Rule 11(e) provides that a “Plea may be set aside only on direct appeal or collateral attack.” Unfortunately, on appeal, individuals often face a further hurdle, as appellate courts generally apply a plain error standard where an appellant seeks relief from a plea, but did not file a motion to withdraw at the district court level.
In order to correct an injustice, Mr. Hawkins hired NLPA and Attorney James Belt to prepare an appeal to set aside his plea.
With research assistance from NLPA, Attorney James Belt filed a brief, asserting the issue regarding Mr. Hawkins’ involuntary plea, as well as certain other arguments.
With regards to the plea, it was argued that the district court erred in failing to inform Mr. Hawkins of the nature of the charge to which he was pleading guilty, and by failing to ensure that there was an adequate factual basis for the plea, and that the resulting plea was therefore involuntary.
In making these argument, it was established that the errors affected Mr. Hawkins’ substantial rights, as due process requires a guilty plea to be voluntary, and “a guilty plea … cannot be truly voluntary if a defendant ‘has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt.'” Marshall v. Lonberger, 459 U.S. 422, 431 (1983) (quoting Henderson v. Morgan, 426 U.S. 637, 645, n. 13 (1976)).
In spite of the provision in the plea agreement that blocked Mr. Hawkins from filing an appeal, the Court of Federal Appeals agreed, finding that the district court erred by failing to make sure Mr. Hawkins understood the nature of the charge; and by accepting his plea when there was no sufficient factual basis regarding a critical element of the offense.
NLPA has been at the forefront of the effort to correct improper guilty plea proceedings and obtain justice for those who have entered involuntary guilty pleas. NLPA provides research assistance to counsel with regard to Pretrial, Sentencing, State Appeals, Federal Appeals, Post-Conviction Motions as well as several administrative services.
The Hawkins case demonstrates how NLPA can provide legal assistance to counsel in the preparation of appeal arguments attacking the validity of guilty pleas, as well as how NLPA can assist individuals in their fight to overcome the hurdles faced by individuals who have regrettably pleaded guilty, and who are further challenged with overcoming appeal waivers.
When a defendant is convicted and sentenced, unless having waived his right to appeal, he or she normally then would proceed to the court of appeals for filing an appeal. Similarly, if a litigant is not happy with a decision made by an agency such as the ICE Department of Homeland Security in deportation cases, usually they may file a petition for review by the Board of Immigration Appeals to appeal the decision.
In criminal cases, a defendant may appeal the verdict if he or she is convicted at trial. Incidently, the government may not appeal if the defendant is found not guilty. However, either side in a criminal case may appeal with respect to the sentence imposed upon the defendant. Regardless of the nature of the case or the issues involved, when filing an appeal it is important to have a legal team in place that can thoroughly research the case to prepare the strongest appeal possible.
When filing an appeal it is important to keep in mind that only issues which can be addressed on an appeal must have been raised in the lower court previously and that new issues cannot be raised in an appeal if the lower court did not have a chance to hear them. If you feel you have issues that were not presented in the trial court record that may be able to help you, NLPA provides various legal services and can assist your counsel in the preparation of a post-conviction motion to raise those arguments.
A good appeal will start with a properly argued case at trial and sentencing. Filing an appeal is a critical stage of a case that can assist in withdrawing pleas (if appropriate), overturning convictions, and reducing sentences. When filing an appeal it is important that counsel reviews the issues closely to ensure that the proper strategy is requested to avoid any outcomes that may create a worse situation than the defendant is already in. After all, you do not want to risk appealing your case only to then be exposed to more time than you were sentenced to!
The federal courts in the United States are divided into 13 judicial circuits. In addition, each state has various appeal courts for their divisions. If you have a state case and are not sure which jurisdiction the appeal needs to be filed in, this information can be verified by visiting the court’s website for where the trial or sentencing was held in your case or by calling that Clerk of Court’s Office.
NLPA has the experience in all jurisdictions to assist counsel in a properly researched and written appeal brief so that when you are filing an appeal you can rest assured you have left no stone unturned. Contact NLPA today for more information about criminal appeals and how we can help!
Do You Have A Loved One Who is Incarcerated In The Bureau of Prisons And In Need of Prison Medical Care?
