Tuesday, October 5, 2010

A Bad Case: Felony Probation & A New Felony

I have written about how problematic it is when a client is on felony probation and picks up a new felony. It's probably the most frustrating set of circumstances I deal with regularly.

Back in June I was hired to represent someone in this exact situation. He was on probation for a Class 4 felony involving possession of cannabis. A few months into his probation, the police obtained a search warrant for his home. When the cops busted in the client told them he had a little bit of weed. He also told them where it was.

I have had clients in the past that told the cops what they had and where it was when faced with 12 officers that just blew the door off the hinges. They are cooperative so the house isn't torn to pieces during a search.

If you have never seen pictures of a house that police officers have searched, you might not understand. But assume a tornado blew through the house and threw stuff everywhere and you will be close to picturing how it looks after a search warrant has been executed. It's nasty. And disturbing.

Despite the client's cooperation, the police decided to turn his house inside out and then upside down. They naturally found the weed. There was 11 grams of it. That would normally be a misdemeanor amount, but they charged possession with intent to deliver, thus bumping it up to a Class 4 felony.

Also found were two .22 caliber bullets and in a closet in a bedroom a random rifle bullet.

Uh-oh. Houston, we have a problem.

Convicted felons in Illinois are prohibited from possessing firearms and weapons. That's pretty obvious. But ammunition is prohibited as well. These three rounds of ammunition brought an Unlawful Use of a Weapon or Ammunition by a Felon count. It's a Class 3 felony, subject to 2-5 years in prison.

The client denied knowing about the ammunition. And based on where it was found, I believe him. And he's not the only adult male in his home. On top of that, no weapons were found and the client has no weapon cases in his background. In fact, the cannabis case he was on probation for was his first felony. He's in his mid 30's, so clearly not a career criminal or some gang banger.

Did he violate his probation? Yes. He told the cops the weed was his. Not much I can do with this case regarding the probation violation. The only shot this case had was if the search warrant was bad. It wasn't. Search warrant cases are very hard to beat. There's an assumption they are valid since a judge approved the warrant. A special hearing to challenge a search warrant has to be requested. They are called Frank's hearings. And again, the defendant has to request and be granted one. They are not like normal suppression hearings.

I have filed one Frank's motion. The State was given a continuance to file a written response in objection to my motion. The prosecutor also wanted to argue her response but didn't show up to do so when it was filed. I withdrew my motion, demanded trial, and got a not guilty. But I digress. Totally.

Back to this case...on the last court date I had a 402 conference with the judge and the State. In a 402 conference, the judge is told about the case in the light most favorable to the State. The defendant's background is also discussed and I can offer mitigation but not really argue about the facts of the case.

I wanted the same deal I got for my last VOP client. I wanted to either plead guilty or have a finding of guilty on the VOP in exchange for a sentence of time considered served. The client has been in the county jail since mid May. I also wanted probation to continue and for the new case to go away. Had I gotten this deal, the client would have walked out of the county jail and right back on probation.

Given the lack of seriousness of either case, this seemed sensible. 3-4 months in the county jail isn't a picnic.

The judge didn't see it my way. He offered to PTU and give him the minimum of 2 years on the new case. PTU means, Probation Terminated Unsatisfactorily. And that's right, 2 years in prison for three rounds of ammunition.

I wasn't happy.

The client asked about trying to beat the new case. Then I had to explain the State elected to prosecute the VOP since the burden of proof is merely preponderance of the evidence. And here's where it got really messy and confusing.

For VOP's the defendant gets a hearing at a much lower standard of proof. New cases, obviously, bring trial rights and the beyond a reasonable doubt standard. It's pretty easy to see why the VOP is normally the route the State goes. It's just easier to win and send Mr. Defendant to prison.

There were a couple of issues the client and I discussed in an attempt to make his situation a little better. He did not want to plead guilty to the Class 3 UUW by felon charge. And I understood this. I asked the State if he could plead to the Class 4 possession of cannabis with intent to deliver count and still do the 2 years. The State refused.

Then I thought about proceeding to a VOP hearing. This way he would be subject to sentencing on the Class 4 felony he was already on probation for. He wouldn't have to plead guilty to the Class 3 UUW by Felon charge for the bullets. This was attractive on the surface, at least.

At a VOP hearing, this was a dead loser. But it was risky. The judge could give him up to 3 years (sentencing range for Class 4 felony is 1-3 years) rather than the 2 years offered at the 402 conference. But the new case was still lingering and the State would have a few options.

Regarding the new case, the State could be happy with the sentencing on the VOP and dismiss it. They could burn it in aggravation in the hopes the judge would give him 3 years. Or they could just proceed with that case and make us fight it.

At trial, I explained to the client that the new case was probably a loser on the weed (State would also need to prove intent to deliver) but that we might win on the bullets. So even if we lost on the weed but prevailed on the bullets, he could get another 1-3 years added to the time he would have to serve on the VOP. And he would also have to pay me to try the new case.

In the end, he took the judge's offer. He will probably do about 7 months downstate. This whole case stunk. I am not sure I was able to explain in this post how difficult this situation was because of the unknowns.

The cops only got the warrant for his house because someone snitched on him. Was he wrong to have the weed in his house? Yes, absolutely. Did he know the bullets were also there? I don't think so.

Was either the 11 grams of pot or the bullets really worth tax payer money to send him to prison?

Standing there yesterday during his plea hearing, I actually felt like chewing my own teeth.




  1. I'm excited that I knew 100% of what you said without needing explanation. Were you in my favorite Judge's courtroom? Pot is ridiculous. Everyone thinks so. All the ASAs I know say it's a waste of everyone's time to be in court for it. That being said....it would be super great if he'd stop committing crimes. That would make your job way easier. Just sayin.' (I always shake my head at the VOPs. I really don't understand how hard it is to not break the law. Especially when you are out on probation and you know you're in serious trouble if you do).

  2. Marcus, sometimes there just aren't any good options. All you can do is lay them out, give the best advice you can, and let the client choose which dice to throw.

    In TN, I'd have had a good chance on the ammo--we have a pretty favorable standard for constructive possession, and with only 11 grams of MJ, they'd be hard pressed to prove intent.

  3. There were some other items seized in addition to the pot that *could* have been argued amounted to intent to deliver. Use your wise imagination.


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