Deferred Prosecution – It’s About Money

What is Deferred Prosecution?

Beginning in June of 2017, the Tulsa County DA began offering Deferred Prosecutions.  This is a contractual arrangement to not file charges on you even though you have been arrested. Simply put, if you will sign up for voluntary supervision, pay all of your fines and fees upfront, then they won’t even file charges against you.  Sounds like a dream come true, right?  Maybe not, keep reading.

Who is eligible?

This contractual arrangement is only available to people who have a clean record and no criminal history.  As you have read above, all the fines and fees must be paid in advance, so this will seriously limit the people that can take advantage of this program.

How much will it cost?

The supervision fee will be $240.  On top of that, you will have a fee of between $200 and $400 for each charge you were booked in on.  So, as an example, if you were arrested on Possession of Marijuana, No Driver’s License, and No Insurance; you would be looking at a total of  $1065.00 total up front before you can take advantage of this program.

What does the supervision look like?

Tulsa COURTS will supervise you, which is the same group that supervises people for Drug Court.  It will be for a minimum of 6 months, but could be 2 years.  You may have to do a Drug and Alcohol Assessment, Random Urinalysis Drug Testing, Restitution, Mental Health Evaluation, Community Service Hours, Stay Away Orders, GPS, or SCRAM Alcohol Monitoring.  Oh yeah, that is all at your cost.  Also, they can also come visit your home or place of employment.

What happens if I fail?

Even if you only have supervision for 6 months, if you run into trouble anytime within 2 years, you will not only have to deal with those charges, but the DA will file these old charges on you too.  They can also file the charges on you for any form of non-compliance.

Seems like a decent deal, what is the catch?

Your biggest concern is that you are waiving several of your Constitutional Rights!  First, you will have to sign an agreement that says that the State of Oklahoma has sufficient evidence to achieve a conviction.  Next you are waiving your rights to speedy prosecution and a speedy trial.  Also, you will be waiving the Statute of Limitations.  Finally, you will be waiving your rights to counsel.

Is there anything else I should know?

Yes.  You are also waiving your ability to challenge the lawfulness of your arrest.  You are also waiving your ability to challenge the search of your vehicle, home or person.

What should I do?

You have a right not to be singled out.  You have a right not to be harassed because of who you are or what neighborhood you come from.  You also have a right to your privacy.  Hire a qualified attorney that is not afraid to fight for your rights.  If the DA was going to give you the Deferred Prosecution then they most likely will still offer you Deferred Probation, which is practically the same thing without waiving all of your rights.

Why is the DA offering this?

It is about the money.  This method of handling cases will shift money from the Court Fund to the DA Fund.  This isn’t about helping you, but instead a way of funding the DA’s Office.

Robbery in Oklahoma

If you are accused of robbery, there could be very significant penalties at stake. While most theft crimes are considered property crimes, robbery is considered a violent crime against the person.  Depending on the type of robbery with which you are charged, you could be facing up to life in prison.

What is Robbery?

Someone who discovers their property missing may say they have been “robbed.”  This is actually larceny or burglary.  While larceny and burglary generally depend upon stealth, robbery is about the force or fear used to commit the crime.  Robbery is defined by Oklahoma law as “a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear” (21 O.S. § 791).  The state divides robbery into several classifications, including first degree, second degree, conjoint, and armed robbery.

First Degree Robbery

Defined in 21 O.S. § 797, first degree robbery occurs under one or more of four specific circumstances:

1.    inflicts serious bodily injury upon the person;

2.    threatens a person with immediate serious bodily injury;

3.    intentionally puts a person in fear of immediate serious bodily injury; or

4.    commits or threatens to commit a felony upon the person.

First degree robbery is a felony punishable by a minimum of 10 years in prison. It is also an “85 percent crime,” under O.S. 21 § 13.1, a person convicted of this crime must to serve a minimum of 85 percent of the sentence before the possibility of parole.  With that said, there is case law that brings the minimum down to 5 years, but judicial notice should be invoked.

Second Degree Robbery

Second degree robbery does not carry the same requirement that the force results in serious bodily injury or that the fear is the intentional threat of serious bodily injury.  Second degree robbery is a lesser offense than first degree robbery, and it is not an “85 percent crime”.  Robbery in the second degree brings a possible sentence of up to 10 years in prison.

Conjoint Robbery

Conjoint robbery, or robbery committed by two or more people conspiring or acting together to accomplish the robbery is a serious felony where each person involved faces 5 to 50 years in prison.  Like first degree robbery, conjoint robbery is an “85 percent crime”.

Armed Robbery

Robbery or attempted robbery with a dangerous weapon or imitation firearm (21 O.S. § 801) carries a minimum sentence of 5 years in prison.  It is important to note that this law also includes failed attempts.  It does not matter if the gun was not loaded, or even if the “firearm” used was a fake.  Because the motive behind the use of an unloaded or imitation gun is still “force or fear,” it is considered armed robbery even with a toy gun.  Robbery or attempted robbery with a dangerous weapon or imitation firearm is an “85 percent crime”.  

Robbery is a Serious Felony

Robbery charges are very serious and the DA’s office prosecutes these cases aggressively.  You or your loved one could be facing decades in prison, mandatory minimum sentencing, and even registration with law enforcement for placement on the Oklahoma Violent Offender Registry.  Call us today at 918-884-7791 to discuss how we can defend you or your loved one from a Robbery charge.

