THE BASICS OF HANDLING A CRIMINAL CASE

Transcription

1 THE BASICS OF HANDLING A CRIMINAL CASE Anthony Muhlenkamp Muhlenkamp & Bernsen, Attorneys at Law, LLC 8008 Carondelet Ave., #102 Clayton, MO (314) amuhlenkamp@mbstlcriminaldefense.com THE PATH OF A CRIMINAL CASE Associate Circuit Court - Where misdemeanors start and finish - Where felonies begin and stay until there is a finding of probable cause - Grand Jury returns a true bill and your client gets indicted OR you lose/waive a preliminary hearing Circuit Court - Where felonies are resolved (by trial or plea of guilty) 1

2 INITIAL PLEADINGS IN EVERY CASE Entry of Appearance Request for Discovery Form Motions - Motion to Suppress Statements - Motion to Suppress Evidence - Motion to Suppress Identification Obtain the Charging Document - Complaint, Indictment, Information THE INITIAL JAIL VISIT Go and meet your client. Do NOT tell them: Tell me what happened Focus on their background and the bond factors so you can make a good argument at their bond reduction hearing - Family, Job, School History, Work History, Criminal History, Prison/Probation History, Treatment/Medical History You are charged with A, B, C this is what we are going to try to do to get you out of jail Review the charging document with your client and explain it to them Ranges of Punishment (RSMo ) Authorized Dispositions (RSMo ) 2

3 BOND REDUCTION MOTION Usually will be in Associate Circuit Court Initial Bond is set with no information other than Defendant s prior record and the type of offense charged Always see if the State will consent to a bond reduction (Jx s vary a LOT on this issue) If no, Notice up a Bond Reduction Hearing - Victim s Rights Statute (RSMo ) - Prosecutors and Courts enforce this strictly - If no victim, most prosecutors will talk to you right away or you can do a shorter notice (less than five days) BOND HEARING The purpose of a bond is to ensure the defendant will appear. (Rule 33.01b) Factors the Court will consider: (Rule 33.01e) Nature and Circumstances of the Offense Charged Weight of Evidence against the Accused The Accused s Family Ties Employment Financial Resources Character Mental Condition Length of Residence in the Community Record of Convictions Record of Appearances at Court Proceedings OR Flight therefrom 3

4 TWO RECURRING ISSUES Is the Defendant a Threat to the Public? Is the Defendant a Flight Risk? Be ready to provide suggestions to the Court - EMASS - SCRAM - GPS TYPES OF BONDS Cash Only Bonds Recognizance Bonds Surety Bonds (Bondsman) Property Bonds 10% Cash Bonds - Note: Bond Assignments/Bondsmen Distinctions 4

5 Probable Cause Determination in Associate Circuit Court Preliminary Hearing - Is there probable cause that a felony has been committed and that the Defendant committed it? (State v. Woods, 723 S.W.2d 488, Mo. Ct. App. S.D. 1986) - Obtain Discovery ASAP, before PH if possible - Have hearing or waive the hearing - Do not waive the PH for free - Request a recommendation and discovery ASAP, review with your client before PH if possible Probable Cause Determination in Associate Circuit Court Grand Jury (One-Sided Process) Waiting game Consider a Motion to Dismiss for Failure to Prosecute if it takes too long Usually two tries, depends on the jurisdiction 5

6 CIRCUIT COURT PROCESS BEGINS Arraignment The first formal step in the criminal trial process Formal notification to the Defendant of the charges against him (Rule 24.01) Also called the initial plea Rights and Obligations and most deadlines attach at the arraignment RIGHTS AFTER ARRAIGNMENT Change of Judge Post preliminary hearing (Rule 32.07) Within 10 days of your initial plea OR within 10 days of the designation of a trial judge Change of Venue Rule 32.03a 75,000 or less residents Within ten days of initial plea 6

7 RIGHTS AFTER ARRAIGNMENT Discovery rules are applicable only upon the filing of an indictment or information (Rule and 25.02) Requests/Motions for Discovery must be made within 20 days after arraignment You must respond to a discovery request within 10 days and have a continuing duty to disclose (in practice, file a boilerplate motion ASAP with your entry of appearance) DISCOVERY OBLIGATIONS The State MUST give you: (Rule 25.03) Names/last known addresses of its witnesses Statements of its witnesses Statements of the Defendant Transcripts of the PH/GJ if they exist Reports made by experts Physical/Documentary evidence to be used at trial Its witnesses criminal records Any material in the State s possession that negates or mitigates Defendant s guilt MAKE SURE materials are in your request for discovery!!! 7

