Arizona Law Blog

INVOKE THE RIGHT!!

REMAIN SILENT!!

Dear friends:

If you are accused of a crime, the police are NOT your friends!  They will act like they are your friends, just to trick you into talking. 

But their job is simple: to put you behind bars!

NEVER talk to the police, even if you are innocent! 

Nothing you can tell the police will ever help you. 

When the police tell you that your words will be used AGAINST you, they mean it!

So INVOKE YOUR RIGHTS!

REMAIN SILENT!

PROTECT YOURSELF!

You must tell the police:
"I WANT TO REMAIN SILENT AND I WANT MY LAWYER." 

It doesn't matter if you already have a lawyer or not and it does not matter if you can afford a lawyer.

You must say to the police: "I WANT TO REMAIN SILENT AND I WANT MY LAWYER."

You are going to have to keep repeating it, because the police are going to be persistent.  They will keep trying to talk to you over and over. 

Then, if they let you make a phone call or if they leave you alone, they are listening to you!

The police will eavesdrop on everything you say, because they are desperate to hear you say something that can be used against you. 

REMAIN SILENT! 

PROTECT YOURSELF!

The right to remain silent is one of the few rights that we still have that actually means something.... BUT ONLY IF YOU INVOKE IT!!!!!

INVOKE THE RIGHT!

REMAIN SILENT!!!!!

This is a public service announcement from the Law Office of Paul E. Knost, PLLC

Paul E. Knost
Attorney at Law
The Law Office of Paul E. Knost, PLLC
9371 West Van Buren Street
Tolleson, Arizona 85353
Tel: 623-936-1901
Fax: 623-907-4081

myLawyer@PaulKnost.com

www.PaulKnost.com

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In the State of Arizona, you can go to prison for a very long time for helping someone else commit a crime.  Your help can be great or small... it does not matter.  Your help can be planned or spur-of-the-moment... it does not matter.  Your help might even be well-intentioned (in your own mind)... it does not matter.  If you so much as lift a finger in aid of someone committing a crime, you are an accomplice.

Under Arizona law, accomplices are criminally liable for the same crimes that the principal (main person) commits. 

Arizona law defines an accomplice under A.R.S. 13-301 as:

"[A] person, other than a peace officer acting in his official capacity within the scope of his authority and in the line of duty, who with the intent to promote or facilitate the commission of an offense:

1. Solicits or commands another person to commit the offense; or

2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense.

3. Provides means or opportunity to another person to commit the offense."

Basically A.R.S. 13-301 is saying that, if you so much as lift a finger with the intention of helping a person commit a crime, then you are just as guilty of the crime as that person.  This is the statute which lays the groundwork for accomplice liability in Arizona.  The rest of Chapter 3 of Title 13 further solidifies the culpability of accomplices based on others' conduct. 

There is an infinite variety of circumstances in which a person can be liable for a crime that another person actually commits.  It would be impossible to list every set of circumstances in which a person could become an accomplice within the meaning of A.R.S. 13-301 and its sister provisions in Title 13.  But let me give one example that comes up.

Two people commit a robbery, only one has a gun

This falls under (2) "Aids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense."

Hypothetical situation:

A guy and his girlfriend walk into a convenience store.  The guy wants to impress his girlfriend, so he pulls out a gun and tells the cashier to hand over all the money.  The cashier opens the register, pulls out a few crumpled bank notes and hands them to him.  The girlfriend, who thought they were only there to buy a corndog, is completely stunned and shocked that her boyfriend just robbed the cashier.  In fact, she had no idea he had a gun.  In the intensity of the moment, she decides to stick with him.  She is scared and does not know what to do.  She has never been in this situation before.  They both run back to the car and the girlfriend drives.  They go back to her house.  She does not tell anyone what happened.  The police find them and arrest them both the next day.

