Tennessee Legislature Set To Punish Illegal Aliens Harsher

The Tennessee Legislature passed a new sentencing bill in the last minutes of the legislative session. The proposed new law would establish a new enhancement factor for defendants who are aliens illegally or unlawfully in this country and who have previously been deported for a criminal offense. If the sentence cannot be agreed to by the district attorney and the defense attorney, the trial court will conduct a sentencing hearing to determine the manner and length of the sentence. One of the considerations is enhancements factors. The complete list of sentencing factors can be found here. The new law places an unfair burden on the judges of this state.

The Tennessean has reported  that similar types of laws have been declared unconstitutional. From a common sense perspective the law is a waste of taxpayer money solely in an attempt to make political capital at taxpayer expense. Here is a real life example. A person in this category once arrested would have a ICE hold on them. Meaning that once they got out of jail, they would be deported because they were once deported. Also, the Federal government could prosecute for illegal reentry. Illegal reentry has a maximum punishment up to 20 years.

Now, the Legislature wants to allow Tennessee judges to order the defendant to serve more time in Tennessee prisons before they are deported or prosecuted in the Federal courts. Guess who foots the bill ? Tennessee taxpayers. It is expensive to house inmates.. The bill's fiscal note was for $500,000.00. It can't possibly be this low of an amount.

The Tennessee Legislature passed a bill knowing it may be declared unconstitutional. Additional it costs Tennessee taxpayers. It seems it is okay to fight a gas tax to fix roads but it is fine to spend money to keep people in jail unnecessarily.

 

The bill awaits the Governor's signature.

Nashville Lawyer Files Lawsuit for Mass Expungements

Stacey Barchenger wrote a story in today's Tennessean about a court filing calling for mass expungements. Before I comment on the article. I would like to acknowledge The Tennessean is once again covering the local courts. When I first started as a law clerk then a lawyer , Kirk Loggins covered the courthouse beat. Kirk did a great job covering the issues and bring a closer inspection on what goes on at the Courthouse. Ms.Barchenger has taken over the beat and has provided in depth reporting on the courts including the Vanderbilt rape trial. it was a welcome addition to the local news coverage.

Mr.Horwitz gained some exposure by filing the petition. However, it will never take place because of the manpower that it would require. It should have been done by the lawyers who represented the folks years ago. typically, a person may be arrested on multiple charges. I see a marijuana charge plus a drug paraphernalia charge. You plead on one charge and get the other dismissed. You can get all charges expunged that are dismissed or retired. One service I provided is to have all dismissed charges expunged from your record that are dismissed. I have one staff person that handles all expungements. If your lawyer did not do this for you, you should go to the second floor of the A.A.Birch Building and request an expungement order. If court costs were assessed, you must pay the court costs in full. If you leave out of Nashville and want your record cleaned up leave a message on our website. Marcia will see if we can help. We charge a small fee if we did not handle the case from the beginning.

We will see what happens. The filing made a splash. It is yet to be seen if it will have a real impact.

Nashville Lawyer Files Lawsuit for Mass Expungements

Stacey Barchenger wrote a story in today's Tennessean about a court filing calling for mass expungements. Before I comment on the article. I would like to acknowledge The Tennessean is once again covering the local courts. When I first started as a law clerk then a lawyer , Kirk Loggins covered the courthouse beat. Kirk did a great job covering the issues and bring a closer inspection on what goes on at the Courthouse. Ms.Barchenger has taken over the beat and has provided in depth reporting on the courts including the Vanderbilt rape trial. it was a welcome addition to the local news coverage.

Mr.Horwitz gained some exposure by filing the petition. However, it will never take place because of the manpower that it would require. It should have been done by the lawyers who represented the folks years ago. typically, a person may be arrested on multiple charges. I see a marijuana charge plus a drug paraphernalia charge. You plead on one charge and get the other dismissed. You can get all charges expunged that are dismissed or retired. One service I provided is to have all dismissed charges expunged from your record that are dismissed. I have one staff person that handles all expungements. If your lawyer did not do this for you, you should go to the second floor of the A.A.Birch Building and request an expungement order. If court costs were assessed, you must pay the court costs in full. If you leave out of Nashville and want your record cleaned up leave a message on our website. Marcia will see if we can help. We charge a small fee if we did not handle the case from the beginning.

We will see what happens. The filing made a splash. It is yet to be seen if it will have a real impact.

