Class 6 felony drug possession- minimal requirement
Also charged with Speeding, possession of paraphanelia, and posession of marijuana (less than 1 gram)
I am currently reviewing an offer presented by the DA and my lawyer for 4 years probation with the potential for sealing my record in 2 years. Considering this is the maximum term, I am concerned my attorney isn't putting forth the best effort here, or that his relationship with the DA is not favorable. This seems like a very standard, if not strict offer.
Considering the implications of a deferred judgement, and entering a guilty plea on a felony, this does not seem appealing at all. This offer is coming from the deputy DA. I am scheduled to meet with them again on 4/16 to enter a plea. What are my other options?Amazing amount of response here. Thank you all for you time and attention. I should give more information. The class 6 is for possession of pharmaceutical adderall. (Amphetamine salts) 15miligrams. This is the dosage for a 15 year old for 4 hours. I was perscribed this medicine in the past and the pills were given to me while I was home for the holidays. A family member was concerned I would fall asleep at the wheel while making the long trip home. I had no idea that possession was a felony. I volunteered them to the officer, along with the tiny Amt of pot I had expecting a petty offense.
So, the class 6 felony carries up to 18 mos DOC. However, in reality, no judge would send someone to DOC on a first offense for a class 6 felony. DOC is already congested and overburdened. They have told the DAs that they are not happy about having people on class 5 and class 6 felonies sent there (and they try to parole them as soon as possible) even when people have priors. A former DA that I worked for and that I am still friends with, James Peters, can attest to that fact.
The paraphernalia and marijuana charges are just petty offenses and carry a fine and a drug surcharge and no jail. So, they are really non-factors compared to the felony. If they are offering you what you say is "probation" with the option of sealing in 2 years, they MUST be offering you a deferred judgment and sentence. Because, if you plea to any charge in Colorado as a "straight plea" (non-deferred), you no longer can seal your record. They changed the law in 1998 (if my deteriorating memory serves me correctly) and there were a glut of people who tried to seal their records just before it was changed.
I don't understand a deferred being that long. 4 years on a class 6 felony? There is simply no need for such a lengthy time period to monitor you with no prior offenses. One or two years is standard. I would ask your attorney to have the DA to explain the method behind their madness with offering that.
Don't assume that your attorney is selling you out. In 21 years of doing this, I hear people say that all the time about their attorneys in every field of law. Attorneys do not want to get sued for malpractice or grieved for ineffective assistance. That is their worst nightmare. Although there have definitely been some exceptions, in the literally hundreds of attorneys that I have dealt with as a prosecutor, judge, and defense attorney, almost all zealously represent their clients. You might have a jerk of a prosecutor on the other side. Who knows? Open and HONEST communication with your attorney is the absolute key. Tell him or her your concerns.
Your options are to negotiate a different deal between now and 4/16, take the offer that they have extended (which frankly does not make sense for a 4 yrs DJS with sealing after 2 years), or rejecting the offer and pleading not guilty and setting the case for a trial. You can seek out new counsel. However, I would only do that as a last resort.
Your primary option is to go to trial and see if a jury actually convicts you. If not, you will have no sentence at all. If you get convicted, a prison sentence is likley.
Felony charges are serious. The type of plea offer that is likely to be on the table will vary primarily based on the facts of the case and the District Attorney's policies. A defense attorney can sometimes convince the prosecution to amend the offer, but this generally requires showing the prosecutor that there is either a weakness in the case or something special about your circumstances that justify extra consideration. It's not about just "putting forth effort."
You state that it sounds like a very standard offer. If you are a standard defendant, then a standard offer is probably appropriate. You haven't outlined the facts that make you special and would justify the prosecutor making a different offer. If there are circumstances that weigh in favor of a more lenient plea, discuss them with your attorney and have him or her talk to the DA. You have to give them something to work with if you expect results.
You may want to consult another defense attorney and discuss whether they think they could arrange a better deal. You always have the right to hire a different attorney if you think it will help. However, you have outlined a pretty average case for which a pretty average plea offer is probably going to sound appropriate to the prosecutor. Your ultimate decision is whether to accept a plea or to take your chances with a jury.
You can reach Harkess & Salter LLC at (303) 531-5380 or [email protected] Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.
You have plenty of options. First, you can ask for a lesser term of probation with a out-patient drug program. Upon successful completion of let's say a 90 day out patient program meeting once a week, you could ask if the prosecutor would not oppose early termination of probation, a reduction to a misdemeanor, and a dismissal.
Many times, it would be smart to go to the court house and see if there is a friendly public defender to talk to. They usually know what the standard deal is in that particular court (which you should return to).
It sounds like you do not have confidence in your lawyer. Have you investigated whether he is a true criminal defense practitioner. It makes a difference. This is not like going to the doctor in the old West. You need somebody who does this on a regular basis.
Only an attorney that either practices there regularly or knows enough to ask somebody that is in that court regularly will know what is typical.
By the way, offers often come from the DA, that is not the litmus test. But, your attorney can counter and should try to keep the deal open as long as possible. Call another attorney for a free consultation. But don't take a second opinion as absolute fact. None of us can look into the future and predict an outcome. Every state is different. Although I do not practice in CO., the class 6 felony sounds a lot like the AZ system of the Model Penal Code.
But, Breckenridge? It seems that a ski town might not be so harsh, but it is different everywhere.
Best of Luck.
This information is given for legal education only. It may not work for your specific situation. It is not legal advice, and I am not your lawyer. You have to find your own local lawyer to get legal advice and help with your problem.
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