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RobertJDFL
RobertJDFL, Lawyer
Category: Criminal Law
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My fiancé felt bad for someone he knew and let her move into

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My fiancé felt bad for someone he knew and let her move into one of his spare bedrooms for $200.00 a month. She had her own room. One night he was hungry and asked if she wanted to go eat and told her it was just as friends. Drinking was involved. She had more than she should have. When they got home she tried to get him to sleep with her. He had been texting and she got mad, grabbed his phone. He told her he wasn't gonna fight and argue with her and went to bed. 2 hours passed and she got even madder. Instead of going to bed herself she entered my fiancé's bedroom and started to hit him in the head. He is ex army and defense mode took over. He didn't wake up until he heard her Hollar. He woke up enough and realized what was going on. He ended up breaking 3 ribs and doing something to her jaw. She lied on the police report and slent 10 days in the hospital. The judge he got didn't even know what PTSD is and sentenced him to 3 years. He did nothing but protect himself and it was instinct. She admitted it was her fault in court. He was told to take a plea bargain instead of going to trial. His family and I don't know who to turn to for help on getting it reduced or if we even can.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  RobertJDFL replied 1 year ago.
Thank you for your question.

It's a longshot, but what your fiance would have to do is file a Petition for Post Conviction Relief alleging ineffective assistance of counsel under Rule 32 of the Arizona Rules of Civil Procedure. Thousands of such petitions are filed in Arizona each year, but few are granted, the reason being, it is very difficult to meet the high burden of proof set by the court.

In order to legally meet the standard of proof for ineffective assistance of counsel, the Defendant must show that not only was the attorney ineffective, but that the outcome of the proceedings would have been different had the attorney acted (or not acted) differently. For example, there have been capital punishment cases in Texas where attorneys slept during portions of the trial, and the courts there have found that the attorneys conduct, while highly inappropriate, would not have changed the outcome of the trial!

It isn't sufficient to complain that the trial-level attorney didn't interview enough witnesses, for example. The defendant must instead demonstrate to the Judge exactly what those witnesses would have testified to under oath and that the result of their testimony would have made the defendant's case turn out much better. It isn't sufficient for a successful Rule 32 for a defendant to state that his lawyer threatened him to accept a plea bargain. Attorneys are permitted, under the ethical rules of conduct which govern their behavior, to strongly advise a client to accept a plea agreement based upon the likelihood of conviction if the person were to go to trial. For example, an attorney is permitted to say, "You need to accept this plea; if you don't sign it, you will be convicted at trial and will serve a lot more time than what is being offered in the plea bargain."

If the conviction and sentence is based on a plea agreement, the only relief the court can grant a defendant is to set the plea agreement and/or sentence aside. At that point, the case will start over with all original charges reinstated against the defendant. There is no guarantee that your fiance will receive a better plea offer or even the same offer, so they need to know that even if the PCR is granted, that they could receive a greater sentence.

Finally, you need to know two things. Arizona law says that a Notice of Filing a Petition for Post Conviction Relief must be done within 90 days of sentencing. If it is past that time, the petition cannot be filed. Furthermore, he is entitled to only one PCR to be filed, so it is imperative that an experienced appellate attorney research his case carefully so that any and all issues may be raised in the PCR.

Please let me know if you have any follow-up questions or need any clarification, I am here to help.
Customer: replied 1 year ago.
If its past the 90 days does that mean there is nothing he can do. The girl lied on the police report and had been to prison for killing her child and she is the one walking around free while he is locked up. He was told by the lawyer to take the plea cause going to trial could get bad and get a longer sentence. He was told parole or maybe a year and he got 3 years. Is that how pro bono works?!!
Expert:  RobertJDFL replied 1 year ago.
You cannot file a Petition for Post Conviction Relief after 90 days, correct. That said, it may still be worth you speaking to a criminal defense lawyer in your area to see if there are any other available options for your fiance - I unfortunately do not see any.

As for the case itself, it's not fair of me to comment. I'm not familiar with the case outside of the limited details you have provided. I have seen no transcripts and do not know what evidence the prosecutor allegedly had. I can tell you that if his public defender recommended that your fiance take the plea, then he or she honestly felt like it was in your fiance's best interest to do so, rather than taking the matter to trial --but your fiance also had the right to decline if he wished to do so.

Additionally, ultimately it is the judge who determines sentencing. Thus, even if the public defender believes that a sentence will be lower, and even if the prosecutor asked the court for probation or up to a year in jail, so long as the judge sentenced your fiance in accordance with sentencing guidelines, that would not be unlawful.

I realize this is not what you wanted to hear, and I apologize. However, it would be unethical of me, and unfair to you, to be less than truthful with you.
RobertJDFL, Lawyer
Category: Criminal Law
Satisfied Customers: 10275
Experience: Experienced in multiple areas of the law.
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