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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27134
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My boyfriend was on probation in wyoming county pa for drug

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My boyfriend was on probation in wyoming county pa for drug paraphernalia for 12 months, he had a violation because he failed a drug screening which he tested positive for 10 different drugs the judge pulled his street time and he served 30 days , no he is incarcerated on a second violation for another failed drug screening but this time he only tested positive for 2 things and his probation officer stated it was just a small amount. He went back in front of the judge and the judge didn't give him an opportunity to even speak he just sentenced him to serve the remainder of his sentence which is 8 months.
The orginal charge stems from a phone call made by a family member to the state police saying that my boyfriend was threatening to kill himself and when he opened his front door there was 8 guns pointed at his head, the police asked him if had any guns it the house when he stated he did they asked where they were and he told them that they were locked in the gun safe, he was already in handcuffs and they asked for the keys and asked how to open the safe and when they opened it that is when they found the paraphenalia. This happened in December of 2011 and what i am wondering is could we go back and still fight the orginal charges and can he also appeal the sentencing for the violation due to the judge not letting him speak
Hi Jacustomer,

Unfortunately, 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.

On top of that, a defendant only has 30 days after his conviction to file a notice of appeal. If he waits longer than that -- and your friend has done so -- he loses most of the legal grounds for a possible appeal. Apart from technical ones that don't apply (illegal sentence, for example, or unconstitutional statute) the only way he can appeal after the notice period has expired is if he has newly discovered evidence which could not have been known to him at the time of the conviction. Your fact pattern has not got anything like that, and the other avenues of appeal are already closed.

As for the resentencing on the VOP, that, it would appear, could still be challenged if he wants to try it on due process grounds. He would need to talk to a post conviction lawyer to see how viable that will be. If he only has 8 months to run, he may find he's out again before the matter can even be decided, so it may not be worth the expense. But he needs to check that out.

I am sorry to be the bearer of bad news.
Customer: replied 4 years ago.

So the fact that he was under duress from having the guns pointed at him which is why he allowed the police into the house and allowed them to open the gun safe without a warrent or the fact that the reason the police were even called to begin with and that when they did enter the house was found not to be true, would not be grounds for an appeal this long after the conviction

Hi Denyell,

But that's not why he was violated! He was violated for dirty urines. So while I agree that he may have been treated heavy handedly here, I don't see the connection between that and either case.

If I'm missing something, please explain it. But he was given probation for drug paraphernalia and not for unlawful possession of a weapon. And then he was violated after more than one occasion with dirty urine.

So I'm not sure where the guns come in.

Customer: replied 4 years ago.

He was orginally convicted of drug paraphenalia, but the reason the police even found the paraphenalia was because they were called and told that he had loaded guns in his house and was threatening to kill himself which was the when the police first evacuated his apartment complex, surrounded and had 8 police officers standing on his steps, when they knocked on the door he looked out the peephole saw no one looked out his front window and saw all the cop cars, at that time he called the state police barracks to find out what was going on he was told to exit the house which when he did that is when he had 8 guns pointed at his head and was asked about the guns, he told the police where they were they handcuffed him entered his house , got the keys to his safe opened it and found the paraphenalia. They did not have a warrant to enter or search the home but because of being handcuffed and the shock of having guns pointed at his head, he did what he was asked to do. So because of him being under duress and because the police found the paraphenalia without a search warrent would that be grounds for possibly getting the charges overturned or would it still be to late to try. I understand about the probation violation but i'm still wondering about the orginal charge.

Hello Denyell,

Thanks for clarifying. Now I understand. However, now we get back to what I said in the first place.

When the police overstep their authority a defendant has the right to challenge that at special pre-trial suppression hearings. But a defendant gives up his right to challenge that and to confront the witnesses against him once he takes a plea. This was, as I said in my answer, something that the judge likely discussed on the record before your boyfriend took his plea.

But even if he didn't, it is now too late for an appeal on the those grounds. That would have to have been filed for within 30 days of the conviction. It is nothing, unfortunately, that can be done now. He is outside of the window of opportunity to complain about that.

I would love to be able to tell you what you want to hear, but it isn't the law and it wouldn't be true.

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