In this situation, both of them will be charged with Armed Robbery, a Class 2 Dangerous Felony in Arizona.  The girlfriend became an accomplice when she drove her boyfriend to safety after he robbed the place.  If she can prove that he forced her to drive at gunpoint, she would have a defense of "duress."  But otherwise, she will be charged as an accomplice.  The only way she could avoid becoming an accomplice would be to refuse to help her boyfriend by driving.  If he forced her to drive, then she would in effect become a kidnapping victim and would not be an accomplice.  She would, however, have a duty to notify the police of what her boyfriend did as soon as she safely could.  Anything less would earn her an accomplice designation in Arizona.  If the jury finds them guilty, it's a mandatory sentence of 7 to 21 years in the Arizona prison system for both of them.

This is often a very sad situation where one person is more or less a tag-along to another much more dangerous person who is armed and commits the Armed Robbery.  Often, the unarmed person is the girlfriend, or sometimes a younger sibling, or a kid from the neighborhood who likes to hang out with the criminally-oriented guy who likes to rob people.  But if that person does anything whatsoever to aid the actual culprit, and that includes failing to immediately notify the police at first opportunity, then the person is an accomplice under Arizona law and will suffer the same consequences.

And, as I previously mentioned, that is but one example.  The situations are infinite.  Accomplice liability can come up when a person commits a crime and his/her love ones try to help clean up afterward.  It can come up when a person agrees to lie in order to protect someone from being captured.  The list goes on and on. 

The best way to avoid becoming an accomplice: if someone you know has committed a crime, you must turn your back on that person and report them to the police at your first opportunity.  It is no defense that the person is your family member or dear friend.  Turn them in or be charged as their accomplice.  Anything less and you will be facing a harsh punishment under Arizona's mandatory sentencing scheme.

For more on this topic, or to discuss your particular case, please feel free to give me a call at 623-936-1901 for a free confidential consultation. 

God bless all of you!

© 2011, Law Office of Paul E. Knost, PLLC, All Rights Reserved

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It seems that several people have the opinion that "setting aside" a criminal conviction in Arizona pursuant to A.R.S. 13-907 is somehow the same as or equivalent to an expungement.


INCORRECT!

The word "expunge" means "(1) to strike out, obliterate, or mark for deletion; (2) to efface completely: destroy; (3) to eliminate (as a memory) from one's consciousness."


But under A.R.S. 13-907, when a conviction is set aside, it is not obliterated.  It is not effaced completely.  It is not eliminated entirely.  The State can still use it against you in future prosecutions.  You still have to disclose it when filling out applications for things, etc.


Folks, that's not an expungement! 

Anyone selling you an expungement in Arizona needs to do their homework.  The best you can do in Arizona is to have the conviction set aside. 

You can try your luck at getting a pardon from the Governor of Arizona.  More on that here.

For more on this topic, or to discuss your particular case, please feel free to give me a call at 623-936-1901 for a free confidential consultation. 

God bless all of you!

© 2011, Law Office of Paul E. Knost, PLLC, All Rights Reserved

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Lately, I have received a lot of calls from people asking for help in getting an Arizona expungement.  Oh, how I wish it were allowed in Arizona!

There is no expungement of adult criminal convictions in the state of Arizona.  But the myth persists that there is. People are surprised when I explain that Arizona has no expungement.  They do not want to believe it.  Unfortunately, there is a lot of misinformation out there.  Hopefully, this blog entry will help to set the record straight.

I recently wrote about the statute in Arizona entitled A.R.S. § 13-907. Setting aside judgment of convicted person on discharge; application; release from disabilities; exceptions. 

This is not an expungement statute.  As the name implies, it allows you to "set aside" a conviction after you are done with probation and/or jail and/or prison time.  It also allows you to be "released from disabilities" such as the disability of not being allowed to vote and not being allowed to possess a firearm.  It contains several exceptions.

