Posts Tagged ‘Appeal’

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State v Brown – Utah Court of Appeals Motion

Apr
23
Utah Criminal Defense Blog, on the topic of  Utah Court
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A man sentenced to prison in 2011 recently filed a sua sponte motion for summary disposition with the Utah Court of Appeals in the matter of State v Brown.

State v Brown

The case involves Keith Brown, who pleaded guilty in February 2011 to sodomy and sexual abuse of a child. Brown was appealing the district court’s denial of his motion to set aside his guilty pleas.

A verdict can be appealed to the Utah Court of Appeals under certain circumstances; however, the defendant carries the burden of proving his case.

In its decision, the Court of Appeals stated that Brown had not filed his motion in a timely manner, noting that a request to withdraw a guilty plea needs to be made by motion before the judge announces the sentence. When a motion to withdraw a guilty plea isn’t made in the appropriate time frame, the defendant loses his right to challenge the validity of the guilty plea on appeal.

The Court of Appeals’ Decision

The Court of Appeals denied Brown’s motion, stating that they did not have jurisdiction to review whether or not the district court made any mistakes in denying the motion for misplea. Brown will continue serving his sentence as previously given.

A benefit of the judicial system is that people who are found guilty of a crime often have the opportunity to appeal that conviction, or at least aspects of the conviction. Another advantage of the judicial system is that everyone is entitled to legal representation.

That is where a good Utah criminal defense attorney comes in. Regardless of the charges against you, don’t hesitate to talk to an experienced attorney who has a history of winning his clients’ cases. If you are facing criminal charges, you need the services of a top Utah criminal defense attorney who will fight hard to protect your rights and freedom.

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Ineffective Assistance of Counsel in Utah

Apr
09
Utah Criminal Defense Blog, on the topic of  Utah Court
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In Utah, a person may petition the Appeals Court after he has been convicted of a felony for ineffective assistance of counsel—another way of saying that an attorney erred in some fashion. In order to claim ineffective assistance of counsel, a person must prove that his attorney’s performance was deficient and that such deficient performance prejudiced the defendant’s case.

Photo: roosac

Photo: roosac

State v. Jimenez

In a recent appellate case, State v. Jimenez, the convicted man filed a claim of ineffective assistance of counsel, stating that his attorney failed to do the following:

• Obtain forensic examinations of the victims
• Make appropriate motions
• Object to prior bad acts testimony from a witness

What Did the Court of Appeals Think?

The Court of Appeals determined that Jimenez’s attorney didn’t perform ineffectively because he didn’t ignore relevant evidence. They also decided that a case against a person may contain multiple charges against multiple victims if the charges are based on the same conduct or are otherwise connected.

The court noted that, concerning the witness’s testimony about prior bad acts, they do not decide whether or not Jimenez’s counsel should have objected—although they do say that no prejudice occurred from the testimony.

After reviewing the defendant’s claim of ineffective assistance of counsel, the court determined that Jimenez’s attorney did not err and the Appeals Court upheld his conviction.

Talk to a Utah Criminal Defense Attorney Right Away

It’s important that any person convicted of crime be able to appeal his case if he believes that an injustice occurred. That’s where an attorney comes in. Don’t hesitate to contact a Utah criminal defense attorney if you want to appeal your felony conviction or if you’re just at the beginning of your criminal case. Get the legal experience you need on your side today.

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State v. Lamb: Utah Court of Appeals Considers Cattle Rustling Case

Jan
11
Utah Criminal Lawyer, on the topic of  Constitutional Rights, Crimes, Evidence, Hiring a Lawyer, Legal Process, Utah Court, Utah Law, Utah Legal Definition
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The Utah Court of Appeals issued an opinion this week upholding the convictions of Jeff Lamb for three counts of theft of lost property, third degree felonies under Utah Code section 76-6-407. State v. Lamb, 2013 UT App 5, Case No. 20111071-CA.

In 2010, Utah Department of Agriculture Theft Inspectors received a tip of possible cattle rustling in Ephraim, Utah and went to a nearby property to investigate. Using binoculars, the inspectors looked at the cattle on Mr. Lamb’s property and found that one of the calves did not have the Lamb branding marks. Based on this observation, the inspectors entered the first and found two other cows with different ownership markings.

