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What Every Lawyer Should Know Prior to Advising Their Client to Enter a Plea of Guilty in a Criminal Case

Plea of Guilty

By Frank Mascagni

 

Collateral Consequences of a Criminal Conviction in Kentucky

I’m nervous when I see newly admitted lawyers or attorneys who practice primarily civil or family court law make an appearance in a criminal defense case. Sometimes even experienced criminal defense lawyers fail to fully advise their clients of potential collateral consequences that will or can occur upon entry of a plea of guilty to a violation or a crime and sentencing on a criminal offense in Kentucky. The purpose of this article is to acquaint or remind all attorneys that practice even one criminal defense case, that there are collateral consequences that don’t appear on the face of the criminal statute that must be considered.

Take some time to ask questions of your client. You are responsible as their counsel and are directed by the Sixth Amendment to provide effective assistance of counsel. This includes advising on the consequences of a conviction. Padilla v. Kentucky, 130 S.Ct.1473 (2010) and Stiger v. Commonwealth , 381 S.W.3d 230 ( Ky. 2012).

This article is space restricted and does NOT include every consequence. It is meant as a general checklist only to use as a starting point to compose your own checklist to insert in your client file at the initial interview. Ask questions of your client in the following areas to generate a conversation as to what is at stake in addition to their freedom, fines and court costs. Focus grasshopper and ready the fight.

Resources:
Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea, 54 How. L.J. 675, 690 (2011) by Gabriel J. Chin and The Advocate, Journal of Criminal Justice Education & Research, Kentucky Department of Public Advocacy, June 2013: Collateral Consequences Of Criminal Convictions In Kentucky by Glenn S. McClister.

Kentucky State Court Considerations
§ RCr 8.08. Pleas
A defendant may plead not guilty, guilty or guilty but mentally ill. The court may refuse to accept a plea of guilty or guilty but mentally ill, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or guilty but mentally ill or if a defendant corporation fails to appear, the court shall enter a plea of not guilty.

§ RCr 8.09. Conditional plea
With the approval of the court a defendant may enter a conditional plea of guilty, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified trial or pretrial motion. A defendant shall be allowed to withdraw such plea upon prevailing on appeal.

“Alford” plea
North Carolina v. Alford, 400 U.S. 25 (1970),was a case in which the Supreme Court of the United States affirmed that there are no constitutional barriers in place to prevent a judge from accepting a guilty plea from a defendant who wants to plead guilty while still protesting his innocence. This type of plea has become known as an Alford plea, differing slightly from the nolo contendere plea in which the defendant agrees to being sentenced for the crime, but does not admit guilt; however, the judgment of conviction entered by the Court will have the same legal effect of a “straight” plea of guilty.

TRAFFIC CITATIONS: can carry points assessed on the client’s drivers license; Google: Kentucky Driver Point System for a list of points per violation; 601 KAR13:025 ; the top 5 violations that impact insurance rates: Reckless Driving, DUI-1st, Driving without a License, Careless Driving & Speeding 30 mph over.

EXPUNGEMENTS: not all originally charged felonies nor misdemeanor cases can be expunged after resolution, or when statutorily eligible based on a dismissal; timeframes differ from immediately to 60 days, 2 years or 7 years: see KRS 431.076, 431.078 and 431.079

A FELONY CONVICTION cannot be expunged.

JUVENILE COURT CONVICTIONS: don’t go away by themselves at age 18; you need to file a petition and order; see KRS 610.330 and “…and felony adjudications are public records and can never be expunged unless there is a diversion agreement with the prosecution at the time the plea is entered. There is no exception to this rule.”

DUI CONVICTIONS affect future DUI charge penalties within 5 years; affect automobile insurance rates and premiums, loss of drivers license, felony enhancement for 4th offense: see KRS 189A.010 ; identify any impact on an out of state drivers license.

Some SEX OFFENSES carry registration as a sex offender; see KRS 17.510

“Almost all sex offenses carry a registration requirement, and the period of time a person must be registered has increased with new legislation every time the law has been amended. Frequently, lifetime registration is required. The statutes are written so that if a person must register, several other prohibitions are triggered: living near schools, childcare centers, etc, and the inability to have any social networking accounts, among other things.”

Courts can order HIV testing: KRS 510.320; can be ordered to give a DNA sample.

