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  1. #1
    Join Date
    Oct 2012
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    6

    Default Can You Get Out of a Probation Violation By Trying to Change Your Plea

    My question involves criminal law for the state of: Arizona

    I plead to agg assault back in 9/2009. NEVER from the day of arrest until day of sentencing did anyone, in anyway, see my offense as one of Domestic Violence. However, at sentencing, the Judge made it a Domestic Violence offense and ordered me to complete Domestic Violence Offender Classes.

    I am no a DV offender. I beat up a co-worker. I have been in a relationship with the same person for the last 20 years. Needless to say I have felt somewhat resentful of the fact I am being forced to in a sense undergo "cancer" treatment when I do not have cancer.

    The plea I signed says nothing about I was pleading to a DV offense. Last week I found out why the Judge designated it a DV offense and ordered the DV offender classes.

    Between the day I signed the plea and the day of sentencing, yes I was an idiot and made victim contact. Of course, he recorded the call and brought it to the Probation Officer charged with writing the Pre-Sentence Probation report.

    It was in the Pre-Sentence Report that the first mention of DV was ever made by anyone. The PO wrote:

    "although the exact nature of this relationship remains unclear, this officer will recommend domestic violence conditions of probation so as to give the probation depart additional monitoring requirements for the protection of the victim."

    Thats what happened. For the last 3 years I have been to 2 DV offender class providers.

    I have been on Social Security Disability since 1997. When I went through the intake at the first provider, I informed them I needed ADA accommodations as it related to absences etc as with HIV there are some days I just can not get out. Additionally, I requested an accommodation of a waiver of their unexcused absence fee.

    Well first time absent, I return and told I owe them $25 for missing the last class because I did not have a doctors note. Refusing to bow to
    extortion for being sick, I was kicked out of the 1st program.

    In program #2, I was 6 weeks away from finishing and I got arrested for disorderly when the urgent care refused to triage my friend who was in obvious medical distress --being arrested got me bounced from program #2.

    I am in program #3, it isn't going well especially now that I saw that Pre-Sentence report and know the reason why I was ordered to DV offender class. If I dont complete this class I will have my probation terminated and will go to prison.

    My questions are these. With the new information that has come to light, filing for Post-Conviction Relief I think is warranted. The Judge essentially tossed my plea, and I feel, at that point should have given me time to consult with my attorney as to the consequences of accepting a plea that made my crime a DV offense and all that comes with that. She didnt. My due process rights I feel were violated.

    Since there in essence was no plea at that point, the Judge no longer had no jurisdiction to pronounce sentence as I had not been adjudicated guilty either by a jury nor did I enter into a plea agreement.

    Next, it is my opinion that the sentence was not in accordance with the law, as I was not charged with a DV offense, nor did I plead to one, yet I was being given the same consequences.

    I also feel PCR is the way to go because if the Pre-Sentence probation officer had not made that statement, the Judge would have given me a different sentence.

    Also, with SSDI being my sole source of income, the Courts have no authority to compel me to pay the class fees required. They can order me to pay but since Congress intended for federal benefits such as Social Security Disability to not be attachable by "legel process" they can not violate me for not paying for the classes and the DV offender class providers are not going to allow me to attend the class without paying for each.

    As you can see I am in a Catch-22 situation. Ordered to do the classes but not allowed to attend. Dont meet the clinical definition of a DV offender yet forced to undergo the treatment. I even had a Clinical Psychologist I had been seeing at the time write a letter stating I did not meet the definition of a DV offender and was not in need of DV offender treatment. He sent it to my Probation officer at the time to no avail.

    In AZ if I file the PCR, the court will appoint an attorney to assist with the actual Petition for Post Conviction Relief. If I go the Motion to Modify Terms of Probation, and do it Pro Per as I have no $ for Private Council, I pretty much can tell you what the result will be, but I am willing to do this if it is the right way to go.

    I dont want my sentence overturned, or be released early or anything else special or out of the ordinary. With the status of my health, both physical and mental, this DV thing is really taking its toll.

    Lastly, knowing that filing a PCR does nothing to intervene and suspend the DV term until the PCR process concludes, I would also file a companion motion with the PCR asking the probation term requiring me to attend and complete DV classes be suspended until a decision on the PCR is made.

    Any suggestions?

    There are a few other PCR issues I think I can raise.

  2. #2
    Join Date
    May 2008
    Location
    Louisville, KY
    Posts
    1,795

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    I have some suggestions but you're not going to like them.
    You HAVE to learn to control your temper and your actions. If not, I see prison for you in the very near future.
    You can set up some consults with criminal law attorneys, and they might give you some generic advice, but your past speaks for itself.
    ~Christina

    Unless a source is cited, anything posted here by me is only my opinion, and is not meant as legal advice.

  3. #3
    Join Date
    Jan 2011
    Location
    Indianapolis, Indiana
    Posts
    346

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    Since the inclusion of the DV components of your plea were part of the pre-sentence investigation and the plea you signed, I don't believe the chances of getting your plea agreement set aside are very good. I would suggest you talk to an attorney.

  4. #4
    Join Date
    Oct 2012
    Posts
    6

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    Please go back and re-read what I wrote.

    The plea I signed says nothing about I was pleading to a DV offense.