Should Your Client Testify at a Sentencing Hearing ?

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can't hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Should Your Client Testify at a Sentencing Hearing ?

Being a criminal defense attorney requires you to use many types of advocacy. You have preliminary hearings , motion hearings , jury trials ,and sentencing hearings. Each area requires different skills of persuasion. Today , I want to discuss one aspect of  sentencing hearings.

Sometimes your client is found guilty after trial or agrees to a sentencing hearing for the judge to decide the sentence. A sentencing hearing is basically a mini-trial where the judge decides the manner of service meaning should your client get jail, probation , or some other sentence. The court also decides the length of service . The topic today is whether your client takes the stand.

The attorney and the client must make the decision on whether to testify. Bear in mind a old post on the two most important words your client must say at a sentencing hearing. You client has three choices:

  • Say nothing.
  • Testify and be subject to cross examination.
  • Make an allocution .

If your client says nothing , the court can't hear him say I am sorry and show he is remorseful. If he testifies , the client opens himself up from the rants of the prosecutor that are often rambling and borders on abuse. then, the judge may have some questions.

My suggestion is the allocution. A  allocution is simply a statement made to by the client to the court. No help from the defense attorney. No cross examination by the prosecutor. It needs to express remorse if there is someone hurt .It needs to deal with the issues that the court may have concerns about such as alcohol and drug use. remember it is your story to tell on why the court should not send you to jail.

 

Revocation of a Suspended Sentence in Nashville

       

The District Attorney's Office here in Nashville is using a new tool at their disposal. On some simple crimes , a defendant is offered a suspended sentence. A suspended sentence is suspended  for a period of time . Recently , the assistant district attorneys have been more aggressive in filing motions to revoke a suspended sentence based on new criminal charges.

T.C.A. 40-35-311 provides the procedure to revoke one's suspended sentence. The procedure provides that the trial judge or General sessions judge has the power to revoke a suspended sentence based on a violation of probation or a breach of the laws of Tennessee. In revoking a suspended sentence in General Sessions Court , the State of Tennessee is simply filing a motion with the court. The statute provides that the court must issue the revocation warrant. In the cases I have seen in Nashville, the assistant district attorney files the motion. The procedure is not followed.

If the court finds you have violated the conditions of the suspended sentence, the court can order you to serve the sentence or sentence you to any community-based alternative to incarceration. You also have the right to appeal the judgment from General sessions Court to criminal court.

If you find yourself facing one of these motions to revoke your suspended sentence, make sure the procedure is being followed.

Tips On How Not To Have Your Probation Violated

While I was working on this post in court yesterday , I mentioned it to a fellow lawyer who showed me this Chris Rock video on "How not to get your ass kicked."  Some of Chris Rocks tips are very similar to mine. Probation should be easy. There are simple rules like not get arrested and other rules. Here are my tips not to get your probation violated.

1. Smile when you meet your probation officer for the first time.

2. Be nice and pleasant to your probation officer. Remember your probation officer can send your butt to jail.

3.Send them emails , cards , letters. Hope they get tired of hearing from you.

4.Do not let anyone ride in your car. They may have something on them which could send you to jail.

5. Don't have anything in your car. You probably signed a order consenting to a search anytime during probation.

6.See tip 4 and don't ride in a car with anyone else.

7. Do not have a girlfriend or date. Also , be real nice and sweet to your wife. Just think domestic violence charge.

8. Don't use drugs. You never know when that random drug test might pop up.

9.If you fail a drug screen , get your own drug screen as soon as possible.

10. Pay your court costs and fines off as soon as possible.

10.Satisfy all bond conditions as soon as possible.

Follow these tips in order to avoid a probation violation warrant .

 

Two Words That Must Be Spoken At A Sentencing Hearing

I have been a little remiss posting this summer. I have had a full plate with my term as President of the Tennessee Association of Criminal Defense Lawyers , a class at The Trial Lawyers College , as well as practicing law. So, back to the blog. Before I share with you the two most important words that must be said at a sentencing hearing , a brief explanation of what a sentencing hearing is in order.

Most plea bargains in Tennessee have a agreed upon sentence as to length and whether one should get probation or not. In cases in which the jury decides guilt , the judge always decides punishment except in capital cases and where a fine is set by the jury. In some cases , both sides can agree to the issue of guilt but can't agree to the punishment. Then , the parties agree to a sentencing hearing. At the sentencing hearing , the defendant and the government can present evidence and call witnesses to support their position.There is statutory guidelines which the court must follow to determine whether a defendant should go to jail or serve their sentence on probation. if their are multiple convictions , the court must also determine if the sentences are consecutive or concurrent.

