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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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Experience:  Experienced and knowledgeable criminal defense attorney.
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Fighting a Felony charge

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To whom it may concern, A friend of mine recently was convicted of having supposedly “received stolen goods” at his pawn shop business in June of 2009. On August of 2010, the trial court jury found him guilty on one count of receiving stolen goods and not guilty on the other count charging the same offense. However, I would like to first explain in detail what happened that day. My friend first opened the pawn shop in August of 2008. Approximately 10 months afterwards, the Charlotte-Mecklenburg Police Department sent an undercover officer who worked in the Criminal Investigations Bureau. The officer in question was not in uniform but was dressed in ordinary clothing like any other customer; he brought two tools with him that he clearly stated that he wanted to sell. My friend purchased one of the officer’s two tools and following the due process outlined in the law regarding the procedures pawn shops must undergo when purchasing used items; he recorded the valid driver’s license number, home address and phone number. My friend also recorded all the necessary information as well as the tool’s serial number and model number as he has always done for every single item that he has purchased from customers. My friend even took the officer’s index fingerprint and signature warranting that the item in question belonged to him. A little more background about my friend, he is not as fluent in English as he would like to be as English is his second language. However, his English is not lacking in any aspects when running a day-to-day business. Nevertheless, my friend was not able to understand what this officer was saying as he was virtually muttering all his words while utilizing slang instead of common vernacular. If the officer had said to my friend, “I stole these items from someone else, would you like to purchase this?” then my friend definitely would not have purchased any of his items. As it is displayed on multiple CCTV cameras installed all throughout my friend’s store and on the video recorded from the transaction on the date in question, my friend was busy with taking and recording the officer’s information and he was not able to completely hear all that the officer was saying. My friend did not know or notice that this officer was trying to engage in negligent and irresponsible trading and he also conducted this entire interaction in front of multiple video surveillance devices. His surveillance cameras are always recording as obligated by law and also in case he could be of assistance in any ongoing investigations by the police. My friend did not receive a warning or notification prior to this officer coming to his business. In the by-laws set forth in North Carolina, if the value of the received item is less than one thousand dollars ($1000), then being charged with receiving stolen property should have resulted in a punishment of a misdemeanor rather than a felony. The sentence he received from the judge is 20 days in jail along with monetary obligations of $1503.50, 200 hours of community service within 150 days and supervised probation for 28 months. Unfortunately, his appeal to the North Carolina Supreme Court was recently denied and he is currently waiting to meet his probation officer in order to serve his sentence. I would like to know what can be done to help out my friend. My friend is willing to do whatever it takes to get this charge overturned. In addition, do you believe my friend can issue a counterclaim? From what I have described above, it was as if the officer was out to get my friend and being convicted for a felony seems too harsh for a typical misdemeanor charge. Any advice or suggestions to help out my friend will be much appreciated.  Furthermore, what are some ways my friend could find a good lawyer because the one he had was extremely unprofessional and completely neglected the case? Thank you!

Thank you for the opportunity to assist you!

In most states, the crime of receiving stolen goods means that a person takes possession of stolen goods from another person knowing or having reason to know that the goods were stolen. A person is guilty of a felony when the value of the goods received is over a certain amount, for example, $1,000 or greater, and a misdemeanor when the value of the goods is less than the felony amount.

Unfortunately, the jury must have believed that your friend had reason to know the goods were stolen, and they believed that the goods received were valued at $1,000 or more, since they and convicted your friend of at least one felony charge. Sadly, at this point, there are not a lot of options going forward. I will explain why.

You asked about the undercover officer and how his actions impacted the case. It is possible (but unlikely) that your friend could have used the the defense of entrapment. This has to be raised at or before trial. It does not sound like entrapment would have worked, however, based on what you've said. Entrapment is where the defendant says, "Yes, I did these actions, but the government actor (i.e. the police officer) coerced me into doing a criminal act that I would not have done otherwise." Entrapment is exceedingly difficult to prove, and really requires over-reaching and coercive conduct by the government. I don't see that in what you described. Besides, if the defense was not raised at trial, it is a lost cause at this point. Unfortunately, it appears that the officer simply provided your friend with the opportunity to commit a crime but did not otherwise coerce him into doing something wrong.

You mentioned your friend's appeal. Most people do not understand how an appeal works. Many people believe that when a person appeals his or her case to a court of appeals, the person gets a "do over." Not so. I mention this because you discussed the facts of your friend's case a lot in the background to your question. It sounds like you believe, and I tend to agree with you, that the facts of the case in no way showed your friend was doing anything wrong. Unfortunately, the jury did not agree with our side. They believed that the circumstances were such that your friend was guilty of the charge. It is extremely rare, if ever, that an appellate court (such as the North Carolina Supreme Court) will ever reconsider the facts of the case in the way you, your friend (or I for that matter) would like.

Courts of appeal only review for legal errors made before, during, or after trial. One generally does not appeal and say, "Wait a minute; that jury must have been crazy to believe the prosecutor! I'm innocent, I swear!" The appellate court does not substitute its own judgment in place of the judge or jury who heard the trial, since the appellate court judges cannot be present for trial, see and observe witnesses and judge their credibility, etc.

I can think of two ways to go forward from this point:

Habeas corpus
Your friend should looking into filing a writ of habeas corpus. He needs to get a lawyer to help him with this, as this area of the law is very complex. This is a different way to attack a person's conviction after trial on grounds other than the appeal did. It is called a "collateral attack." Your friend can attack certain actions (or lack thereof) taken by the prosecutors before or during trial. Your friend can also attack his trial attorney and claim that his attorney was constitutionally ineffective during the trial and that, but for the serious errors the attorney made, your friend would not have been found guilty. Just as in an appeal, there are certain time deadlines and procedures that have to be followed, or his habeas petition might be forever barred. If he wants to investigate this route, he needs to start immediately.

Pardon or clemency
The other solution might be to apply for clemency or a pardon from the governor of North Carolina. Again, this is a complex process and your friend needs an attorney for this as well. If your friend is granted clemency or a pardon, then his conviction would effectively be wiped out as if it never existed.

As for a counterclaim, there is no such thing in criminal law in the United States. That is a concept embraced in the civil area of our law, such as in contract law.

In order to find a good attorney, call the North Carolina State Bar at(NNN) NNN-NNNNand ask for a referral to an attorney who practices criminal appeals and habeas corpus law. If your friend wants to go the clemency/pardon route, he will need to ask for that as well. (Habeas and clemency are specialty areas of the law, and not a lot of people do those.)

I regret I am not able to provide you with a magic solution for this very real and troubling problem. However, if you have found my response helpful, please rate it positively so that I can receive credit for my work. Thank you for the opportunity to assist you. I wish you and your friend the very best of luck with this matter!

S. Huband, Esq. and 3 other Criminal Law Specialists are ready to help you
Thank you thank you!

I was notified that you rated my answer positively, and I am very pleased and gratified that I was able to help you. I sincerely hope the legal matters we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns about criminal law or traffic matters. Thank you very much for using this service, and thank you for the opportunity to assist you.

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Hello again!

I was notified that you rated the answer I gave positively, and I am very pleased and gratified that I was able to help you. I sincerely hope the legal matters we discussed turn out well.

Please ask for me in the future if you have additional questions or concerns. Thank you very much for the opportunity to assist you.

Take care,