If you are suffering from a serious medical problem and if the Bureau of Prisons is neglecting to provide you with the medical care which you so desperately need, NLPA can assist your attorney in pursuing a court order that the Bureau of Prisons provide the proper medical care or a medical furlough so you can receive private medical treatment “on the street” from your own physician.
There are two ways in which a federal prison inmate can obtain medical treatment:
Administrative Application For Medical Furlough – Pursuant to Bureau of Prisons Program Statement 5280.4, the Attorney General of the United States has delegated the authority to grant furloughs under Title 18 United States Code Section 4082(c) to the Director, Bureau of Prisons (28CFR0.96)d. Title 18 USC 4082 applies to inmates whose offenses occurred before November 1, 1987. For inmates whose offenses occurred on or after November 1, 1987 the statutory authority for furloughs is found in Title 18 USC Section 3662 of the Comprehensive Crime Control Act. The authority to approve furloughs in the Bureau of Prisons institutions is delegated to the Warden or the Acting Warden. Pursuant to BOP Program Statement 5280.4 the Warden may approve a furlough for purposes of obtaining necessary medical, surgical, psychiatric or dental treatment not otherwise available.
Court Ordered Medical Treatment –
(a) Court Ordered Medical Treatment – if the BOP either fails or refuses efforts administratively to receive proper medical care, the next step is to have counsel file a motion in court asking the court to order the prison to provide you with proper medical care.
(b) Motion for Medical Furlough – If the prison fails to comply with the court’s order to provide you with medical care, it is possible to obtain a medical furlough as the result of the order of a federal court. This usually must be done, after an inmate has exhausted his administrative remedies and the Bureau of Prisons has decided to deny a furlough. However, in the case of a life threatening condition, it is possible to ask the court to allow you to bypass the administrative remedy process.
If you would like to know more about Prison Medical Care and how NLPA may be able to assist your attorney with your case, contact our office today.
Have you been convicted of a crime you did not commit or are you considering having case study research completed in an attempt to seek further relief in your case?
If you have ever been convicted of criminal charges and/or imprisoned, the entire process can be overwhelming on you and your loved ones. There may be a lot of confusion your case, how the legal system works, the penalties involved, or you may be wondering what you can do with your case at this point. Hiring a criminal defense team who has the confidence and experience to aggressively represent your interests is essential to your case. At National Legal Professional Associates, we have the experience and dedication necessary to bring your case to a successful conclusion.
NLPA can assist in the preparation of a case evaluation that will outline for you, your attorney, and your family potential issues that we believe could be raised in a post-conviction motion to assist you in pursuing post-conviction relief. The case evaluation will include personalized case study research concerning the issues that apply as well as a factual statement of your case, a review of the sentencing guidelines, a summary of procedural sentencing defects, possible ineffective assistance of counsel, and a complete review of the entire transcript of the legal proceedings in your case. The case evaluation would address not only court action available in attempting to reduce the sentence you received or overturning your conviction but, it would also address potential alternative remedies that may be available to you such as Expunging, Sealing or Overturning prior convictions, Pardon or Clemency applications, and New Rules of Evidence that may be available for out of time situations.
If you are interested in learning more about Case Evaluations and case study research, contact NLPA today!
Although generally reserved for individuals who have not been convicted of a crime, certain states permit offenders to apply for expungements after a specific amount of time has passed from the completion of their sentences, provided they were not convicted of a crime that fell under a list of certain enumerated crimes. While there is no uniform process known as expungement, it is commonly accepted that the purpose of expungement is to conceal criminal records from the public.
Expungements are based on the premise those with criminal records an individual will have trouble reingrating into society and may face barriers from participating in public life unless they have a legitimate means of being able to honestly deny that they have ever been charged with a crime or possessed a criminal record. As a result, most states permit individuals who have had their records expunged to answer in the negative if asked whether they have been arrested or charged of a crime.
In states where expungement is granted after a conviction, the severity of the crime will play a determinative role in whether or not expungement is possible. States which prohibit the expungement of convictions (before a pardon is obtained) will often contain restrictions depending on the process taken to complete the case without a conviction.
The practical effects of expungement remain questionable when considering the number of people who can still access criminal records even after they have been expunged.