Some DRUG OFFENSES can be used in the future as a subsequent offender: see § 218A.010. Definitions for chapter (41)

“Second or subsequent offense” means that for the purposes of this chapter an offense is considered as a second or subsequent offense, if, prior to his or her conviction of the offense, the offender has at any time been convicted under this chapter, or under any statute of the United States, or of any state relating to substances classified as controlled substances or counterfeit substances, except that a prior conviction for a nontrafficking offense shall be treated as a prior offense only when the subsequent offense is a nontrafficking offense. For the purposes of this section, a conviction voided under KRS 218A.275 or 218A.276 shall not constitute a conviction under this chapter;

PFO I and PFO II statues increase the penalties: see KRS § 532.080. Persistent felony offender sentencing if your client has prior felony conviction(s); or if your client is currently charged with a felony

Class D Felony PRETRIAL DIVERSION Program affects the client for up to 5 years until Dismissed-Diverted Order is entered if a background check is performed while in diversion § RCr 8.04. Pretrial diversion Chapter 533.

PROBATION AND CONDITIONAL DISCHARGE Pretrial Diversion Program: (§§ 533.250 – 533.262)

Beware of WAIVERS of appeal and waiver of ability to assert ineffective assistance of counsel in the plea agreement: Commonwealth Of Kentucky, Supreme Court of Kentucky, 2013-SC-270: United States Of America v. Kentucky Bar Association: pending

PROBATION: Some crimes cannot be probated: see § 532.045. Persons prohibited from probation or postincarceration supervision – Procedure when probation or postincarceration supervision not prohibited; § 532.047. Nonavailability of probation or suspension of sentence to violent offender – Exception ;§ 533.060. Probation or conditional release – Effect of use of firearm – Other felonies ;§ 533.065. Effect of person wearing body armor and carrying deadly weapon at time of offense ; “violent offenses “ in KRS 439.3401

Kentucky Drivers License/CDL: Some offenses carry suspension/revocation of license upon conviction

Property Seizure/Forfeiture: see KRS 218A.450, KRS 218A.410, KRS 218A.460, KRS 218A.415(3)

Probation and Parole in Kentucky, see: 501 KAR 1:030. Determining parole eligibility. Some felonies carry parole eligibility of 15%, 20%, 50% and 85%; you should also review the standard conditions and terms of a probated sentence with your client ahead of time.

Federal Court Considerations
Federal Court: Unlike state court, there are presumptions regarding pretrial detention; No parole- most sentences are to serve at 85% service rate; Armed Career Criminal Act; 18 U.S.C. 922(g) gun charges- mandatory minimums; 851 Notices of a prior felony conviction penalties; Mandatory Minimums based on the drug and quantity, economic loss tables in the guidelines; most porno cases-mandatory minimums; Defendants prior criminal record; Criminal History Points- United States Sentencing Commission Guidelines, Title 28 U.S.C. 994

General Considerations
Effects on Citizenship and Immigration (ICE); Certain crimes have harsh consequences upon conviction ( felonies, drugs & crimes of moral turpitude): 8 U.S.C. 1227

Padilla v. Commonwealth of Kentucky, 559 U.S. 356 ,130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

IMPACT ON:

Student Loans

Housing, Public Benefits Programs

Possession of Firearms (State and Federal): KRS 527.040 and federal law: 18 U.S.C. 922(g)

Occupations and Licenses

Civil Rights; Voting: Kentucky Constitution 145(1); Jury Service KRS 29A.080(2) (e); Passport: 22 U.S.C. 2714; holding public office and denial of ABC license

Involuntary Termination of Parental Rights, Adoption/ Effects on Family Court and Circuit Court cases as a “convicted felon”; impact on custody proceedings and pending or future lawsuits

DVO/EPO cases: prohibitions regarding weapons

Current and Future Employment/Background checks/Criminal Record Checks

Here’s a good article from the ABA journal on a recent SCOTUS opinion which expanded what qualifies as “domestic violence” for purposes of losing the right to own a gun under federal law. United States v. Castleman, No. 12-1371, decided March 26, 2014:

http://www.abajournal.com/news/article/ scotus_gives_expansive_meaning_to_ physical_force_in_interpreting_domesticv/

And here’s a link to the ABA website addressing collateral consequences nationwide:

http://www.abacollateralconsequences. org/

Special thanks to Glenn S. McClister, DPA, Frankfort, KY for his help and advice.

Frank Mascagni, III has been practicing criminal law for over 37 years. He is recognized by Best Lawyers in America , as a Kentucky Superlawyer, as a Top Lawyer by Louisville Magazine and as a AV Rated Lawyer by Martindale-Hubbell. His address 701 West Jefferson Street, Louisville, Kentucky 40202-2742 and he can be reached at 502- 583-2831.