But A.R.S. § 13-907 does not allow you to start fresh with a clean record the way a true expungement statute would.  Even if the court grants your motion to have the conviction set aside, you are still required to disclose the fact that you were convicted, and a felony conviction can still be used against you as a historical prior if you are ever charged with another felony crime.  The Court of Appeals of Arizona said:

"The statute itself is proof that restoration of civil rights under section 13-907 does not expunge or remove the fact of conviction in Arizona. The statute allows an otherwise admissible prior conviction to be used for subsequent prosecutions as if the judgment of guilt had not been set aside. A.R.S. § 13-907(A)."  (Russell v. Royal Maccabees Life Insurance Company; 193 Ariz. 464, 268 Ariz. Adv. Rep. 51, 446, 447).

"See also Op. Atty. Gen. Nos. I83-042 (1983) ("The language of A.R.S. § 13-907 itself shows that expungement does not destroy the fact of conviction."); I89-082 (1989) ("[A] court order using either the term 'expunge' or the term 'set aside' does not require the actual obliteration of the fact of conviction from ... public ... records.")." Id.

So, when applying for jobs, you have to disclose that you had a conviction, even if it was set aside.  When filling out forms and applications for loans, insurance, etc., if it asks whether you were ever convicted of a crime, you still have to disclose your conviction, even if it was set aside.

The only thing that one could do is apply for a pardon from the Governor via the Board of Executive Clemency.  Basically, you apply to the board, they review your application, then vote on what recommendation to make to the state Governor about whether she should grant or deny your pardon.  The procedure is described in the Arizona Administrative Code:

“R5-4-201. Pardon

A. Unless prohibited by law, an individual who was convicted of an Arizona felony offense may apply for a pardon.

B. To apply for a pardon, an eligible individual shall submit to the Board a completed application form obtained from the Board.

C. In addition to the application form required under subsection (B), an applicant shall submit other information and documents that the Board requests to assist it in deciding whether to recommend a pardon.

D. If an inmate applies for a pardon, the Board shall request that the Department review the application and verify whether the inmate is eligible to apply for the pardon.

E. After receiving a complete application from an eligible applicant, the Board shall schedule a hearing and provide advance written notice to the applicant of the date and location of the hearing.

F. At the hearing, the Board shall take one of the following actions:

1. Vote to deny recommending that the governor grant a pardon and notify the applicant in writing of the Board's decision within 10 work days.

2. Vote to recommend that the governor grant a pardon and notify the applicant in writing of the Board's decision within 10 work days.

G. If the Board votes to recommend a pardon, the Presiding Officer shall designate a Board member to prepare and send to the governor a letter of recommendation. The letter of recommendation may include a statement of individual Board members' reasons for voting to recommend a pardon. Board members who voted not to recommend a pardon may prepare and send letters of dissent to the governor.

H. If the governor denies a pardon, the Board shall notify the applicant in writing of the governor's decision within 10 work days after receiving notice of the governor's decision.

I. If the Board votes not to recommend a pardon for an applicant or if the governor denies a pardon, the applicant shall not apply again for a pardon for three years from the date of the Board's decision.”

So, there you have it.  Arizona has no expungement.  But you can apply for a pardon from the Governor.  I personally do not have any experience in the realm of executive clemency (pardons).  It seems to me, however, that there would be very little chance of receiving a pardon from the current Governor, especially taking into consideration the link between the Governor (and other Arizona politicians), and the private prison industrial complex here in Arizona.  In my opinion, they are not in the business of being merciful.  One must ask oneself if the current group of leaders here in the state of Arizona are concerned about giving convicted felons a second chance in life, or if their concern seems to lie elsewhere.

But I leave that discussion for another future post.

