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Zoey, JD
Zoey, JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15087
Experience:  18 yrs of NYS criminal defense. Extensive arraignment, hearing, trial experience.
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My son was arrested on two separate occasions for selling illegal

Customer Question

My son was arrested on two separate occasions for selling illegal drugs resulting in two deli by charges. He was not in the business but was urged to obtain the drugs and sell him to what he did not know at the time was an undercover police officer. The boy who talked him into getting and selling the drugs did this on advice of the police to escape his own charges. 10G+ later my sins attorney had one charge dropped in a plea deal where he plead guilty to the other charge. Now he is facing jail time and will be labeled a felon. He is a college student who does well in school. He has ADHD and may be in the autism spectrum. When he was first picked up the police told him if he gave the name of his supplier he could go free. Three years later a swat team came to our home to make the arrest. I have asked his attorney if my sons background was looked into and the circumstances were explained to the judge perhaps he would receive lesser charges and receive probation His attorney tells us that is not an option and he must go to jail. I am sick over this given the ramifications it has for my sons future and the fact he was set up. Please advise if there is another tactic we should pursue. This case is in Fairfax Virginia. Thank you
Submitted: 7 months ago.
Category: Criminal Law
Expert:  Zoey, JD replied 7 months ago.
Hi,

Just to clarify, I'm not clear how many cases are involved here? What happened with the first one, where one felony was dropped? Did he take a plea on that matter? If so, to what and what was his sentence.

When he was arrested again three years later, was that for a different matter?
Customer: replied 7 months ago.
The two arrests were made approximately one week apart. They both occurred while my son was 19. It was more than two years later when the arrest was made which was overkill. They sent a swat team to my home when the arrest could have been done in a more subtle manner. Of course that is not the main issue. My chief concerns are
1. Michael was not in the business of selling drugs. Rather he was cajoled into doing this by an acquaintance who was given a desk if he produced a viable alternative. My son was young and naive.
2. When he was arrested the police told him they were more interested in who supplied him with the drugs to sell. If he told then he could go free. He told them the name and they let him go. No further contact until almost 3 years later when the arrest was made
3. My sons attorney advised him to plead guilty to one charge and they would drop the other charge. I do not see this as a victory as my son will still be a convicted felon. This is what we would like to avoid
4. My son is a good student and otherwise decent man. A felony co victim, as you know, would essentially ruin his chances for a productive life.
5. Can we at this point rescind the plea and proceed with a trial? Given the circumstances I am Hopi g for a lesser charge. He made a poor choice and must own it but he should not be made to pay the rest if his life for a naive yet stupid choice
Customer: replied 7 months ago.
PS. I apologize for incorrect words. I am typing on my iPhone and self correct has mangled my verbiage. I hope you are able to decipher them.
Expert:  Zoey, JD replied 7 months ago.

Hi,

No problem understanding your reply.

I'm sorry to hear about your son. Unfortunately, however, once a defendant has taken a plea and been sentenced it is almost impossible for him to overturn this conviction. That's because before a judge allows any plea to be taken, he makes a record which is designed to make that plea airtight. The judge will ask questions that makes him sure that the defendant understood all of the rights he was giving up, and that, among other things, he was not forced or threatened into taking the plea. It is only when he is confident that the defendant understands what he's doing and wants the plea that the judge allows it to happen. That record will be used against the defendant whenever he turns around later and claims he didn't know what he was doing or that the plea wasn't fair.

If he has not yet been sentenced on this matter, then he would have a better chance of getting his plea back. But judges tend to do this only under extraordinary circumstances, and "buyer's regret" isn't going to be good enough. He would have to come up with a legal reason that the judge will believe, such as the fact that his attorney never fully informed him of the consequences of the plea, (if that's true) for an example.

Otherwise, he would have 30 days after his sentence to file a notice of appeal and try to get it overturned from there.

As to the other points:

1) I understand that your son was not a major drug lord. Unfortunately, however, under our present drug laws, a drug kingpin charged with a sale can face the same charges as a person selling to support his own drug habit, or the occasional seller who makes an error in judgment.

2) Police always try to "turn" someone they arrest from drugs into cooperating and giving up other names. They promise him the moon, but in fact they have no power to decide who gets arrested and who doesn't. The prosecutor controls that and doesn't take orders from the police. Police, unfortunately, are able to lie like that. The Supreme Court has established that it's okay for them to deceive in order to get information about crime.

3) No argument here. One charge is better than two, but a felony record is a felony record.

4) No argument here either. Some people do manage to transcend felonies. I even know some who went on to become professionals. But it's a much longer and harder road to personal and/or financial success.

Understand one thing: the prosecutor dropped one charge for purposes of a disposition, meaning that if he gets his plea back, he goes back to square one. He will be facing two felonies again and will have to beat both of them to do as well as whatever his present deal is. I say that because in my experience, once you go against the prosecutor on one agreement, he is not going to give him another plea. That means he'll have to try two cases.

He may have things to work with on the case, as they did wait 3 years to come after him, and that may give his lawyer some mileage, but there are never any guarantees when it comes to trials. The only guarantee the system does give you is in a negotiated plea agreement.

I realize that very little of this is what you want to hear and I am very sorry not to have better news to give you.

Customer: replied 7 months ago.

Thank you for clarifying the situation. I have one last question. Michael
is to make a plea in a few weeks. At this point his father and I are
considering having him not plea to the one felony and taking the case to
trial where pertinent information can be introduced to, hopefully, prevent
him from becoming a convicted felon. The evidence that we think is
pertinent:
1. The fact he was not "in the business" of selling these drugs, and the
only reason he pursued this is that his acquaintance cajoled him to make
this sale (as encouraged by the Fairfax County police so this kid could cut
a deal)
2. He is an excellent student, with a future that is about to be destroyed
if he is convicted of a felony
3. He has ADHD and suffers from bouts of depression

I am not sure if any of this will matter to a judge/jury but we are
desperately trying to avoid the felony charge. Jail time is likely
inevitable, but will not be as devastating as the felony conviction.

Many thanks,

Margaret

Expert:  Zoey, JD replied 7 months ago.
Hello Margaret,

Last post, I got the impression he'd already taken a plea. I'm pleased to hear that he hasn't. If he's not happy with the terms of the plea being offered, I agree that he shouldn't be so quick to take it. Sometimes, just by dragging the case out towards trial, he can wear down the prosecutor once the prosecutor loses interest in the case and then get a better disposition down the road than what is being proposed now.

Was he ever offered Drug Court or Mental Health Court for this? These are two specialty courts where if he successfully completes the program he could get his felony dismissed. Drug Court is for those who are selling because they have a substance abuse problem. Mental health court is for those who have low self-control because of a mental health issue. In both instances, the defendant is put through a rigorous form of court mandated programs and supervision, but at the end, if he does everything the way he should, the felony gets dismissed.

It may be too late for an option like that but perhaps not if either one of them would fit his background and his lawyer argued for it.

In terms of your trial strategy, in going to trial with the defense you are suggesting, you are essentially asking for a jury nullification. That is, you're saying that he's guilty but with an excuse. An excuse is not a legal defense, but sometimes, if the defendant and the situation are very sympathetic, a jury will ignore the law and the judge's instructions and simply acquit. They are not supposed to do that, but infrequently it can happen. It's a very risky strategy, however and can be costly.

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