Thursday, November 19, 2009

Felony Probation Violations

A violation of probation [VOP] can be very problematic for criminal defendants and their attorneys. A VOP is any violation of the conditions (or rules) of the probation. There are different types of probation, but I am referring to the many types of felony probation, i.e., gang, intensive, drug (T.A.S.C), or straight felony probation.

These different types of probation have different rules such as curfews, drug testing and counseling, obtaining a high school diploma or GED, anger management therapy etc. Along with monthly reporting to a probation officer and the payment of monthly probation fees, the list of rules one must comply with can be quite lengthy. But, probation is an alternative to prison. No one I have represented has complained too loudly about the conditions of their probation when the other choice is a lengthy prison sentence.

The most common type of probation violation I see is being arrested while on probation. Or in other words, "catching a new case". The probation department has discretion when filing a petition for violation of probation. If violated for a recent arrest, a defendant now has two cases to fight and sometimes in two different court rooms in front of two different judges. Additionally, most people arrested for a felony while on felony probation are held with no bond.

I have seen defendants violated the day after their arrest while others are not violated until after they lose their preliminary hearing. As a side note, parole violations work similarly.  Last winter I was hired to represent an 18 year old that allegedly broke into an automobile and was arrested for burglary. When I took the case the client was in custody at the county jail. I won his preliminary hearing and told his parents he would be released from custody sometime that day. I was not expecting a call from the parents the next morning asking why he was not released.

What I didn't know what that he was on felony probation and had been violated the day after his arrest. We defense attorneys don't often know our client's entire criminal background until the arraignment. In Illinois there is no formal discovery at the preliminary hearing stage. What discovery we do get is merely a sneak peak at the arrest report a few minutes before the hearing. It's not much, but at least we know some basics about the arrest.

The next court date for his VOP was not until a week later. He could not be released from jail because he was on a VOP hold. Although not paid, I appeared on his behalf at the VOP court date where the probation department withdrew the VOP petition and finally on that day, he was released from custody. Typically if the case that violated the probation goes away, so does the VOP.

A short time later I was hired to represent a man charged with two counts of delivery of a controlled substance, both class 1 felonies. The police were given a tip by a confidential informant that my client was selling drugs from inside a parked car. The police arrived to find my client sitting in his car talking to a young female. That was it. He was pulled out of the car, searched, and arrested. Both cocaine and heroin were allegedly found on him.

At his preliminary hearing the cop admitted no officer ever observed my client committing any crime; however, probable cause was found and the case was bound over. At the trial court level I filed a motion to quash and suppress based on no probable cause.

What I did not know was that my client was on probation, a fact he failed to disclose and was not noted in his criminal background. When I filed my motion the judge asked the State if they wanted to set the motion for a hearing. The assistant State's attorney declined, informing the judge they were electing to prosecute the probation violation. Not until that morning did I find found out he was already on probation. Now we have a problem.

A defendant is entitled to a hearing on a probation violation. But the standard of proof is preponderance of the evidence, or more likely than not. The standard of proof at trial, however, is beyond a reasonable doubt, or almost 100% sure. There is a huge legal distinction between these two. The State knew I had a good motion on the new case and thus chose the easy VOP route.

I had a 402 conference with the prosecutor and the judge. The judge told me he would rule against me at a hearing on the VOP. At least he was honest and upfront about it.

The client was on probation for a class 1 felony, thus he was subject to a prison term of 4-15 years on the prior case. But here is where it can get ugly: the judge could sentence a defendant to consecutive sentences on each case. 

A guilty plea or guilty verdict of a new felony while a defendant is already on felony probation exposes him to a prison sentence on each case but ran consecutively. For example, two 4 year sentences ran consecutively equals 8 years  (4 + 4 =8). In distinction, however,  are concurrent sentences which means the sentences are served at the same time. So in the above example, it would be a total of 4 years as opposed to 8. In the defense business, we always want concurrent sentencing.

The judge offered to PTU (probation terminated-unsatisfactory) the prior case and give my client 6 years on the new case. This in effect, ends the case for which he was on probation. That is, however,  a small victory because now he is only being sentenced on one case.
Today I was in court on a new case where there was also a VOP filed. My client was charged with being a felon in possession of a firearm. In this case the charge was a class 3 felony (2-5 years). However, he was on probation for a class 1 felony (4-15 years).

The new case might have been defensible by way of a motion to suppress. It was a case that could have been worked up. However, as mentioned above, the State could simply elect to prosecute the VOP. And why not? The burden of proof is lower and the prison term is longer in this case. 
I explained all of this to the client when I met him in the jail on a recent Sunday. He wanted to plead guilty. He did not want to sit in jail while I litigated his case. He did not want continuances. He wanted to cop out and do his time. It was clear I was hired to get him a deal. And so, I got him a deal.

I ended up getting his class 1 probation PTU'd and the minimum 2 year prison sentence on the new gun case. After you subtract the month he's been in the county jail, he is going to go to prison for around 90 days or even less.

1 comment:

  1. You sure know what youre doing!


Please feel free to offer comments and opinions. However, if you require legal assistance please call 312-504-4554 to speak with me personally.