Gary S. Bernstein, P.A.

Call Toll-Free: 866-435-2795

Locally at: 410-415-9219

Upcoming Violation of Probation for a New Client Another Lawyer Plead Guilty And Who was Innocent

Sometimes the deal is SOOO good that a defendant who is innocent accepts it, but the deal has to good if the downside of being convicted at a trial is much worse.  It is called an Alford plea and is based on a Supreme Court decision in Alford v. North Carolina. The Supreme Court held that an innocent person can plead guilty in order to accept a favorable plea bargain.  But what if it makes NO SENSE.

I just came from the jail where I interviewed a prospective client who has two Violations of Probation pending.  The first VOP is for an Assault where he can receive up to 18 months, and that VOP is based upon a new conviction for Auto Theft and a DUI arising out of the same incident. The facts of the Assault case were not in dispute.  The problem is the second case.  He was guilty of a DUI and Leaving the Scene where he hit a number of parked cars, but what about the Auto Theft?  He got a year for the DUI and did not turn himself in on a delayed report date so he violated probation.  When he plead guilty to Auto Theft and the DUI he received a 5 year suspended sentence for the Auto Theft- the maximum, and 5 years probation- also the maximum.  If he had gone to trial and lost on all counts he could have received 6 years.  Now he is facing the 5 years for the Auto Theft for violating probation by not turning himself in on the DUI portion of the sentence, and obviously never reporting to probation.

Whose car did he steal?  No ones!!!  He was driving his friend's car when he created all the carnage.  His friend did not want his insurance canceled so they decided to say the car was taken without permission.  Everyone who knows the defendant and his friend knew the story.  The defendant tells his lawyer this when he hires him a week before trial.  Without discussing the absolute defense to the Auto Theft charge, on the day of trial the lawyer tells him to wait in the hallway.  The lawyer returns and tells him he has worked out a probation and to plead guilty to Auto Theft and DUI.  If he goes to trial and wins the Auto Theft he is facing the year for the DUI.  The prospective client tells me he just did what the lawyer told him to do and never thought about the future consequences or discussed the downside of just losing the DUI and the Leaving the Scenes.

He tells me maybe he should hire the original lawyer for the Auto Theft/DUI VOP so the lawyer can tell the judge he was really innocent and took the plea because he did not know any better.  I asked if he thought the lawyer would "confess."  The prospective client's family wants him sentenced to in-patient treatment for drug addiction and the court knew of his addiction.  It is unlikely his story is going to be believed and that the Court is going to say "never mind" when it comes to the 5 years for Auto Theft.

I also ask him why he thinks the original lawyer, who he says screwed him, would suddenly throw himself under the bus?  He gives me a blank stare.  I ask him if he went to a restaurant and got food poisoning, would he go back and eat there again? He say "No" to that.  That example got through to him.  There is the possibility of a Post Conviction but it sadly becomes a credibility battle between the lawyer and the defendant.  The owner of the crime is not coming forward to admit insurance fraud, although at the time of the trial it would have been easy for him and others who knew the truth to be summonsed for trial.  Now it just sounds like sour grapes from a defendant who does not want a 5 year sentence.

If the family can retain me, I need to get the 2 VOP judges to agree to an evaluation for substance abuse and being bi-polar, so that he can serve his time in in-patient treatment.  If he does not go to residential treatment, he will be no better the day he is released from serving these sentences.  He understands that and wants the help, but he should not be facing all the time he may get.  Obviously the deal was NOT SOOO good.  

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Contact Information

  • Gary S. Bernstein, P.A.
  • 29 W. Susquehanna Avenue, Suite 700
  • Towson, Maryland 21204
  • Toll Free: 866-435-2795
  • Locally: 410-415-9219
  • Fax: 410-823-0610

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