Mr. Lamb challenged his convictions, arguing that the three charges should have been tried in separate trials because the charges involved different owners, different kinds of cattle, and different days when Mr. Lamb obtained them. The trial court disagreed and found that the thefts were part of a common plan or scheme because they were all obtained when Mr. Lamb was driving his herd was between ranges and they were all kept in possession for a long time “without taking reasonable measures to return them.” The court of appeals agreed with the trial court.

Mr. Lamb also argued that the inspectors viewing of his field and entry onto field violated his right against unreasonable search and seizure under the Fourth Amendment of the United States Constitution. The court of appeals disagreed with Mr. Lamb and cited the United States Supreme Court cases that have found that “open fields” are not protected by the Fourth Amendment. According to the court, “An ‘open field’ need not actually even be ‘open’ or a ‘field.’ So long as it is not part of the curtilage of a home, an ‘open field’ can be a secluded field surrounded by woods, fences, chicken wire, or embankments, and entirely out of public view or access; it can even be a cave, a still, a shed, a small concrete building, a chicken coop, a hog pen, a good pen, or an open and shared parking area adjacent to or behind an apartment building.” Lamb, 2013 UT App 5, ¶ 16.

Even though you may own a piece of property, it does not mean that there is absolute right to keep the police from entering onto it. Courts looks to whether the owner has a “reasonable expectation of privacy” in the property when considering search challenge.

If you are under investigation or have been arrested, call an experienced criminal defense attorney to help you learn about and protect your rights.

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Utah Supreme Court Allows Sex Offender to Seek Reduction in Conviction

Oct
15
Utah Criminal Lawyer, on the topic of  Crimes, Legal Process, Punishment, Utah Court, Utah Crime News, Utah Law, Utah Legal Definition
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Utah law allows some defendant’s to ask for a reduction in the degree of their offense upon successfully completing probation. See Utah Code § 76-3-402. This law was in effect in 2005 when Mr. Howard Price Johnson pled guilty to unlawful sexual activity with a minor, a third degree felony, and enticing a minor, a class A misdemeanor. At the time of his plea, the prosecution agreed to not oppose a reduction in offense after Mr. Johnson completed probation.

While Mr. Johnson was on probation, the Utah Legislature amended the Utah reduction law to preclude reductions if the conviction “requires the person to register as a sex offender until the registration requirements . . . have expired.” The change in the law occurred in 2006 and Mr. Johnson asked for a reduction of his offense in 2008.

The issue in the case was what version of the law to apply to Mr. Johnson’s convictions–that is, could the court reduce the offense after completion of probation or would the court have to wait until Mr. Johnson completed his time as a registered sex offender. The Utah Supreme Court found that “the substantive right to seek a reduction in conviction vests at the time of initial sentencing.” State v. Johnson, 2012 UT 68.  Effectively, the right to ask for a reduction is substantive, not procedural, so the law controlling the case was the law in place at the time of sentencing.

The court remanded the case to the district court to apply the reduction statute in place in 2005 when Mr. Johnson plead guilty.

If you or someone you know has been charged with a crime, having an experienced criminal attorney to help understand the nuances of complicated provisions of law can make a difference in the result of your case. Call a criminal defense attorney today!

 

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Posted in Crimes, Legal Process, Punishment, Utah Court, Utah Crime News, Utah Law, Utah Legal Definition | No Comments »

Utah Supreme Court Changes How Prior Offenses Admitted in Court

Oct
02
Utah Criminal Lawyer, on the topic of  Crimes, Criminal Defense Misc, Evidence, Hiring a Lawyer, Legal Process, Utah Court, Utah Crime News, Utah Law, Utah Legal Definition
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The Utah Supreme Court issued an opinion last week in State v. Verde that changes how trial courts will look at prior bad acts by a defendant before they are admitted at trial.Giant Gavel

The Case

In 2005, Mr. James Eric Verde was charged with the sexual abuse of a twelve-year-old child.  During the trial, the prosecution was allowed to bring in evidence of previous allegations made by other two other males against Mr. Verde. Mr. Verde was convicted and appealed to the Utah Court of Appeals. In Utah, prior bad acts by a defendant are admissible so long as the prosecution can show that they are not using the evidence just to show that the defendant has a bad character and acted according to that bad character. The court of appeals found that because Mr. Verde had plead not guilty to the crime, the prosecution was allowed to bring up the prior allegations to help prove that Mr. Verde intended the sexual abuse. This is known as the “not guilty rule.”