8 DISCOVERY OBLIGATIONS The Defendant MUST give the State (Rule 25.05) Expert Reports/Statements that you intend to offer at trial Names/Addresses of Witnesses you intend to call (Not the Defendant) Physical/Documentary Evidence you intend to offer at trial Notice of Intent to Rely on Defense of Mental Disease or Defect Particulars re: an Alibi Defense INVESTIGATION PREPARING FOR TRIAL/PLEA Get you client s feedback immediately after reviewing discovery with him Witnesses that can help you need to be interviewed (have a third party present) Subpoena records Motions to Compel Evidence (Rule 25.04A) If it s a reasonable request and relevant to your case, you should get it 8

9 INVESTIGATION PREPARING FOR TRIAL/PLEA Depositions (Rule 25.12a) - Governed by the civil rules - Court Reporter ($$$) - Prosecutors will usually produce witnesses for depositions, otherwise subpoena the witnesses DISCOVERY AND INVESTIGATION ARE DONE NOW WHAT? Talk to your client What does he want? What is his goal? Have you discussed with him the strength s and weaknesses of his case? Have you discussed the probable outcome if the case goes to trial? Have the ultimate PLEA/TRIAL discussion 9

10 GUILTY PLEAS There are two types of guilty pleas 1. Pursuant plea of guilty - Worked out ahead of time. The Court simply signs off on the agreement. 2. Open/Blind plea of guilty - Up to the Court (with a Sentencing Assessment Report or SAR) - Be careful with these, you need to know your judge and your jurisdiction - Most Courts will not go over the State s recommendation, but there is no guarantee - Do your research - Get ready for sentencing (job, school, rehab completed, SAR interview) OPEN/BLIND PROCEDURES Jurisdictions vary a LOT in how they do these City of St. Louis St. Louis County St. Charles Rural Out State Counties 10

11 AUTHORIZED DISPOSITIONS RSMo Prison Sentence (RSMo ) Fine Probation Suspended Imposition of Sentence (SIS) No sentence is pronounced. The Court retains Jx to impose sentence for the full range of punishment. Not a conviction unless the Court makes it a conviction after a probation violation. Suspended Execution of Sentence (SES) A sentence is imposed, therefore it s a conviction immediately. The backup is capped. It cannot get higher if the defendant violates his probation. RANGES OF PUNISHMENT RSMo Class A Felony (10-30) Class B Felony (5-15) Class C Felony (0-7, or 0-1, or up to $5000) Class D Felony (0-7, or 0-1, or up to $5000) Class A Misdemeanor (0-1, or up to $1000) Class B Misdemeanor (0-6 mos., or up to $500) Class C Misdemeanor (0-15 days, or up to $300) 11

12 DWI/DRUG COURTS Programs available in many jurisdictions that allow a nonviolent felony offender to avoid felony probation, a felony conviction, or a prison sentence Usually a dismissal or reduction of charges Most programs last 12 to 18 months These are usually good deals, but prepare your client. Straight probation is always much easier. PROBATION VIOLATIONS PO reports a violation and notifies the Court. The Court or State files a Motion to Revoke Probation. State must prove at the hearing, NOT beyond a reasonable doubt, but is the Court reasonably satisfied that the conditions have been violated (Ewing v. Wyrick, 535 S.W.2d 442, Mo. 1976) The Court can: Continue Defendant on probation Add or Subtract conditions on probation Revoke Defendant s probation and execute sentence 12

13 ISSUES WITH PROBATION VIOLATIONS SIS can become an SES Defendant that picks up a New Case as a probation violation Negotiating Bonds Early Discharge from Probation RSMo Day for Day Credit Statute RSMo Applies to most C/D felonies PROCEED WITH CAUTION Unclassified Felonies (go to statute) Prior Felony Offenders RSMo No jury sentencing Prior Plea of Guilty or Finding of Guilt Persistent Felony Offenders RSMo Two or More Prior Pleas of Guilty or Findings of Guilt Range of Punishment is Bumped Up 13