Does Trump’s Executive Order affect my criminal case?

PRESIDENT TRUMP’S EXECUTIVE ORDERS

On January 25, 2017, President Trump signed two executive orders (EOs) on immigration policy. These orders directed the Department of Homeland Security (DHS) to enlarge the deportation dragnet and further militarize the southern border of the U.S.  The administration expanded the group of people who will be priorities for deportation, specifically noting “removable” immigrants who have been accused or convicted of committing criminal offenses. The EOs also reflected a focus on having local law enforcement agencies perform the functions of immigration officers through formal agreements and by denying federal funds to “sanctuary jurisdictions” that do not comply with requests to help Immigration and Customs Enforcement (ICE) detain and deport immigrants.

Do the EOs change who is legally subject to deportation “removable”?

No. The existing immigration laws dictate who is legally “removable.”  Current law allows the federal government to deport people who lack lawful immigration status (i.e. undocumented people) as well as those with status (e.g. green card holders, refugees, visa holders) who have certain criminal convictions.  The President cannot redefine who is legally “removable” without an act of Congress.  However, for people who are “removable” under existing law, the policies announced can and do expand whom immigration authorities will target for deportation.

Do the EOs change whom ICE will seek to detain and deport?

Yes.  Some individuals who would not have been ICE enforcement priorities before may now be high priorities for removal, even pre-conviction.  Of note, any “removable” person who has been previously accused or convicted of a crime is now a priority for deportation.

Immigration authorities will prioritize deporting the following categories of “removable” people:

• Those with any criminal conviction(s);
• Those with previous criminal charges – even if such charges have not been resolved;
• Those believed by immigration officers to pose a threat to public safety or national security;
• Those who have a final order of removal; and
• Those who have engaged in fraud/misrepresentation in applications to government, or who have “abused” public benefits.

For those currently in the criminal legal system, it is important to note the EO makes no distinction between the types of crime or level of offenses that will make a person a target for deportation.  Also, it is likely ICE will prioritize people with prior convictions regardless of how long ago the conviction occurred or the level of the prior conviction.

Should I bother hiring a good Criminal Defense Attorney?

Yes! The executive orders confirm that immigrants with convictions will be targeted as a top priority for deportation.  It is crucial to not just negotiate dispositions, but fight them to dismissal in order to minimize immigration consequences and exposure to enforcement agents. This applies to immigrants with and without lawful status!   Make sure to hire a Criminal Defense Attorney that understands that any conviction even one that includes a deferred sentencing, probation, and expungement can still make you a priority for deportation.

Am I safe if it is a Municipal case?

No!  Dispositions considered to be minor or even “non-criminal” can make your client a priority or deportation. For example, DHS considers municipal violations to be misdemeanor convictions. It is important to hire a attorney who is well versed in criminal law and understands that the only way to keep you in the United States is to fight your case and have it dismissed.

What does this mean?

Whether you are documented, or are here without papers, it is important that you stay out of the legal system.  Don’t drink and drive, stay away from illegal controlled drugs, walk away from fights, and don’t carry a gun.   But, if you are arrested, your first call is to a highly qualified criminal defense attorney who is not afraid to fight your case, because the only chance you may have to stay in this country is to challenge the charges and get them dismissed.

Brian J. Boeheim, Esq. --- Boeheim | Freeman PLLP --- 918-884-7791

The 14th Amendment Protects Illegal Immigrants

With the Presidential primaries beginning, one of the hot topics is whether  “immigrants without papers” have the protection of the U.S. Constitution and the Bill of Rights.  The 14th Amendment and the U.S. Supreme Court say YES!:

The 14th Amendment, “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The key word in this Amendment is the word “person”.  There it is as clear as day right after the term citizens.  This leaves little doubt that the Amendment was clearly meant to include every person living within the jurisdiction.  That means everyone, including those without papers, and the U.S. Supreme Court seems to agree.  In Zadvydas v. Davis (2001) the U.S. Supreme Court said that "due process" of the 14th Amendment applies to all aliens in the United States whose presence maybe or is "unlawful, involuntary or transitory."  Twenty years before Zadvydas, the Supreme Court ruled in Plyler v. Doe (1982) that Texas could not enforce a state law that prohibited children without papers from attending grade schools.  Specifically they said, “no state shall 'deny to any person within its jurisdiction the equal protection of the laws.' Whatever his status under immigration laws, an alien is a 'person' in any ordinary sense of the term ... the undocumented status of these children does not establish a sufficient rational basis for denying benefits that the state affords other residents.”  In Almeida-Sanchez v. United States (1973) they concluded that all criminal charge-related elements of the Constitution's amendments (the First, Fourth, Fifth, Sixth and the 14th) such as search and seizure, self-incrimination, trial by jury and due process, protect non-citizens, legally or illegally present.

Even as far back as the late 1800’s the U.S. Supreme Court was clear about the rights of immigrants without papers.  In Yick Wo v. Hopkins (1886), the court ruled that: States cannot deny equal justice is still under the Constitution.   And, in Wong Win v. United States (1896), the court ruled that all persons within the territory of the United States are entitled to the protection by the 5th and 6th Amendments, even aliens.

In summary, immigrants without papers have the full protection of due process under the U.S. Constitution by way of the word "persons" in the 14th Amendment.