The Utah Supreme Court Opinion

The Utah Supreme Court uniformly rejected the “not guilty rule.” The court said, “[a] not-guilty plea technically puts every element of a crime at issue” so under the “not guilty rule” prior bad acts would always be admissible to help prove some element of the crime. The court found that there needs to be more than just a not guilty plea to admit prior bad act evidence. Specifically, the court looked at what Mr. Verde’s claimed defenses were and found that he had not argued that he didn’t have the intent to commit sexual abuse–Mr. Verde had argued that he hadn’t committed the crime at all. Because of this error, the Utah Supreme Court ordered that Mr. Verde be given a new trial and the prosecution will have to try and give the trial court a different reason to admit the prior allegations of abuse.

The Doctrine of Chances

The supreme court also introduced a new way to look at prior bad acts by a defendant before admitting them at trial: the “doctrine of chances.” Under this doctrine, the more times similar events occur, the likelihood that these events are just coincidence becomes lower. So, to use the court’s example, the probability that an innocent person would be accused of sexual assault multiple times is fairly low. To help in analyzing whether prior bad acts should be admitted in a trial under the “doctrine of chances,” the supreme court told trial courts to look at: (1) what elements of the crime are disputed by the defense; (2) whether the prior acts are “roughly similar to the charged crime”; (3) whether the prior bad acts are independent of each other and the charged crime; and (4) how many times the independence acts are said to have occurred.

For the full opinion, click the link: Verde.

What this Means for Defendants

It remains to be seen how trial courts will interpret and use the doctrine of chances in future trials. Having a prior conviction or being previously accused of a criminal act can be very difficult evidence for a defendant to overcome at trial. Many defendants are not even aware that prior accusations, not just prior convictions, may be used against them in future trials. Having an experienced criminal defense attorney to make a strong argument to keep that evidence out can make a big difference!

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Posted in Crimes, Criminal Defense Misc, Evidence, Hiring a Lawyer, Legal Process, Utah Court, Utah Crime News, Utah Law, Utah Legal Definition | No Comments »

Utah Activist Tim DeChristopher Withdraws His Federal Criminal Appeal

Sep
28
Clayton Simms, Criminal Defense Attorney, on the topic of  Constitutional Rights
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The Following is Tim DeChristopher’s Statement Regarding Decision to Withdraw His Federal Criminal Appeal

After nearly four years in the criminal justice system and 14 months in prison, I have decided not to continue my appeal through the federal court system. I greatly appreciate the pro bono efforts of Ron Yengich, Liz Hunt and Pat Shea, who have defended me in the courts and articulated the issues of the case. I am also grateful for all the support I have received throughout this process, especially from Peaceful Uprising and the First Unitarian Church in Salt Lake City.

Throughout every stage of this legal process, it has been a predetermined conclusion that I should be punished for standing up to the collusion between government and corporations. Any potential discussion of ethics, justice or the role of citizens has been banished from the court. The government insisted on this back in 2009 when they wrote that such discussions should be relegated to “the public square, not a court of law.” The first development in this case was a preemptive motion by the government to limit our defense, setting the stage for the trivalities which followed. As a result, our defense team has been restricted to debating a narrow range of technicalities rather than the critical issues of the case.

When a conviction is overturned, it is often reported that the conviction was overturned “on a technicality.” Yet is almost never mentioned that every conviction is obtained and upheld on a technicality. Technicalities are the entire foundation of a legal system which has closed itself off to questions of morality and justice. Weighing these questions is the function of a jury, whose role as
designed by our founding fathers is to protect fellow citizens from the government. But Judge Benson and the US Attorney’s Office insisted on preventing the jury from fulfilling their duty.

During the voir dire, the US Attorney’s Office was nearly apoplectic when it was suggested to potential jurors that they should use their conscience. After telling jurors that it was not their job to think about what is right or wrong, Judge Benson blocked evidence of government wrongdoing on the grounds that it would “confuse the jury.” That kind of contempt and fear of citizen participation in government is the hallmark of tyranny and the pathway to oppression.