14 PROCEED WITH CAUTION Prior/Persistent Drug Offenders RSMo RSMo ; ; A Prior Drug Offender charged with a class A or B drug felony is looking at years and possibly a WOPP sentence A Persistent Drug Offender charged with a class A or B drug felony is definitely looking at years and WOPP sentence A persistent drug offender only charged with a class C drug felony is looking at 10-30, but no WOPP If you have a WOPP case, try to negotiate it for a soft sentence PROCEED WITH CAUTION Dangerous Felonies (RSMo ) - If a Defendant pleads to or is found guilty of a dangerous felony as defined in RSMo , he must serve 85% of the sentence before being eligible for parole - Dangerous Felonies include the following charges: 1) Arson 1 st Degree 2) Assault 1 st Degree 14

15 PROCEED WITH CAUTION 3) Attempted Forcible Rape with Physical Injury 4) Attempted Forcible Sodomy with Physical Injury 5) Forcible Rape 6) Forcible Sodomy 7) Kidnapping 8) Murder 2 nd Degree 9) Assault on a Law Enforcement Officer 1 st Degree 10) Domestic Assault 1 st Degree 11) Elder Abuse 1 st Degree 12) Robbery 1 st Degree 13) Statutory Rape 1 st Degree (child less than 12) 14) Statutory Sodomy 1 st Degree (child less than 12) 15) Abuse of a Child Resulting in Death 16) Child Kidnapping 17) Parental Kidnapping (concealing the child for at least 120 days) PROCEED WITH CAUTION Bottom line with all dangerous felonies try to get these charges amended if you are pursuing a plea agreement. Make sure your client knows exactly what he is facing if the case goes to trial so there are no surprised. 15

16 SEX OFFENSES RSMo Lifetime Registration (almost always) Make sure you check the statute to see if registration is a collateral consequence if you lose and inform your client Child Abuse ( ), the abuse must be sexual in nature Sexual Misconduct: the victim must be a minor FAILURE TO REGISTER AS A SEX OFFENDER RSMo First offense is a normal class C or D felony, standard range of punishment, probation eligible Second offense is a normal class C or D felony, standard range of punishment, probation eligible Third offense Range of punishment jumps to years Court may NOT grant probation to a third offender No release until you ve served 2 years in prison Upon release, GPS monitoring is required 16

17 ARMED CRIMINAL ACTION RSMo First offense, 3 year minimum sentence no probation. Second offense, 5 year minimum sentence, no probation. Third offense, 10 year minimum sentence, no probation. DRIVING WHILE INTOXICATED RSMo First DWI is a class B misdemeanor Second DWI is a class A misdemeanor (Prior Offender) Third DWI is a class D felony (Persistent Offender) Fourth DWI is a class C felony (Aggravated Offender) Fifth or more DWI is a class B felony (Chronic Offender) 17

18 DRIVING WHILE INTOXICATED A Prior, Persistent, Aggravated or Chronic Offender CANNOT get a Suspended Imposition of Sentence (SIS) Prior Offender: No probation/parole until you do at least 10 days in jail (unless you do a LOT of community service or complete a DWI Court Program) DRIVING WHILE INTOXICATED Persistent Offender: No probation/parole until you do at least 30 days in jail (unless you do a LOT MORE community service or complete a DWI Court Program) Aggravated Offender: No probation/parole until you do at least 60 days in jail Chronic Offender: No probation/parole until you do at least 2 years in jail 18

19 BOTTOM LINE ON CRIMINAL STATUTES Check the statute VERY carefully Inform your client of his complete exposure If you do not feel comfortable handling a case you cannot get someone probation on, refer the case to someone else or get assistance from an attorney that has handled those cases before Do not look stupid VALUABLE RESOURCES Casenet: ase/welcome.do Missouri Approved Instructions (MAI-CR 3d) Missouri Criminal Practice Handbook (by Judge Robert H. Dierker 19

20 QUESTIONS??? Please call or me if you have a question or need a form pleading. Anthony Muhlenkamp Muhlenkamp & Bernsen, Attorneys at Law, LLC 8008 Carondelet Ave., #102 Clayton, MO (314) amuhlenkamp@mbstlcriminaldefense.com 20