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  1. #1
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    Default 10th Circuit Court of Appeals Case Law

    My question involves criminal law for the state of: KY


    In 2006 I entered Pretrial Diversion for 5 years. nolo contendre, or more specifically an "Alford Plea" (sp?), on a class D felony of receiving stolen property.

    My Character: At that time I was in the military, A full time college student, and had recently founded a Nonprofit which benefits Autistic and other special needs children.

    Since then, I have obtained both an MBA and an MSRE, and am considered to be a great asset to my community. My problem comes in obtaining professional licensure.. ie Securities, Real Estate, insurance etc.. Due to the "conviction".

    I have read many a controversy surrounding wether a pre-trial diversion is a "conviction", and most state laws across the country say that it is.
    BUT In December of 2009, The United States Court of Appeals Tenth Circuit, found and published that a pre-trial diversion DOES NOT constitute a conviction.

    (Arroyo v. Starks, 2009 WL 4827370 (12/16/09) (Published) - There is no habeas remedy to challenge a case resulting in pretrial diversion. Such a case at most anticipates a conviction. It does not involve a conviction.)


    Does this mean anything, and how does it affect a person on "pretrial diversion"? I would love to truthfully answer "NO" when asked if I'd been convicted of a Felony.

    Any help is greatly appreciated.















    Recently, (12/2009),

  2. #2
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    If you entered into an Alford plea you would be talking about a deferred sentence, not pretrial diversion. In a deferral where you enter a plea, it is possible to be convicted of the offense as a result of the plea but the conviction is not entered if you successfully complete deferred probation. The specifics vary by court and sometimes by charge or statute authorizing the deferral.

    The Arroyo case would be relevant to habeas petitions in the 10th Circuit.

  3. #3
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    No, in my specific case, the court acknowledged it as a "pretrial diversion", And in lieu of me completing 5 years probation, my case would be dismissed...
    Doesn't a conviction have to have both a finding of fault/guilt AND a sentance for said crime?


    "In 1973, the National Advisory Commission on Criminal Justice Standards and Goals defined pretrial diversion as "halting or suspending before conviction formal criminal proceedings against a person on the condition or assumption that he will do something in return" (U.S. Department of Justice, p. 27)."


    What I need to know is wether or not a pretrial diversion in and of itself is a conviction. What precedent might overrule a state law that says it is?
    I don't mind looking up and reading on the cases, but I'm not an attorney and do not fully understand the segregation of the federal and state Court systems.
    When I walk into an attorneys office with the hopes of hiring him to help me achieve the professional licensure I need, I would like to have a supreme court case to look upon as guidance...

    I have the funds readily available to pursue my rights, if I can in anyway establish in a KY state court that a diversion anticipates, but does not involve a conviction.

    Thank you for your response.

  4. #4
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    Default Re: 10th Circuit Court of Appeals Case Law

    Kentucky is not in the 10th Circuit, you would need to find case law for the 6th Circuit/and or specific state case law.

    Here is the case you cite, copy and paste any relevant citations. This deals with a suit for 1983 damages and whether a pre trial diversion is a NON conviction for false arrest purposes, but again, point out what you believe to be relevant.

    http://caselaw.lp.findlaw.com/data2/...th/083121p.pdf

  5. #5
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    Typically pretrial diversion is not considered a conviction because pretrial diversion doesn't involve the court adjudicating you of anything like after you take a plea or after a trial if you are convicted.

    Normally, if you complete pretrial diversion, the state attorney will drop the charges against you as long as you've met all the conditions of the pretrial diversion program.

    Nicolas Babinsky, Esq.
    SealMyRecord.com

  6. #6
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    Bor,

    Here I have taken exerps of what I think is pertinent.




    "Because we have determined that the Kansas pre-trial diversion agreements
    are not outstanding convictions
    and therefore these § 1983 claims impugning their validity are not barred by Heck, we need not decide whether Heck applies when the plaintiff lacks an available remedy in habeas" (Pg. 8)

    "Order I at 6; Order II at 5 (emphasis added). Contrary to the district court’s
    conclusion, under Kansas law a “[d]iversion is . . . a means to avoid a judgment of criminal guilt,” the opposite of a conviction in a criminal action." (pg. 6)

    I know that they referred to Kansas law, and that this is not the circuit over Ky.... But if their is no cut and dry definition of "conviction" in the state (KY), What steps would I need to take to MAKE VALID my statement that a pretrial diversion is NOT a conviction, AND CANNOT be used in determining a persons' character/moral terpitude? I have the money and know the people, ie senetors and congressmen... What can I do?

    When I was charged with the crime, I maintained my innocence. The original crime was 1st degree burglery. I was facing 20 years. They offered this pretrial diversion, reducing the charge to receiving stolen property. I was told by my attorney that it would not affect my ability to obtain licensing/jobs etc, and I wouldn't have to disclose the diversion as a conviction. The ONLY reason that I accepted the diversion was for fear of trial and the impending 20 year sentance. I had never committed a felony, nor will I, so what difference would 5 years of an UNsupervised diversion make.. Hmf..



    But recently, I have uncovered undisputable evidence that the crime never even occured.. That the items that were claimed to have been stolen, never existed, and the officer involved in collecting evidence and testifying on behalf of the state, is directly related to the "victim"-- After the case, the officer resigned.. He has since, openly admitted to conspiring with the "victim" to obtain insurance money on the items that were "stolen". What can I do now? My life will never achieve the greatness it could have if I wasn't cornered by these frivelous actions.

    Sorry its so long guys... Thank you in advance.

  7. #7
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    Any feedback?

  8. #8
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    I believe it all depends upon whether the judge formally accepted your plea. My understanding is that the essence of pre-trial diversion is you enter a plea but the judge withholds the acceptance of the plea. Without the acceptance of the plea or agreeing with a jury's verdict, there is no adjudication of guilt ergo you have not been "convicted."

    Just keep in mind that if you are applying for a job requiring a security clearance the question will be more like "have you EVER been charged with any felony offense?"

  9. #9
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    Here is a link to the actual pretrial diversion acceptance form...

    http://courts.ky.gov/NR/rdonlyres/38...592F/0/345.pdf


    I hope this helps if it can establish whether there was an adjudication..

  10. #10
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    Default Re: Can Pretrial Diversion Be Considered a Conviction

    Your complaint seems to be that your sentence is being treated as a conviction for some purpose under the laws of your state. You did enter what amounts to a guilty plea, so there's no reason to believe that's not an entirely permissible result. It's always easier to deal with facts than to try to guess at the issues in the abstract, in case you have facts to share.

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