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Joseph
Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience:  I have 15 years experience in criminal litigation including several years as a felony prosecutor
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My friend pled guilty to a charge of possession of child of

Customer Question

My friend pled guilty to a charge of possession of child of child pornography on a plea deal where he was offered and received punishment of time served, a fine and court cost. Two months later he was taken back to court on the same charge for a hearing to correct errors at which time he was told he would have to register as a sex offender. My question is how can they do this, is this not a form of double jeopardy. This is Indiana and IC 35-35-3-3 states that: If the court accepts a plea agreement, it shall be bound by its terms. My friend did register under duress on the day of the hearing but later failed to register and is now in jail by making a plea of guilty on failure to register under duress and on the advice of his public defender attorney, to get another charge of possession of child pornography dismissed which he did receive. I believe that even though he made this plea deal the court violated his rights when they took him back to court and changed the terms of the plea agreement. The court also did not offer to allow him to withdraw his guilty plea before it effectively increased his punishment. Since registering was not a term of the original plea agreement, he should not have to register and charging him with such a crime appears to me to be a violation of his rights and the real error by the court. Is it not unlawfull for the court to increase ones punishment unless they have committed another crime?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Joseph replied 2 years ago.

Unfortunately, the legal system does not consider this to be a part of the punishment or to be a violation of double jeopardy.

 

Many years ago, before the sex offender registration laws were so prevalent, I represented an old high school friend of mine in a sex offense case. He was engaged in a consensual relationship with a girl who was just a couple years younger. He received a very lenient offer involving only probation and fines and he accepted the offer. Several years later, the state came back to him and told him that he needed to register as a sex offender.

 

This seemed unfair to me, especially since this was someone that I had grown up with. We tried to withdraw his plea, we tried an appeal and we tried arguing that the sex offender registration should not apply to him as his offense was prior to the enactment of the law. We lost at every level.

 

From the perspective of the law, the registration requirement is not a part of the plea or a part of any punishment. Instead, the registration requirement is meant to protect the public from people that have committed sex offenses, people that are considered to be a "high risk" for society.

 

I regret that my answer is unfavorable, but please understand that it would be unfair to you (and unprofessional of me) to provide you with anything less than a truthful response. As an attorney, I do not make the law, I only explain it and help navigate my clients through the system.

 

Please let me know if anything requires clarification.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 2 years ago.
Relist: Other.
I am sorry but I have to disagree with your assesment. I feel that my friend's rights were violated. Not only because IC 35-35-3-3 (e) states
that if the court accepts a plea agreement it shall be bound by its terms. I don't care what they consider it, it is punishment! Nobody can change the terms of a plea agreement without the consent of the defendant and that is exactly what happened. My friend did not agree to anything and he was not given the opportunity to withdraw his guilty plea, which is his right and he should have been allowed to plead not guilty and ask for
a jury trial. I think he should be entitled to Post Conviction Relief. I have considered filing a
Writ of Habeus Corpus on his behalf but looks like GB screwed that up. Be nice if someone could tell me how looking at a picture is a sex offense.
Expert:  Joseph replied 2 years ago.

As an attorney, I would love it if I always had good news for my clients. Unfortunately, that is simply not the reality of the situation. In fact, in nearly every legal situation, there will be a "winner" and a "loser", it's just the nature of our adversarial system.

 

I'm sorry that you disagree with my assessment, please understand that this does not make my assessment wrong. I suspect you came to this site to get an honest answer and because you were uncertain as to what the answer might be.

 

I am an attorney that has been practicing law for over 15 years. As I was working as an intern even before law school, I have about been working in the criminal field for nearly 20 years. I have handled hundreds of sex cases and dozens of registration cases. I have argued these issues at the trial court level, the appellate level and even at the state supreme court level. Trust me when I say that what happened to your friend has been argued, and lost, by hundreds of attorneys at every level of the justice system.

 

If you, or more appropriately your friend, decide to pursue some form of post-conviction relief, I will regrettably let you know that you will lose on this issue. While I know this is not the answer you want to hear (and I suspect you will be unwilling to click the "accept" so that I may be compensated for my efforts), you will eventually learn that I am correct.

 

The example I gave above about my friend was completely true. Please know that I agree with you, this SHOULD be considered a part of the punishment and a part of the plea. Unfortunately, you and I are not legislators and we don't make the law, we only live by it.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 2 years ago.