As for now, let the myth of Arizona expungement be exposed for what it is: a myth.  I am aware of numerous web sites out there which proclaim the ability to help with an Arizona expungement.  But unless they have some grand plan to lobby the Arizona legislature and convince them to have a heart and re-write the statute, I do not think they will be helping with anything other than a motion to set aside and release from disabilities, or possibly a petition for executive clemency.  The sad reality is that, here in Arizona, once the Scarlet Letter is pinned to your chest, it can never be removed.  Whether your felony conviction is set aside or not, you will always have to disclose it, and it will always be on your record.

The questions then becomes: is it even worth bothering to have the conviction set aside?  Yes, it is.  Even though it is not a full expungement, it still gives you the opportunity to restore your right to vote and other rights.  Some employers might be more inclined to overlook the conviction if it has been set aside.  After all, it is not your fault that Arizona refuses to allow expungement like so many other states do. 

I wish all of you the best.  God bless each and every one of you!

© Law Office of Paul E. Knost, PLLC; All Rights Reserved

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In Part 1 of this article, I discussed a situation where a person is in the Arizona Department of Corrections (Arizona state prison) and that person also has an Immigration hold on them.
 

Here, I am going to talk about an earlier stage in the process: when a person is detained in the Maricopa County Jail awaiting trial and they have an Immigration hold on them.  I am going to explain why the Maricopa County Jail is filled with mostly people who are citizens of countries other than the United States.  It is not that those people are committing most of the crime.  That is simply not the case.  It is because of the non-bondable status of people who have an ICE hold on them.

Keep in mind that, when a person is in the Maricopa County Jail awaiting trial, they have not been sentenced yet.  This means that the person has not been found guilty of anything.  The only exception to this is when a person has been found guilty, is facing a prison sentence, and is in the Maricopa County Jail awaiting sentencing. 

In general, there are two ways for a person to be found guilty: (1) by accepting a plea agreement in exchange for a reduced sentence; or (2) by a jury after a trial has been conducted.

When a person is in the Maricopa County Jail, and has not been adjudicated guilty of anything yet, it is standard procedure for the United States Immigration and Customs Enforcement to place an ICE hold on the individual under the following circumstances:

(1)           The person, who is not a citizen of the United States, is facing state criminal charges and is in the United States without permission, or

(2)           The person, who is not a citizen of the United States, is facing state criminal charges, and is in the United States with permission, but the pending criminal charges are likely to make the person deportable if found guilty.

Situation 1

In the first situation, where the person is in the United States without permission and is being accused of a criminal offense, ICE places a hold on the person.  This is true even if the court has set a bond.  When a person has an ICE hold on them, they cannot bond out.  In fact, even if they post the bond set by the court, they will not be released!  The ICE hold will keep that person in the jail until the state charges are resolved.  It is not advisable for a person in this situation to post bond, because they will not be entitled to any credit for the time they have served, beginning on the day that the bond was posted. 

Once the ICE hold is in place (usually from the moment the person is booked into jail), then ICE will take the person into their custody upon final disposition of the state charges.  It does not matter what the final outcome of the state charges are.  The charges could be dropped; the person could be found not guilty; the person could be sentenced to probation, or prison.  Whatever occurs, the person will be remanded to the custody of ICE once the state charges are fully dealt with, including a state prison sentence, if any.

When the person gets to the detention center for ICE, the person needs to consult an experienced immigration lawyer.  Often a person will be offered a "voluntary departure" in which they can agree to be removed from the United States.  But that is only a good deal for a person who has no chance of obtaining a visa anyway, or who simply no longer wishes to remain in the United States.  The scenarios that arise here are numerous and it is important that a person consult with his/her immigration lawyer at that point before deciding to sign any agreements with the government.

Situation 2

This comes up where a person does indeed have permission to be in the United States (usually in the form of a visa), but the state charges that the person is facing will, if convicted, make the person deportable.  I see this in situations where the person has been a lawful permanent resident for a long time, but they are now being charged with something like Aggravated Assault (with a weapon), or a domestic violence offense, or a crime involving fraud such as forgery or fraudulent schemes and artifices, or any number of state crimes that are classified as "aggravated felonies" and/or "crimes of moral turpitude" by ICE.  (Consult your immigration lawyer for more details on this.)