Although guidelines are state dependent, typically all records on file within a court, correctional facility or law enforcement agency concerning a person’s apprehension, arrest, detention, trial or disposition of a crime can be expunged.
While thirty-nine state codes contain provisions relating to the procedures for DNA samples and profiles of individuals in these circumstances, the burden is often placed on the individual to petition the court for the expungement of these records from state data banks.
For additional information about expunging convictions and how NLPA may be able to assist your counsel with your case, contact us today.
California Three Strikes Law Amended
Relief at last is available for many California defendants who are serving life sentences under the Three Strikes Law. Recently, California enacted Senate Bill 9 into law, whereby criminal defendants who were under age eighteen at the time of their crime and who were sentenced to life in prison without parole can ask the sentencing court to review their cases and consider permitting parole after serving twenty-five years in prison. Election Night 2012 provided another sentencing reform breakthrough in California with the passage of Proposition 36.
Proposition 36 serves to reform the draconian “Three Strikes” law. The California Three Strikes Law required judges to sentence third-time offenders who have committed two previous violent or serious felonies to twenty-five to life prison terms for the commission of any third felony, regardless of the severity of the third felony. Although twenty-four other states possess Three Strikes laws, only California’s law permitted the third strike to be for any type of felony. However, with the passage of Proposition 36, a life sentence can only be issued for a third felony when the third felony conviction is considered “serious or violent.” Offenders who were sentenced to life, despite the fact that their third felony was not serious or violent, can now seek sentence modification.
However, contrary to the rhetoric of those opposed to Proposition 36, the amended sentencing law will not lead to “property crimes going up all over the state, and in very short order.” The amended law continues to impose a life sentence penalty if the third strike conviction was for “certain non-serious, non-violent sex or drug offenses or involved firearm possession” and for third strike felonies that are “non-serious, non-violent third strike if prior convictions were for rape, murder, or child molestation.” Clearly, defendants deemed dangerous will not be loosed upon society.
In practical terms, the amended law will permit the approximately 3,000 convicted felons who were, as of November 2012 serving life terms under the Three Strikes law whose third strike conviction was for a nonviolent crime, to be eligible to petition the court for a reduced sentence. It has been estimated that these reduced sentences could save California, and its taxpayers, between $150 and $200 million per year.
If you would like to learn more about the Amended California Three Strikes Law and the legal services provided by NLPA, contact us today.
Often, NLPA is contacted by attorneys who represent federal criminal defendants who are in need of sentencing assistance, given the wide array of arguments that can be made in favor of sentences below what is called for by the United States Sentencing Guidelines.
The case of United States v. Tarsha Brooks, case number 2:06-cr-00126-JES-DNF-1 (M.D. Fla) demonstrates how NLPA can assist counsel in the preparation of multi-faceted sentencing research that challenges the Guideline recommended sentence at sentencing, and also after a sentence has been issued.
Brooks’ family hired NLPA to provide legal services to assist his counsel, Charles Murray, with research and argument drafting in an effort to persuade the court to sentence him to the lowest possible term of confinement.
In staying abreast of relevant sentencing law, NLPA was at the forefront of conducting research once the Fair Sentencing Act was enacted.
The Fair Sentencing Act replaced the 100 to 1 crack to powder cocaine sentencing ratio with an 18 to 1 ratio (28 grams will trigger a 5 year mandatory minimum and 280 grams will trigger a ten year mandatory minimum) under 21 U.S.C. ‘841.
Although the law was not specifically stated to be retroactively applicable, NLPA assisted in the preparation of a motion for reduced sentence in Mr. Brooks’ case. The district court agreed with NLPA’s position, and reduced Mr. Brooks’ sentence from 140 months incarceration to 120 months incarceration saving Mr. Brooks’ 20 months in prison.
Mr. Brooks also assisted in obtaining justice. Mr. Brooks provided substantial assistance to law enforcement officials in the investigation of criminal activity. As a result, the government filed a motion for reduced sentence pursuant to U.S.S.G. ‘5K1.1 and Federal Rule of Criminal Procedure 35(b) on Mr. Brooks’ behalf. Mr. Brooks’ total offense level was reduced to 21 and his Criminal History Category was reduced to V, resulting in a Guideline range of incarceration of between 84 and 105 months. On September 12, 2013, Mr. Brooks’ sentence was reduced to 84 months incarceration, which represented a sentence over 100 months less than the original Guidelines recommended sentence in Mr. Brooks’ case.