I know it is an up hill battle but I feel that I can win and you did not address my point that my friend was not given the chance to change his plea from guilty to not guilty when the court basically rejected the plea agreement by changing its terms. My friend was and is naive to law and court porocedures since this was his first time of being in any kind of trouble and it is the responsibility of the court judge to make sure that a defendant understands his rights, not just accept a nod or a yes because the defendant is scared and doesn't know what else to do or say. I also feel that my friend's court appointed attorney misrepresented him by not telling him that he could change his plea. The regristing as a sex offender aside, if my friend were somehow able get a new trial on his original charge is it not correct that the court could not increase his original punishment if found guilty and if he were found not guilty would negate registering and the class D felony for failing to register? My friend got a year and a half in the county jail,

he will do 9 months if all goes well and I will spend up to 9 months trying to get that sentence vacated and I will spend whatever time it takes to get the sex offender laws repealed because they are vague, inconclusive and above all stupid!

Expert:  Joseph replied 2 years ago.

It is legally possible, thought quite difficult, to withdraw a plea once the plea has been entered and the sentence has been handed down. The general burden is that the moving party must show some manifest injustice in the sentencing.

 

I know your immediate response will be that requiring him to register is, in and of itself, a manifest injustice. I suspect you know my response to that as well, the case law disagrees. Again, the registry requirement is not considered to be a part of the plea deal and, as such, is unlikely to provide any relief in a motion to withdraw the plea. Meaning, from a purely legal standpoint, the judge did not change the terms of the plea.

 

I don't believe you indicated when this occurred. That may be an issue as well as your friend may be time-barred from proceeding as well.

 

Back to your questions though.....

 

Yes, if he were successful in having the plea withdrawn, he would then be eligible to receive any lawful sentence. Meaning, if he were found guilty later, he could receive a more harsh sentence the second time around.

 

And yes, if later found not guilty, the registry requirements would be a nullity. The registry is only for those that have been convicted of relevant crimes.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

Customer: replied 2 years ago.
Relist: Other.
For Joseph,

I know it is an up hill battle but I feel that I can win and you did not address my point that my friend was not given the chance to change his plea from guilty to not guilty when the court basically rejected the plea agreement by changing its terms. My friend was and is naive to law and court porocedures since this was his first time of being in any kind of trouble and it is the responsibility of the court judge to make sure that a defendant understands his rights, not just accept a nod or a yes because the defendant is scared and doesn't know what else to do or say. I also feel that my friend's court appointed attorney misrepresented him by not telling him that he could change his plea. The registering as a sex offender aside, if my friend were somehow able get a new trial on his original charge. Is it not correct that the court cannot increase his original punishment if found guilty and if he were found not guilty would negate registering and the class D felony for failing to register? My friend got a year and a half in the county jail.

He will do 9 months if all goes well and I will spend up to 9 months trying to get that sentence vacated and I will spend whatever time it takes to get the sex offender laws repealed because they are vague, inconclusive, unconstitutional and above all stupid! IC 35-35-3-3 (e) is also a law and you are telling me that people are bound by lay but courts are not.
Expert:  Joseph replied 2 years ago.

Ok, let's get a little deeper into what precisely occurred....

 

I need a more thorough understanding as to how the plea was entered. Based on your most recent post, it sounds like this is what happened:

 

1. Your friend stepped up to the podium with his attorney to enter the plea

 

2. The attorney read the plea and your friend entered a plea of guilty

 

3. The judge then stated that the sex offender registry would apply

 

4. Essentially immediately thereafter, your friend and his attorney agreed

 

5. The sentence was pronounced, case closed

 

Is this all accurate? If not, please explain. This part may be crucial so please take your time and be as accurate as you can.

Customer: replied 2 years ago.

For Joseph,

 

This wa a hearing to correct errors in the original trial where my friend was given time served, a fine and court cost. Registering as a sex offender was not part of the plea agreement. My friend objected to the hearing and the procedure and did not plead to anything. This hearing was held on February 11, 2010, two months and one day after the original trial on December 10, 2009. This is from the actual court document. The defendant, by counsel, admits that under Indiana law, defendant must register as a sex offender, pursuant to the conviction entered in this case, dated December 10, 2009.