To continue debating technicalities through further appeals would only serve as a distraction from the critical discussion of how citizens should hold their government accountable. If there is any hope of this country ever getting a justice system worthy of the name, that hope lies in fully informed juries of ordinary citizens, not in judges protecting the interests of the powerful.

Throughout my incarceration I have witnessed the direct personal impacts of a legal system obsessed
with technicalities rather than justice. The prisons I have been in are filled with nonviolent inmates suffering from mandatory minimums and other policies which are completely detached from the best interests of the individual or society. The injustice on display in my case is truly systemic, and we will put our continuing efforts toward creating a system of genuine justice for all.”

– Tim DeChristopher

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State v. Noor in Utah

Jul
17
Utah Criminal Defense Blog, on the topic of  Utah Court
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The Utah Court of Appeals recently filed a memorandum decision regarding an appeal in the case of State v. Noor, involving a man convicted of burglary, forcible sexual abuse and lewdness.

Photo: Malik

The man, Osman Mohammad Noor, was appealing the district court jury’s decision to convict him on the various charges, based on his assertion that there was insufficient evidence presented showing the required intent to commit the crimes of which he was accused.

What the State Said Happened

Noor’s conviction came about after the events that took place in May 2009. Noor allegedly attempted to force himself on the manager of his apartment building, supposedly putting his mouth and hands places they shouldn’t have been. The woman called 911 and Noor was arrested.

On appeal, Noor raised issues that he had not brought up during the trial. The Court of Appeals is pretty picky about not reviewing issues on appeal that weren’t preserved during the original district court trial. In Noor’s case, he didn’t offer any witnesses as a defense, nor did his attorney bring up the topics at that time that he now wanted discussed.

In its memorandum decision, the Court determined that Noor didn’t present an insufficiency of evidence concern at the trial, so they refused to consider it at this time. Noor’s convictions have been upheld by the Court of Appeals.

You Need a Utah Criminal Defense Attorney

This is one of many situations that show how important it is to have a top Utah criminal defense attorney represent you during every aspect of your case, particularly if you end up appealing a decision to the Court of Appeals. An experienced criminal defense attorney will do all within his power to help your case reach a resolution that makes sense.

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State of Utah v Cosby on Appeal

Apr
04
Utah Criminal Defense Blog, on the topic of  Utah Court
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In State of Utah v Cosby, the defendant appealed his probation sentence that also included jail time, claiming abuse of discretion by the trial court. The appellate court made some observations in their memorandum decision, the document filed with the Utah Court of Appeals.

Cosby’s Claims

A trial court may abuse its discretion if it takes a view on a particular case that no reasonable person would presumably come up with. In Utah v Cosby, Cosby claimed that the trial court should not have sentenced him to probation that included a suspended prison term and time in jail.

He further stated that the trial court did not appropriately take into account the evidence he provided, as well as his relationship with his son. Cosby believed that his sentence was excessive and unfair given the extenuating circumstances.

The State, of course, disagreed with Cosby. Their opinion was that he should not be given probation, due to previous problems involving probation (for other misdemeanor convictions). The pre-sentencing report by Adult Probation and Parole wasn’t favorable either.

The Appellate Court’s Decision

The Court believed that the trial court had not erred in State of Utah v Cosby and had taken the defendant’s relationship with his son into account. The trial court just didn’t agree with the defendant that it was a strong enough factor in his sentencing. The Court of Appeals went on to say that Cosby’s sentence was not an abuse of discretion by the trial court and would not be reversed.

The Right to Appeal

Cosby didn’t win his appeal, but he put up a good fight. You, too, have the opportunity to file an appeal when you believe that there were mistakes or problems with a criminal trial you’ve been involved in.

If you feel that a trial court made mistakes in your case, you should contact an experienced Utah criminal defense attorney. Your time and reputation are worth fighting for, and a criminal defense attorney can help you decide if it makes sense to go to the Court of Appeals. Utah criminal defense attorneys aren’t around to judge, just to give you as much assistance as possible. Call an attorney today.

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State of Utah v Brooks

Mar
14
Utah Criminal Defense Blog, on the topic of  Utah Court
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In State of Utah v Brooks, Andrew Brooks appealed the district court’s decision to revoke and reinstate his probation and serve a minimum of 90 days in jail.

