he should give consideration to mitigating factors in her situation and came back with a very fair deal under the circumstances. From what I understand, what this Deputy DA did for me was extremely rare and the conversation very much could have gone in a much, much worse direction for my LO. I got lucky. DO NOT TRY THIS AT HOME basically. But he still had to do his job. I have a great deal of respect for him because he went well beyond the duty of his office in speaking to me, but he still had a job to do and I respected that fact.

And also, to your point that jail/prison is better suited for rapists/murderers/violent offenders/etc....while I'm inclined to agree with you on a personal level, the reality is that that's not how the justice system works. You'll also find that the wives, husbands, friends and family of those sorts of criminals are the sort that are going to offer you a lot of support and help you navigate the system, especially if he does wind up doing time. Dee, my sweet, beautiful girl who gets shy and gets this cute little smile on her face and blushes whenever I kiss her hand.....is also a violent offender.

So I get it. We all want to think, at the start of the journey, "oh, well, my loved one isn't a thing like those others, there's no way he/she deserves prison."

But over time, we realize that we are no better or worse than anyone else here, and neither are they.

That said, again, I hope for the best result for you, that prison time does't become a factor and that his and your dealings with the justice system are nearing an end.

If not, just know we are here to help you get through it.

-E
__________________
Missing Dee. Finding Serenity.



"I'm a great believer in luck, and I find the harder I work, the more I have of it."
-Thomas Jefferson

Last edited by missingdee; 02-25-2017 at 10:27 PM..
Reply With Quote
The Following User Says Thank You to missingdee For This Useful Post:
Patrickj (02-25-2017)
Reply

Bookmarks

Tags
district attorney, help me, plea agreement, public defender, sentencing

Thread Tools
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is Off
HTML code is Off
Forum Jump

Similar Threads
Thread Thread Starter Forum Replies Last Post
Public Defender vs. Paid Attorney aug0805 Prison & Criminal Legal Help! 42 10-02-2016 08:52 PM
Attorney wants his money NOW. Would it be better to go with Public Defender McKinneyTexas Prison & Criminal Legal Help! 1 03-10-2015 08:53 PM
Public Defender or Paid Attorney MommyBroken Parents with Children in Prison 37 07-17-2013 08:10 PM
Public Defender vs State Attorney? WJD California Legal Help 7 06-19-2012 11:15 PM
Public defender vs hiring an attorney? mishadawn1122 Texas General Prison Talk 10 06-01-2012 08:13 PM


All times are GMT -6. The time now is 11:12 AM.
Copyright © 2001- 2019 Prison Talk Online
Powered by vBulletin® Version 3.7.4
Copyright ©2000 - 2020, Jelsoft Enterprises Ltd.
Website Design & Custom vBulletin Skins by: Relivo Media
Message Board Statistics