What are the two words that must be said at every sentencing hearing ?  I "m sorry. A defendant does not has to testify but can make a allocution . A defendant asking the court to be placed on probation needs to say I'm sorry and show some remorse for their actions. Personal responsibility goes a long way with most judges. If you plead guilty to some crime whether a domestic violence charge to a more serious charge like robbery. One must accept their actions and say your sorry.

 

 

Tennessee Supreme Court Changes Standard of Review in Sentencing

Appealing a sentence or the denial of probation just got tougher under Tennessee law. In years past , the Court of Criminal Appeals and the Tennessee Supreme Court would review a sentence or the denial of probation based upon a standard of review referred to as de novo based with a presumption of correctness. In two recent cases , that standard of review has now been replaced with a abuse of discretion standard.

In State of Tennessee v. Bise , the Tennessee Supreme Court , the court held that "sentences imposed by the trial court within the appropriate statutory range are to be reviewed under an abuse of discretion standard with a presumption of reasonableness."

In State of Tennessee v. Caudle , that same standard was extended to the issue on the granting of probation.

The court's decision robs an accused of any appellate review of his or her sentence. Now , some judges may impose any punishment they desire as long as it is in the range of punishment. Appellate review of a sentence was one check on the whim of a trial court in imposing a sentence or the denial of probation. It is sad the courts have declined to exercise their oversight of the trial courts. Justice and sentencing will vary on a judge to judge basis.

Yet again , the Tennessee Supreme Court tramples on the rights of a citizen accused and those convicted of a crime.

Mandatory Sentences Give Prosecutors The Hammer

Richard A. Oppel Jr. of the New York Times  just published a article  entitled " Sentencing Shift Gives New Leverage to Prosecutors". From my perspective handling criminal cases in Tennessee , Mr Oppel is right on target. Under Tennessee criminal sentencing laws , there are mandatory minimum sentences in certain criminal offenses.Some prosecutors use those mandatory sentences to drive a plea bargain that sometimes a citizen accused has to accept or risk going to prison for years.

Prosecutors have lobbied the State Legislators for tough mandatory sentences on some criminal offenses. Child rape , aggravated sexual battery , aggravated robbery and first and second degree murder cases have mandatory minimum punishment. Those are violent crimes and should have severe punishment if convicted. However , the hammer has been given to the prosecutors in drug cases to force onerous plea bargain agreements. The prosecutors want to take the discretion away from judges in sentencing. Once someone is convicted of a crime , the trial court holds a sentencing hearing to determine the length and manner of the service of the sentence. Mandatory sentences takes that out of the judge's hands.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

The prosecutors and the police now have that power. The drug free school zone act gives the prosecutors that unfair advantage. For example, a person that is arrested for possession to sell cocaine of over .5 grams in a school zone is facing 15-25 years at 100% in prison with no chance of probation. My problem with the drug free school zone act is that it is arbitrary. The drug activity must occur within 1000 feet of a school zone , but there is no nexus requirement that school must be in session. The worst example is driving down I-65 South and one passes several schools. A person has no intent to sell or possess drugs in a school zone but they can be charged for it.

The  plea  bargain is your client is facing 15-25 on a drug free school zone case so the assistant district attorney offers 15 years at 30% to serve. You go to trial you risk spending years in jail. What is worse is the police can wait to make an arrest. Why arrest someone now ? When they can wait until they drive down Charlotte Avenue past a public school. So the police can dictate the charge and the punishment.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

With that said , our founding fathers created a separation of powers to balance the power between the executive branch and the judiciary. Now , it appears there is no one to keep big brother in check. Let's keep an eye out in a few years on what it is costing Tennesseans to keep a drug offender in jail.