A person in this situation will not be able to bond out of the Maricopa County Jail.  They have to wait in the jail until their state charges are resolved.  It is important for a person in this situation to have a criminal defense attorney and an immigration lawyer who are consulting with one another as the case progresses.  The immigration lawyer can help guide the criminal defense lawyer through the plea negotiation process and warn of potential pitfalls.

Conclusion

For the most part, only citizens of the United States are allowed to actually bond out of jail here in Maricopa County, Arizona.  While it is true that some state crimes are non-bondable under state law, the fact remains that ICE holds have created a situation in which the county jail is the de facto antechamber to the immigration courts and their privately run prison facilities in Eloy and Florence, Arizona.  For better or for worse, that is the situation.

For more on this topic, or to discuss your particular case, please feel free to give me a call at 623-936-1901 for a free confidential consultation. 

God bless all of you!

© 2011, Law Office of Paul E. Knost, PLLC, All Rights Reserved

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What if a person is serving time in the Arizona Department of Corrections (prison), and they simultaneously have a "probation tail" and an "ICE hold" or "Immigration hold"?

First, let me define some terms.  A "probation tail" is when a person accepts a plea agreement in which one or more counts require a prison sentence and one or more other counts require a term of probation after the prison sentence is completed.  The person serves his/her prison sentence, then is released to probation. 

An "ICE hold" is when the United States Immigration and Customs Enforcement places a "hold" on a person who is detained on state and/or local charges and ICE suspects that the person is either (1) in the United States with no permission, or (2) in the United States with permission but is likely to lose that permission due to their criminal charges and/or convictions.  When a person is released from prison or jail and they have the "ICE hold" on them, they are not released to the streets.  Instead, they are released to the custody of the United States Immigration and Customs Enforcement and generally detained at one of the private prison facilities in Eloy or Florence, Arizona, while the merits of their immigration case are evaluated.

A very common situation arises when a person accepts a plea agreement that requires a jail or prison sentence and a probation sentence "probation tail" upon release, and that person simultaneously has an "ICE hold" on them.  In this situation, the "ICE hold" wins out, and the person will be sent directly to one of the ICE detention facilities upon their release.

It is common for people to incorrectly believe that their “probation tail” is ticking away while they are in ICE custody and/or outside of the United States.  For example, an individual might be released from prison to ICE, then quickly deported to his home country.  This individual might have been sentenced to a 3 year "probation tail," therefore he believes that he need only stay in his home country for 3 years before returning to the United States.

WRONG!

The probation is not ticking away while the person is outside of the United States!  It is frozen in time.  It only begins when (and if) the person returns to the United States.  But the person must return to the United States legally, otherwise he/she will be in automatic violation of the probation the moment they step across the border into the United States without permission.  In other words, the probation starts when they are back in the country—and unless the person obtained permission to re-enter, the probation starts with an automatic violation: the crime of illegal re-entry.

In situations such as this, it is extremely important that a person consult with a good immigration lawyer to weigh all of their options.  I focus on criminal defense and personal injury cases and I do not practice immigration law, but I can say with a fair bit of certainty that most people who serve a prison sentence (especially if it lasts for more than one year), are usually deported and unlikely to be able to obtain permission to re-enter the United States legally.  Just think of how hard it is for people with a perfectly clean record to obtain a Visa these days!

Another important thing to remember: when a person with a “probation tail” re-enters the United States without permission, and the probation begins with the crime of illegal re-entry, that person is now subject to the full prison sentence available under that probation.  That, of course, is in addition to any federal time the person may be eligible to receive!  In situations like this, a person could be facing literally decades of incarceration time and not even realize it!