Defendant is so advised. My friend although advised continued to disagree with the hearing, the procedure and the outcome. He did however register (under duress) right after the hearing.

Customer: replied 2 years ago.

For Joseph,

 

This wa a hearing to correct errors in the original trial where my friend was given time served, a fine and court cost. Registering as a sex offender was not part of the plea agreement. My friend objected to the hearing and the procedure and did not plead to anything. This hearing was held on February 11, 2010, two months and one day after the original trial on December 10, 2009. This is from the actual court document. The defendant, by counsel, admits that under Indiana law, defendant must register as a sex offender, pursuant to the conviction entered in this case, dated December 10, 2009.

Defendant is so advised. My friend although advised continued to disagree with the hearing, the procedure and the outcome. He did however register (under duress) right after the hearing.

 

I sent this earlier, perhaps you didn'r receive it.

Edit

Expert:  Joseph replied 2 years ago.

Sorry for the delay, I spent part of the afternoon enjoying the weekend with my family. Regardless....

 

Your recent posts contains a couple bits of information that appear to be in opposition to one another. At least twice you mention the "original trial" but you also mention a "hearing" and a "plea agreement".

 

If he went to "trial", that means he was convicted by a judge or jury while, if he had "plea agreement", then there was no trial and he had a negotiated agreement with the prosecutor.

 

This is a very important point as his recourse is quite different between a trial or a plea. So, which was it, a trial or a plea?

 

Thank you.

Customer: replied 2 years ago.

Alright original trial for possession of child pornography 2 counts, pled guilty to count 1 count 2 dismissed on plea agreement. Punishment: time served, fine and court cost. Accepted by the court and the defendant. Case closed>

 

2 months later a hearing was held to correcr errors at which time my friend was told he would have to register which clearly altered the terms of the plea agreement and in essence said plea agreement in original trial not accepted. If the plea agreement is not accepted, the plea cannot be accepted.

 

New trial held on February 16, 2012 for another charge of possession of child pornography and failure to register and his court appointed attorney advised him to plead guilty to failure to register to get the possession charge dropped, which he did and accepted one and one half years in county jail. Court adjourned.

 

His attorney in doing this told my friend he had a good chance of getting the failure to register charge thrown out because he felt he was misrepresented at the hearing to correct alleged errors in his first trial in 2009.

 

Hope you enjoyed your time with your family. I am not in a rush, I am trying to find out as much as I can with you to determine if I should hire a local attorney.

Expert:  Joseph replied 2 years ago.

Putting the pieces of the puzzle together, I believe I know the answer. However, as this is important, I want to be certain on this issue....

 

Your friend entered a plea on the first case on December 10, 2009 and was sentenced on that case on February 11, 2010.

 

He then had a second case. He entered a plea and was sentenced on that case on one day, that being February 16, 2012.

 

Is this all correct?

 

Thank you.

Customer: replied 2 years ago.

No, He was sentenced on the first case on December 10, 2009.

Time served, + fine + court cost.

 

His plea agreement was amended at a hearing on February 11, 2010 to include registering as a sex offender as it was not a part of the origional plea agreement.

 

His most recent case was decided by plea agreement as I previously stated on February 16, 2012. Failure to register, what we are trying to show is that he should not be required to register, that his constitutional rights were violated and that he was denied due process of law.

Customer: replied 2 years ago.
Waiting for your response. I will be offline until after 5 PM Monday 03/26/2012
Expert:  Joseph replied 2 years ago.

Sorry for the delay, Mondays are always busy at my office. Additionally, I've been doing some online research to better answer your questions. As to that....

 

I found a case with some similar facts. It is not identical to your friend's situation but it is close. The case is here, http://www.in.gov/judiciary/opinions/pdf/03100601ewn.pdf. As you can see from the case, that defendant had not yet been sentenced and he had a viable and new defense that came up prior to his sentencing.

 

At the same time, it does contain some language that might be helpful to your friend's situation. In that case, the court overruled the trial court, withdrew the plea and sent the case back to the trial court to begin anew.

