Thursday, July 31, 2014

Guest Blog: Why You Need to Do Your Research Prior to Hiring an Appellate Attorney

Written By: Paul J. Wallin, Senior Partner of Wallin & Klarich, A Law Corporation.

If you have been convicted of a felony crime, you have options available to you. A guilty verdict does not necessarily have to be the final judgment. Many criminal convictions may be reversed or modified on appeal.
I cannot stress enough the importance of conducting meticulous research before selecting an attorney to represent you.  Regarding trial lawyers, attorney Julia Jayne handles all of her cases fairly and ethically, she is also a tenacious fighter who will work vigorously to make certain that her clients obtain the justice they desire and deserve.
If you were found guilty of felony charges because you were unable to retain a trial attorney of Ms. Jayne’s caliber, you may still have a second chance through an appeal. However, this time you must ensure that you conduct the adequate research necessary to select the right lawyer to handle your appeal.
An attorney who is experienced in criminal appeals will put forth a strong argument that mistakes or misconduct occurred at your trial. If he or she is successful in doing so, you may be able to have your guilty conviction overturned and receive a new trial.  
In some cases, you may not even face retrial if the District Attorney’s office does not wish to prosecute the matter again.
1.      Consequences of a Felony Conviction
A felony conviction will remain on your permanent record unless it is successfully challenged or expunged. You could face difficulty in the future when applying for a job, state licensure, public benefits or a residential lease. You also lose your right to own a firearm. The following are things you must consider if you want to successfully appeal your criminal conviction:
2.      You have a limited amount of time to file your notice of appeal.
A defendant interested in appealing a felony conviction has only 60 days from the time he or she was sentenced to timely file a notice of appeal.  Exceptions to this timetable are rarely permitted. Because your window of opportunity is narrow, you should not take any chances by trying to accomplish this on your own.
Additionally, almost every court jurisdiction has its own set of rules, called the “local rules.” These rules govern the procedures that must be followed. However, the rules may vary depending on the district within the Court of Appeal. There are six districts in California, some of which are divided into even smaller divisions.
An attorney who has extensive experience with handling appeals will make certain to follow the local rules and can illuminate any errors that may have occurred during your trial.
3.       Your Attorney Must Possess Strong Oral and Written Persuasive Skills
Remember that an appeal is a review of your trial, not a new trial. Your attorney cannot introduce new evidence on appeal. He or she must be able to convince a three-judge panel that either the evidence used against you at trial was insufficient to sustain a guilty verdict, or that legal errors were committed that led to an improper ruling, conviction or sentence.
Your chances of winning your appeal increase if you hire an attorney who can persuasively argue how you would have benefitted from a different outcome at your trial if these mistakes had not been made.
If you are dissatisfied with the result in your case, you need a lawyer who is familiar with appellate level review, who understands where errors can occur at trial, and one who knows how to best challenge those errors at the appellate level.
Trial lawyers are required to persuade juries made up of ordinary citizens, which often involves making emotionally-driven arguments. An appellate lawyer isn’t permitted to try your case again in front of a jury.
If you have been Convicted of a Felony Crime, Don’t Wait Until it is Too Late
A felony conviction, albeit devastating, is not the end of the road. If you or a loved one is convicted of a felony crime, you must act quickly in determining the best option for that individual.  If you conduct thorough research, the chances of you hiring an effective attorney and successfully appealing your criminal conviction increase greatly.

Daniel E. Hall, J.D., Ed.D.: Criminal Law and Procedure, Sixth Edition
Deborah E. Bouchoux, Georgetown University: Legal Research and Writing, Sixth Edition
Wallin & Klarich, A Law Corporation: “Common Grounds for Appeals in California”;

Wednesday, July 23, 2014

Individuals Cannot Get Two Strikes for the Same Criminal Act Even if They are Convicted of Two Strike Felonies

The California Supreme Court recently resolved the issue of whether a single act resulting in two strike-able felony convictions can be used as two strikes. In People v. Vargas, 14 Cal. Daily Op. Serv. 7786, 2014 Daily Journal D.A.R. 9070, Darlene Vargas was sentenced to a third strike under the three strikes law for her burglary conviction in 2008. Vargas had two prior convictions from 1999 for carjacking and robbery which were for the same act; Vargas pled guilty to carjacking and robbery in return for a plea deal of 3 years. For the 2008 burglary conviction the lower court counted the two convictions as two separate strikes for sentencing purposes. Under the three strikes law Vargas would have to serve 25 to life for the third strike. On Appeal, the California Supreme Court concluded that the 1999 conviction should only count for one strike. This meant that Vargas’ sentence should be calculated as a second strike rather than a third which would be consistent with the legislative intent for the three strikes law.

Notably, during sentencing, the trial court has the discretion to dismiss a prior strike-able felony conviction in the furtherance of justice; however there must be “extraordinary circumstances” to exercise that discretion. The California Supreme Court defined Vargas as an example of an extraordinary circumstance in which the trial court should have dismissed the prior strike. The court used the baseball analogy behind the three strikes law to explain their reasoning: you cannot get two strikes for swinging the bat once. Although it is possible to get two strikes during the commission of a crime with multiple criminal acts, such as a robbery where the suspect commits a further crime (for example pistol-whipping a victim which could be charged as an assault with a deadly weapon), the Court found that this case was not one of those circumstances. 

Wednesday, July 2, 2014

“Straw purchasers” of firearms must identify themselves as such

The Supreme Court of the United States in Abramski v. U.S., 134 S.Ct. 2259 (2014) held that misrepresenting oneself as an actual firearms purchaser versus a “straw purchaser” was a material misrepresentation. Abramski was convicted of making a false statement that was material to the lawfulness of a firearm sale and making a false statement with respect to information required to be kept in the records of a licensed firearms dealer. The law in part reads that it shall be unlawful to “make any false or fictitious oral or written statement ..., intended or likely to deceive such [dealer] with respect to any fact material to the lawfulness of the sale or other disposition of such firearm.” 18 U.S.C. § 922(a)(6)
Abramski purchased a handgun for his uncle who could legally own a firearm. The reason Abramski did this was so he could use his old police I.D. and obtain a law enforcement discount on the handgun. The form Abramski filled out was ATF Form 4473 which is required to be filled out by the purchaser of a firearm at the time of the sale. Question 11.a asked whether Abramski was the “actual transferee/buyer” of the firearm. Abramski answered in the affirmative even though the form warned that straw purchasers did not qualify and must identify themselves as such. A straw purchaser is someone who buys a firearm on behalf of another person.
The court held that Ambramski’s misrepresentation was material because the ATF Form was required to be kept by the firearms dealer for future use by law enforcement agencies. The court stated that a straw purchase of a firearm for a person legally allowed to own one has no bearing on the violation. This is because the purpose of the ATF form is not to just prevent prohibited persons from purchasing firearms but to also determine who the current owner of a firearm is. According to the Court, the current owner of the firearm is important information for law enforcement because it helps determine whether someone is a suspect in a crime or whether someone has a firearm in their possession and allowing for straw purchasers would contradict this purpose and defeat the goal of ATF form 4473.