So, bottom line—if you serve time in prison, then get deported and have a probation sentence that was supposed to begin upon your release, you need to be aware of:

1)             the probation sentence is on hold while you are away from the U.S.A.;

2)             the probation sentence will begin if and when you re-enter the U.S.A.;

3)             if you don’t have permission to re-enter, you are in automatic violation of the probation the moment it begins;

4)             you need to contact an immigration lawyer to discuss your full range of options;

5)             if you served a prison sentence in the U.S.A., it is not likely you will be able to re-enter with permission (but you need to talk to an immigration lawyer because every case is different).

Conclusion: the system is harsh.  It is often harsher than people realize until it is too late.  It is important to educate yourself and consult with an experienced lawyer and never assume anything.

© 2011, Law Office of Paul E. Knost, PLLC, All Rights Reserved

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Oh, my Lord Jesus Christ, I dedicate my practice of law to You. 

Just as it was You who led me into this profession,

So shall it be You to whom my work is dedicated.

Let me be an instrument of your Mercy and Grace;

Let me be a tool of only Your will,

Let me be a lantern shining Your Light.

Through You, Lord Jesus, I ask that justice be granted to Your children.

Through You, Lord Jesus, I ask that Mercy and Kindness endure here on Earth.

And through You, I ask for the strength to be your faithful servant.

I will pick up my cross, and I will follow You for all of my days.

I will proclaim Your Glory in every place that I go.

I will carry my cross and follow You.

Oh, lead me Lord Jesus Christ,

And I shall be an advocate for only Your Truth, Your Justice, and Your Mercy.

Amen.

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The word "expunge" means: "(1) to strike out, obliterate, or mark for deletion; (2) to efface completely: destroy; (3) to eliminate (as a memory) from one's consciousness."  Source: http://www.merriam-webster.com/dictionary/expunge

A legal definition of "expunge" is:  "To intentionally destroy, obliterate, or strike out records or information in files, computers, and other depositories. For example, state law may allow the criminal records of a juvenile offender to be expunged when he reaches the age of majority, to allow him to begin his adult life with a clean record. Or, a company or government agency may routinely expunge out-of-date records to save storage space."  Source: http://www.nolo.com/dictionary/expunge-term.html

There is no Expungement in Arizona for adult criminal convictions.  If you have been convicted of a misdemeanor or felony criminal offense in the State of Arizona, the best you can do is have it "set aside."

Arizona Revised Statutes § 13-907(A) provides:

"Except as provided in subsection D of this section, every person convicted of a criminal offense, on fulfillment of the conditions of probation or sentence and discharge by the court, may apply to the judge, justice of the peace or magistrate who pronounced sentence or imposed probation or such judge, justice of the peace or magistrate's successor in office to have the judgment of guilt set aside. The convicted person shall be informed of this right at the time of discharge."  (emphasis added).

But what does it mean to have the judgment of guilt set aside?  The statute reads on:

"If the judge, justice of the peace or magistrate grants the application, the judge, justice of the peace or magistrate shall set aside the judgment of guilt, dismiss the accusations or information and order that the person be released from all penalties and disabilities resulting from the conviction…"  A.R.S. § 13-907(C).  (emphasis added).

The statute goes on to list all of the crimes that are not eligible to be set aside.  Some (not all) of them are: crimes involving sexual motivation, violent crimes, crimes in which the victim is under the age of fifteen years old. 

Many people who seek to have their convictions set aside in Arizona do so because they want to "clean up their record" in hopes of finding a job, getting a loan, or joining a profession or the military.  But it is important that one realize the fact of the conviction will remain with them for the rest of their life.  As a practical matter, it is far better to disclose that it happened, and that it has been set aside, rather than try to hide it.  A simple FBI background check will reveal every conviction and even every arrest. 

For more information about this, or if you need assistance having an old conviction in Arizona set aside, feel free to give me a call at 623-936-1901 or e-mail at myLawyer@PaulKnost.com

© 2011, Law Office of Paul E. Knost, PLLC, All Rights Reserved

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