Photo: Rian Castillo

Brooks’ Initial Problem

State of Utah v Brooks stems from Brooks’ first case where he was charged with unlawful sexual activity with a minor, a third-degree felony. In that case, Brooks pleaded guilty, was sentenced to a suspended prison term of zero to five years, ordered to serve 101 days in jail, placed on 36 months’ probation and ordered to complete a sex-offender program.

An undisclosed period of time later, Adult Parole and Probation (AP&P) filed an affidavit stating that Brooks had violated his probation by showing certain behaviors and also didn’t complete the sex-offender program.

The Court’s Displeasure

The district court was pretty straightforward in expressing its disapproval with Brooks’ behavior and lack of cooperation with AP&P. After listening to arguments, including allowing Brooks to speak, the court—following the recommendation of AP&P—determined that Brooks’ probation would be revoked and restarted and that he would be required to spend a minimum of 90 days—not to exceed 365 days—in jail. He would be released to complete the sex-offender program after the 90 day minimum sentence and as soon as space in the program was available. The district court gave Brooks credit for time served.

State of Utah v Brooks Appeal

Brooks’ appeal involves his allegations that the district court revoked and reinstated Brooks’ probation without holding a hearing to find out if he truly had violated the current probation terms and then made factual findings to support the new probation. The appeals court decided that the district court did give Brooks ample opportunity to speak at the hearing, and that the district court didn’t make an error.

Ineffective Assistance of Counsel?

Brooks also raised the issue that his trial counsel didn’t object appropriately. By contrast, the appeals court noted that Brooks’ attorney may not have objected to certain parts of the hearing perhaps because he felt that AP&P’s recommendations for Brooks were quite favorable, in light of the circumstances. The appeals court did not find that Brooks’ trial attorney acted ineffectively, either, and pointed out that they also felt AP&P acted generously.

Why You Should Hire the Best

Hiring a Utah criminal defense attorney who knows Utah law back and forth and up and down is one of the best moves you can make when you are in a legal quandary. When your freedom is on the line, make sure that you are represented by a top criminal defense attorney who will give you the best defense possible when it counts the most.

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State v. Vaughn

Dec
06
Utah Criminal Defense Blog, on the topic of  Utah Court
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In State v Vaughn, Raymond Harvey Vaughn appeals two sentences, specifically requesting that the Utah Court of Appeals review two issues: ineffective trial counsel and illegal sentences rendered by the trial court.

Photo: Gerry Dincher

The Backstory

Vaughn pleaded guilty to sexual abuse of a minor in April 2008, a class A misdemeanor. He was sentenced to 365 days in jail, but that sentence was suspended by the court and he was placed on three years’ probation. In October 2009, Vaughn pleaded guilty to enticing a minor over the internet, also a class A misdemeanor.

At a sentencing/revocation hearing in December 2009, Vaughn’s probation was revoked, and he was sentenced to two consecutive one-year sentences at the Utah State Prison. After rendering the sentences, the trial court noted that they would request prison officials to start Vaughn on a rehabilitative program immediately. Vaughn personally expressed his approval of the sentences, stating his desire to get help.

The Next Step

About eight months into Vaughn’s sentences, a review hearing was held. The trial court was advised that Vaughn had not received any treatment while in prison and he wanted to be released. The trial court stated that the case was closed and apparently planned to terminate Vaughn’s sentences.

The Board of Pardons and Parole’s attorney pointed out that the trial court lacked jurisdiction to end Vaughn’s sentences. The trial court acknowledged that point, reinstated Vaughn’s sentences and clarified that he had a year left to serve in prison.

State v Vaughn

In arguing that he had ineffective trial counsel, Vaughn stated that his attorney should not have requested consecutive sentences. However, the Court of Appeals stated that Vaughn’s appeal was untimely because it was filed outside the time period for appeal.

The Court of Appeals also dismissed Vaughn’s claim that his sentences were illegal. They noted that the trial court added the request for rehabilitative therapy in the prison after rendering the sentences. Even though the trial court did not have jurisdiction to require Vaughn receive treatment while in prison, the Court stated that the request didn’t impact Vaughn’s sentences.

Effective Counsel

Even though Vaughn didn’t receive the responses he wanted, he did have the opportunity to make sure that his concerns with the law were reviewed. You should consult with a Utah criminal defense attorney if you believe a case you are involved in needs to be reexamined. Don’t wait and hope that your situation will resolve in your favor. Call an attorney today.

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