 

A Tip for a Successful Sentencing Hearing In Tennessee

                                 

Why am I showing a image of someone rolling a joint when the title is " Tennessee Sentencing Hearing Tips". Simple. Avoid drug use when facing a criminal charge.Okay , I know drugs are illegal .However , I do realize some individuals use recreational drugs. It creates problems if your charged with a crime.Increasingly , some courts order drug tests at plea or prior to sentencing.A hot drug test spells doom and gloom for my clients.Conversely, it speaks well if one can pass a drug test.Here is a short list from my experiences of Tennessee criminal courts that request a drug test:

  • Division III of the Criminal Court of Davidson Tennessee orders a drug test on the defendant on the day of sentencing.I think this is fair use of a drug test.
  • The General Sessions Court of Sumner County in Gallatin , Tennessee often orders a drug screen after a plea on simple possession.If you fail , a trip to the jail may be in your future.
  • The Criminal Court  in Williamson County , Tennessee at Franklin sometimes orders drug tests at plea but prior to a sentencing hearing.

So , my tip for a successful sentencing hearing in Tennessee is don't use any drugs for your case is pending.

 

What Crimes Exclude You From Probation ?

I have a trial set for Monday. While  I was working on the case today, I got the call with a plea bargain offer. The call made me hit the books just to verify my client is good to go for probation. Last year , The Tennessee Supreme Court found a lawyer was ineffective for telling his client  that he was eligible for probation when he was not. So , I reread Tennessee Code Annotated 40-35-303 to just make sure and I was right. However , I thought the information in the statute was worth repeating.

Tennessee Code Annotated 40-35-303 provides in part..... A defendant shall be eligible for probation under this chapter if the sentence imposed is Ten years or less. However , no defendant shall be eligible for probation if convicted of the following offenses:

                                List of Crimes Not Eligible For Probation Under Tennessee Law

  1. Aggravated Kidnapping
  2. Aggravated Robbery
  3. Aggravated Sexual Battery
  4. Statutory Rape By An Authority Figure
  5. Aggravated Child Abuse and Neglect
  6. Possession of Schedule I Drugs
  7. Sexual Exploitation of a Minor
  8. Aggravated Sexual Exploitation of a Minor
  9. Especially Aggravated Exploitation of a Minor.

Here's the list. Before , you accept a plea bargain . Know the consequences of the plea.

 

 

 

Disbarred Lawyer Denied Judicial Diverison

A disbarred Gallatin , Tennessee criminal defense lawyer who was found guilty of smuggling drugs into the Sumner County jail has lost her appeal for judicial diversion in the Tennessee Court of Criminal Appeals. Jocelyn Mimms was convicted of conspiracy and attempt to introduce contraband into a penal facility. Ms.Mimms was sentenced to serve two years in jail. She appealed her denial of judicial diversion by the trial court .

Tennessee code Annotated 40-35-313 provides that a qualified defendant may be placed on judicial diversion. After the period of probation , The defendant can petition the court to have his or hr criminal record expunged. Judicial diversion is one of the great tools a Tennessee criminal defense attorney has at their disposal to avoid a permanent conviction on a client's criminal record. The trial court based it's decision on the facts  that Ms. Mimms had not accepted responsibility for her actions and that she abused her position of trust.  The Tennessee Court of Criminal Appeals affirmed the trial court and denied her application for judicial diverison.

There are three key points in the case  for criminal defense attorneys.

  1. Do not talk on the phone from jail or prison. Ms Mimms , A Vanderbilt Law School graduate , spoke on the jailhouse phone detailing the drug deals. Stupid. There is an an announcement that all calls are recorded. Jailhouse calls are routinely used in criminal trials that they were used here.
  2. A criminal defense lawyer should not date their client who is in Jail. The ethical rules forbid it and you could wind up in jail.
  3. Judicial diversion is a great tool to avoid a criminal conviction in Tennessee. It is one tool that a Tennessee criminal defense attorney should keep in his get out of jail file.

 

The Loss of Judical Independence

The fallout from the U.S. Supreme Court's decision in United Citizens v The FEC continues even at The State Of The Union Address. Retired Supreme Court Judge Sandra Day O'Connor weighed in on a controversial decision by her former colleagues.Nina Totenberg of NPR iinterviewed Justice O'Connor about the ruling.Justice O'Connor reminded us that our nation's founder's biggest issue it had with King George was the absence of judicial Independence.

In Alabama , a record amount of $ 14.5 million dollars was spent for a single judicial seat. The Court's ruling now opens the floodgates for judicial elections in Tennessee and elsewhere.Justice O'Connor opines " the majority in Citizens United has signaled that the problem of campaign contributions in judicial elections might get considerably worse".In striking down the ban on corporate contributions last week O'Connor further stated that " ignoring the role of special-interest money , particularly in judicial elections , is like ignoring an alligator in your bath tub".

 

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