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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27436
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My girlfriend recently got sentenced to two years in prison

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My girlfriend recently got sentenced to two years in prison after her previous employer filed a claim against for a theft related case that went on for more than a year. She plead guilty per her laywer's suggestion. Her lawyer had presented to the same judge about 11 similar cases in the past that are either not as bad to worse yet the judgement for those cases where either probation or in combination with a 3 month jail term. Her lawyer questioned the judge of the inconsistency but was not given an explanation. Is there something that can still be done to get her out of prison?
gadude,

i do not know why your girlfriend was sentenced to two years in prison and others were given probation. I know nothing about her background, her previous criminal convictions, if any, about the circumstances of her offense, about her employer and type of theft-related crime this is, all of which would have had some bearing on what her offer would be. I do know, however, that after fighting for a year she chose to plead guilty and take two years sooner than risk trial. And unfortunately, once you give up your right to remain silent and take a negotiated plea, it isdifficult, nearly impossible after sentencing to take that back.

While, if not barred by time, your girlfriend could appeal on the basis that the sentence was unduly harsh or that the judge was arbitrary, the fact is, she agreed to this sentence. At the time of her plea, I am sure she was allocuted and made to answer on the record a list of questions wherein she stated that she was pleading guilty voluntarily of her own free will after being advised by counsel, knowing what rights she was giving up, knowing what her sentence was going to be, and doing so because she was guilty, and so on. These questions and answers will be used against her in an effort to deny her the relief she's requesting.

She would need to have a post-conviction (appellate) lawyer to raise the issue and a legal or constitutional basis (other than hindsight) for the appeal. And it would have to be made in timely fashion. It's not clear from your post when she began her sentence and whether the window of opportunity would still be open to her if she wanted to pursue an appeal.

You could find and talk to a post-conviction lawyer through your local state Bar Association's Lawyer Referral Service and speak to him in confidence and get an idea how viable her appeal might be. They have a one-time very inexpensive half hour consultation, with no strings attached. That is, you wouldn't have to hire him to do the appeal unless you wanted to.

Good luck.

___________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.



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Customer: replied 7 years ago.
Thank you for your answers. To answer some of your questions, she was sentenced last Friday, Feb 26, 2010. She has no prior convictions and decided to take the plea as her lawyer was fighting for a sentence similar to his previous cases, probation with 3 month jail term, possibly. The two years was what the plaintiff and legal representation pushed for. Her employer is a big company in their town having employees in the hundreds with the owner being a church pastor and financial contributor to a political party. From some of the info she had given me, the evidence the plaintiff started the case with was just the police report the arresting officer wrote stating she admitted to taking the money, which she denied saying. According to her the amount the plaintiff claimed that she took were paychecks she cashed for another employee using her own bank account who unfortunately who turned out to be either illegally here or not legal to work in the country and can not be found. Oddly enough, the plaintiff stated that 'all' employee records can not be found when her legal representation asked for them. I will or have her mom try to see a post-conviction laywer per your advice. Will this lawyer need to work with her previous lawyer at least in the beginning? Thank you very much!
gadude,

Thanks so much for the accept and bonus.

If your girlfriend was only just sentenced she should be able to bring an appeal without having to worry about timeliness. I can see why you would have reason to think that the judge might not have been impartial, though again, undoing a negotiated guity plea is not generally a winning propositon.

I doubt that the appeals lawyer would want to work with your girlfriend's previous lawyer. The new lawyer would certainly want to contact hin though as he is is going to need information from the files, and the first lawyer's personal take on any bias from the court might prove useful as well. The reason he wouldn't want to work with the first lawyer is that one standard basis for an appeal is the ineffective assistance of the lawyer who represented the defendant on the trial level.

I wish you good luck with this!

___________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Edited by FranL on 3/2/2010 at 4:48 AM EST
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