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