 

As a note, here's the statutory language to which I've been referring and taken from the case in the link above:

 

Indiana Code Section 35-35-1-4(b) states the applicable standard when a defendant pleads guilty pursuant to an agreement with the State and then requests to withdraw the plea:

After entry of a plea of guilty . . . , but before imposition of sentence, the court may allow the defendant by motion to withdraw his plea . . . for any fair and just reason unless the state has been substantially prejudiced by reliance upon the defendant's plea. . . . The ruling of the court on the motion shall be reviewable on appeal only for an abuse of discretion. However, the court shall allow the defendant to withdraw his plea . . . whenever the defendant proves that withdrawal of the plea is necessary to correct a manifest injustice.

 

As you can see, it uses the "manifest injustice" language I mentioned earlier.

 

I also came across an article that discusses a case with some similarities to your friend's situation. The article can be found here, http://www.theindianalawyer.com/attorney-must-register-as-a-sex-offender/PARAMS/article/27284. In that case, the plea agreement specifically stated that the defendant would NOT need to register as a sexual offender. However, when accepting the plea, the judge informed the defendant that Indiana law requires him to register as an offender and sentenced him accordingly.

 

While I pointed out that the first case in this box provides some helpful language, I will reiterate what I have been stating all along, I believe that the odds of success for your friend are extremely low. He should proceed with an appeal if he desires, I would just caution him to do so with his eyes wide open.

 

 

Also, several customers have asked how they may direct a question to me in particular. If you specifically want me to assist you in your legal matter, just put "FOR JOSEPH" in the subject line and I will gladly pick up the question as soon as I am on-line.

 

Joseph, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 7279
Experience: I have 15 years experience in criminal litigation including several years as a felony prosecutor
Joseph and 6 other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Joseph,

 

I think you may be right and 9 months isn't the end of the world since you get 2 for 1 now. Maybe I will just write the judge some nice letters. Thanks for working with me.

 

I will send this then I will click the green button. I don't have a lot of money even this $60.00 wasn't easy but it was money well spent.

Customer: replied 2 years ago.
None at this time.
Expert:  Joseph replied 2 years ago.
I wish the best of luck for you and your friend!
Customer: replied 2 years ago.

Hi Joseph,

 

I was just going over are earlier conversation and notice in one paragraph of your replies that you said that the registration requirement was not part of the plea deal and that is correct, it was not, in fact it was omitted intentionally by the court. I think I may have told you this already but this was the words of the judge, I think we are all in agreement that this is a charge that doesn't require Mr. Stutzman to register as a sex offender, so I will not enter such an order. Not required to register at conclusion of December trial then brought back to months later and told he did have to register did in fact change the terms of the plea agreement!

Expert:  Joseph replied 2 years ago.

Welcome back! Did you have a new question or was the post just an "FYI"?

 

Thank you.

Customer: replied 2 years ago.

I misspelled two as in two months later, yes FYI concerning our previous conversation and of course I am looking for a response from you. I am not saying my friend shouldn't have to register, I am saying that they did it in the wrong way. Also the very prosecutor that agreed to the plea agreement with my friend, which included time served, a fine and court cost, nothing else, file the motion for the hearing to correct errors. There were no errors. The judge made his ruling and that should have been the end of it.

Expert:  Joseph replied 2 years ago.

Perhaps it is just late and I'm not comprehending correctly, however, I don't see a question in your post. Please provide a specific question for me.

 

Thank you.

Customer: replied 2 years ago.

The questions is the same, if the original sentence was time served, a fine and court cost and the case is closed. Then 2 months later a hearing is held to require my friend to register as a sex offender for 10 years. Why isn't this double jeopardy?

 

If the law states that if a court accepts a plea agreement, it shall be bound by it's terms, doesn't this hearing to correct an error conflict with the letter of the law?

 

 

Expert:  Joseph replied 2 years ago.

Maybe I'm missing something but I'm not seeing that this adds anything new from our discussion last month. Are you simply asking why this is not a double jeopardy claim? Or is there something else?

 

Thank you.

Customer: replied 2 years ago.
Forget it I will hire a real attorney, you obviously can't help me!
Expert:  Joseph replied 2 years ago.
As I stated above, I've been a "real" attorney for over 15 years. If you actually look to retain an attorney, I suspect their information will be amazingly similar to what was provided here. Best of luck to you and your friend.
Customer: replied 2 years ago.
X
Expert:  Joseph replied 2 years ago.
Please do not reply to this post. Each time you reply, it puts your question at the top of my que and requires me to respond before I can interact with other customers. Thank you.

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