    I was not arrested for a DV offense, I was not charged with any DV offense, at no time during plea negotiations did any party bring up the possibility that the plea contain any language to indicate the offense was one of a DV nature. Additionally, ARS 13-3601 defines the basis for designating an offense as one of DV

    A. "Domestic violence" means any act that is a dangerous crime against children as defined in section 13-705 or an offense prescribed in section 13-1102, 13-1103, 13-1104, 13-1105, 13-1201, 13-1202, 13-1203, 13-1204, 13-1302, 13-1303, 13-1304, 13-1406, 13-1502, 13-1503, 13-1504, 13-1602 or 13-2810, section 13-2904, subsection A, paragraph 1, 2, 3 or 6, section 13-2910, subsection A, paragraph 8 or 9, section 13-2915, subsection A, paragraph 3 or section 13-2916, 13-2921, 13-2921.01, 13-2923, 13-3019, 13-3601.02 or 13-3623, if any of the following applies:

    1. The relationship between the victim and the defendant is one of marriage or former marriage or of persons residing or having resided in the same household.
    2. The victim and the defendant have a child in common.
    3. The victim or the defendant is pregnant by the other party.
    4. The victim is related to the defendant or the defendant's spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law.
    5. The victim is a child who resides or has resided in the same household as the defendant and is related by blood to a former spouse of the defendant or to a person who resides or who has resided in the same household as the defendant.
    6. The relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship. The following factors may be considered in determining whether the relationship between the victim and the defendant is currently or was previously a romantic or sexual relationship:
    (a) The type of relationship.
    (b) The length of the relationship.
    (c) The frequency of the interaction between the victim and the defendant.
    (d) If the relationship has terminated, the length of time since the termination.


    Thanks.

  5. #5
    Join Date
    Jan 2011
    Location
    Indianapolis, Indiana
    Posts
    346

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    I understand what you were arrested for. At issue is that you plead guilty and accepted the the pre-sentence report that was available to you for review prior to requesting the court to accept your plea.

    Right or wrong, you and your attorney passed on the chance to raise the DV situation with the court before asking to be sentenced per the recommendations set out in the pre-sentence report.

  6. #6
    Join Date
    Oct 2012
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    6

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    It wasn't until the 5th of this month that I even saw the Pre-Sentence Report. My attorney did, but never brought to my attention the recommendation of the PO. Had I known then I would most assuredly raised it.

  7. #7
    Join Date
    May 2011
    Location
    Illinois
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    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    I don't see where you think a change of plea would benefit you. I have the ability to add conditions based off information I've obtained through investigation, interviewing and pre-screening. You have not indicated why this officer addes a dv provision to this case and maybe you don't know the reason. But our orders stipulates that we can add conditions depending on the reason. Look at your order and see if it does the same.

  8. #8
    Join Date
    Oct 2012
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    6

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    [QUOTE=viol8te;658241] You have not indicated why this officer addes a dv provision to this case and maybe you don't know the reason. /QUOTE]

    Please read more closely as I did indicate such in my post.

    The PO wrote:

    "although the exact nature of this relationship remains unclear, this officer will recommend domestic violence conditions of probation so as to give the probation depart additional monitoring requirements for the protection of the victim."


    - - - Updated - - -

    Quote Quoting viol8te
    View Post
    I don't see where you think a change of plea would benefit you. I have the ability to add conditions based off information I've obtained through investigation, interviewing and pre-screening. You have not indicated why this officer addes a dv provision to this case and maybe you don't know the reason. But our orders stipulates that we can add conditions depending on the reason. Look at your order and see if it does the same.
    If you go back and actually read what I posted instead of scanning it you would see the following was said...

    The PO wrote:

    "although the exact nature of this relationship remains unclear, this officer will recommend domestic violence conditions of probation so as to give the probation depart additional monitoring requirements for the protection of the victim."


    I am not trying to change the plea. That was done unlawfully by the Judge at sentencing. What my intent is to just strip the DV designation from the offense AND terminate the DV probation term and no longer be compelled to attend DV offender class since it was not a DV offense, nor was I charged with a DV offense and I am not a DV offender because I never had an type of interaction with the victim that even came close to the statutory definition in ARS 13-3601 (see text of statue above)

  9. #9
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    Sep 2005
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    72,950

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    You haven't bothered to tell us your conviction charge, so it's not our fault that we have to make assumptions based upon what you have chosen to share. You were convicted of what exact crime(s) under what exact statute(s)? If we infer ARS 13-1204, what subsection(s) were you convicted of violating?

  10. #10
    Join Date
    Oct 2012
    Posts
    6

    Default Re: Can You Get Out of a Probation Violation By Trying to Change Your Plea

    Quote Quoting Mr. Knowitall
    View Post
    You haven't bothered to tell us your conviction charge... You were convicted of what exact crime(s) under what exact statute(s)? If we infer ARS 13-1204, what subsection(s) were you convicted of violating?

    Verbatim from my plea agreement...

    "The defendant agrees to waive the preliminary hearing and plead guilty to"

    Count 1: Aggravated Assault, a Class 3 Felony offense, in violation of ARS 13-1203, 13-1204, 13-610, 13-701, 13-702, 13-702.01, 13-801

    I hope that clarifies things.

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