The bottom line is that just because an individual faces an overwhelming Guideline sentence does not mean that all attempts at securing a lesser sentence must be abandoned in deference to the Probation Office or the federal prosecutor. For more information about the legal assistance that NLPA can provide to your counsel, contact us today.
For the past 25 years the research staff at National Legal Professional Associates (NLPA) has been providing exceptional research and writing legal assistance to lawyers that is affordable, fast and reliable. We assist the lawyer who does not have the luxury of having a full-time staff of research attorneys in the law library down the hall to whom he or she can assign research and writing projects. We work at the direction and under the supervision of the attorney in charge of representing their Client. By utilizing NLPA, the supervising attorney is left to do what he does best—represent their client!
What Can NLPA Do to Help You?:
1. Improve your research product. NLPA’s staff has for 25 years been known for providing cutting edge arguments containing the latest case law. Our legal data base is one of the most complete in the country. Each research assignment is completed by a team of experienced licensed attorneys.
2. Get control of your life. Many attorneys have told us that they use the assistance of NLPA to be able to spend time with their family, reduce the need to work on the weekend or at night.
3. Cost effective. NLPA’s hourly research rate is less than that of the supervising counsel so it is cost effective and helps increase your earning potential.
4. Improve your Winning Track Record – Using NLPA’s research staff to prepare Motions and Briefs for your clients makes you part of the most successful research and writing legal team in the country. Check the “Research Results” section of our website to see the overwhelming success rate NLPA has helped counsel achieve.
If you are interested in learning more about how NLPA can help you, contact NLPA for a no cost no obligation communication with one of our attorneys.
As anyone who has had contact with the federal criminal justice system can attest, the sentences issued therein are little short of draconian. Fortunately, there exists several methods by which an individual can obtain a sentence reduction. Have you ever wondered how to get a sentence reduction? Perhaps the easiest way to obtain a reduced sentence is to cooperate with the government. If an individual assists the government in the investigation or prosecution of another person who has committed an offense, said individual is eligible for a sentence reduction pursuant to U.S.S.G. § 5K1.1. The usefulness of the assistance provided will determine the level of the sentence reduction. Importantly, a sentence can be reduced under § 5K1.1 at any time, even after a defendant has already been sentenced. However, the motion must be filed by the government. A defendant, except in rare circumstances, will not receive relief under § 5K1.1 absent a government motion.
However, a defendant can still receive a reduced sentence based upon cooperation with the government, even absent a government motion, if such assistance is provided prior to sentencing. The defendant can raise his assistance as a factor to be considered in receiving a reasonable sentence under 18 U.S.C. § 3553(a). As the United States Sentencing Guidelines are no longer mandatory, a defendant is free to raise any mitigating factor at sentencing that could lead to a reasonable sentence under 18 U.S.C. § 3553. Common mitigating factors include rehabilitation since incarceration, age at time of release, substance abuse difficulties, familial responsibilities, and a difficult childhood.
If an individual seeks a reduced sentence after being sentence, he can typically pursue several avenues. The first is to file a direct appeal, claiming that the sentence was issued in error. Issues raised in a direct appeal must be evident from the trial court record. Should an individual wish to raise an issue regarding a sentencing reduction that is not evident from the trial record, he can file a post-conviction motion pursuant to 28 U.S.C. § 2255. Issues such as ineffective assistance of counsel at sentencing, the issuance of new and favorable sentencing laws, or facts rising since sentencing can give rise to viable post-conviction claims. For example, if a defendant provides assistance to the government in the investigation or prosecution of a another individual, but the government fails to move for a reduced sentence under U.S.S.G. § 5K1.1, the issue can be raised in a motion under § 2255.
A sentence can also be reduced if a Guideline utilized in calculating an individual’s sentence is later reduced. Title 18 U.S.C. § 3582 is a statute that provides an avenue for redress of sentencing errors in a federal court. A criminal defendant may move for a modification of sentence when he has been sentenced to a term of incarceration “based on a sentencing range that has subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant.” 18 U.S.C. § 3582(c)(2).