I was recently retained by a client to represent him in a Modification of Sentence for Possession with Intent. I did not represent him in his original case, and he was dissatisfied with his then attorney. The Motion to strike the guilty finding and enter a Probation before Judgment had been in the Court file for almost three years, and probation is about to expire. The facts of the case were not great because there were aggravating circumstances that were pretty unique. However the judge had allowed the Motion to sit when he could have denied it 3 years ago.
I requested a Hearing and the judge granted it. I spent enough time with the client going over the facts of the original case and what he had done to redeem himself the last 3 years. He went far beyond what the judge had ordered him to do treatment wise and he is a responsible father and hard working. He had a couple of minor offenses years ago, one being an expungeable possession of marihuana under 10 grams. I filed that expungement when he came in for the interview, however it did exist at the time he plead guilty. The judge had not promised him a PBJ at the original sentencing. It seemed to me that you do not let the Motion for Reduction of Sentence languish for 3 years unless you are willing to allow the defendant to prove himself worthy of striking the conviction from his record. The judge remarked that he had NEVER granted a PBJ where there was any kind of prior controlled dangerous substance offense, even a minor possession of marihuana. The State was adamant based on the aggravating factors of the underlying case and reminded the judge they recommended 5 years at the original sentencing. After listening to my argument and the client’s allocution, he again said he had never done this before. He then sat and thought about it and decided to give the defendant the benefit he had earned.
A good judge never has such a hard and fast policy that he/she cannot be convinced to ignore under the correct circumstances. It is up to the lawyer and the client to force the change. Today was one of those days where the facts trumped the policy. The client is no longer a convicted felon and will be able to expunge this case from his record. What the judge did was fair and appropriate and the client gets to live his life without being a convicted felon.