#dutch john

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Dutch John, Utah

Dutch John, Utah

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Goodbye Dolly, Hello Flaming Gorge Reservoir

Goodbye Dolly, Hello Flaming Gorge Reservoir

As much as we hated to leave our mountain and our adopted pet sheep Dolly, it was time to move on. We had heard a lot about Flaming Gorge and the pictures we had seen looked amazing so we chose that for our next destination. But first, we had to get back down that awful road in Uinta National Forest. The road was just as bad as we remembered but at least going back we knew what to expect and when…

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Dutch John — a Utah town fishing for a future

Dutch John • This Daggett County hamlet has been misunderstood from the start. Area residents coined the name in the 1860s because immigrant John Honselena wintered his horses on the flats where the community now sits. Honselena, as it turns out, was German, not Dutch. The name stuck in 1957, when Bureau of Reclamation officials began preparing to raise Flaming Gorge Dam on the Green River by building living quarters ...

Salt Lake Tribune: Dutch John — a Utah town fishing for a future. Dutch John, Daggett County, Utah — The inhabitants of Dutch John clash with Daggett County leadership regarding the future of Dutch John. Rich King Attorney at Law 335 West 50 North, Suite E19 Vernal, Utah 84078 [phone] www.uintahbasinlaw.com

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New York Times: "In a pair of cases argued Tuesday, the Supreme Court considered what to do when people convicted of capital crimes are mentally incompetent and so unable to help their lawyers with challenges to their convictions and sentences."

Rich King Criminal Defense Lawyer Windsor Building East 335 West 50 North, Suite E19 Vernal, Utah 84078 Phone: [phone] www.uintahbasinlaw.com 

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Katamine. What using a club drug to treat depression reveals about the human brain. The most intriguing way of putting it is that a notoriously unpredictable and dangerous club drug may be the solution to depression.

Rich King Criminal Defense Lawyer Windsor Building East 335 West 50 North, Suite E19 Vernal, Utah 84078 Phone: [phone] www.uintahbasinlaw.com 

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Police Stops of Vehicles in Utah for Tinted Windows

Police often stop out-of-state vehicles in Utah under the pretext that the windows are too heavily tinted, then arrest the driver for DUI or marijuana possession because the officer "smells alcohol," or "smells marijuana." I have successfully applied a Utah Court of Appeals case in convincing judges to suppress evidence seized during stops for tinted windows. 

In State v. Friesen, 988 P.2d 7 (Ut App 1999), a police officer stopped a Wyoming vehicle for not having a front license plate upon the assumption that Wyoming, like Utah, requires vehicles to display a front plate. The Utah Court of Appeals upheld suppression of evidence seized by Fourth District Court upon the grounds that the officer admitted he did not know whether or not Wyoming requires a front license plate at the time of the stop.  Although Wyoming does in fact require a front license plate, the officer did not know that to be the case at the time of the stop.

Utah trial courts have applied the same reasoning to window tinting cases because states have differing levels of tint, which are legal in the home state, but are illegal in Utah.

Rich King Criminal Defense Lawyer Windsor Building East 335 West 50 North, Suite E19 Vernal, Utah 84078 Phone: [phone] www.uintahbasinlaw.com 

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The Tenth Circuit Cranks up the Heat: Expungements Under Utah Law and the Federal Felon-In-Possession Statute

The Firearms Owners Protection Act and Felony Expungements

The federal felon-in-possession statute, the Firearms Owners Protection Act (FOPA), makes it unlawful for felons to possess firearms. FOPA applies to persons convicted of a crime punishable by imprisonment of a term exceeding one year, and thus includes felons convicted under Utah law. FOPA does provide, however, that felons can possess firearms if their convictions have been expunged, and under Utah law, a felony can be expunged. Therefore, it would appear that expungement of a felony under Utah law restores a felon In recent years, however, the United States Court of Appeals for the Tenth Circuit has placed strict limitations on the nature of felony expungements that allow a felon to possess firearms under FOPA.

State of Wyoming ex rel. Crank v. United States and expungement under FOPA

In State of Wyoming ex rel. Crank v. United States, the Tenth Circuit held that FOPA prohibits a felon from possessing firearms if a state procedure for expungement does not In Crank, the Court reviewed an expungement statute passed by Wyoming with the intention, and for the express purposes of: 1) qualifying felons to lawfully possess firearms under FOPA; 2) allowing felons to apply for Wyoming permits to carry concealed weapons that could not otherwise be issued under FOPA; and 3) allowing felons to purchase firearms from a federally licensed firearm dealer without submitting to a background check as required by federal law.

When Wyoming enacted its expungement statute in 2004, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent the Wyoming Attorney General a letter notifying Wyoming that: 1) because federal law preempts state law, federal law governs the definition of The ATF stated that Wyoming

Wyoming refused to comply with the ATF Thus, in the Tenth Circuit, a felon with his record expunged by a state can still face criminal liability under FOPA for possessing firearms if state law does not completely remove the effects conviction.

Utah felony expungement and felons-in-possession after Crank

The Tenth Circuit’s holding in Crank confirms that it has joined the Fourth and Sixth Circuits, which look beyond a The Fifth, Seventh, Ninth, and D.C. Circuits, on the other hand, look solely to the language of the“certificate” of expungement for an express provision regarding firearms, and if the certificate is silent, or expressly restores the right to possess firearms, then a felon cannot be charged under FOPA. The circuits that have rejected the approach of Crank do so because they reason that: 1) the plain language of FOPA requires a court to look solely to the certificate restoring civil rights upon expungement; and 2) looking solely to the language of a in which the state expungement sets the bait and FOPA springs the trap, making prosecution under FOPA subject to the defense of entrapment by estoppel.

Until either Congress, or the Supreme Court of the United States, resolves the split in the circuits, however, district courts in the Tenth Circuit must address the holding of Crank in determining whether FOPA prohibits a felon from possessing firearms after a felony conviction is expunged under state law. Unfortunately, the Tenth Circuit has not addressed the issue of whether Utah Crank does provide a simple holding to guide courts confronted with a felon charged under FOPA after a Utah expungement: FOPA prohibits a felon from possessing firearms if a felony expungement under Utah law does not

In that regard, it is worth noting that Crank quotes, with approval, the ATF: any state statute cancompletely remove the effects of a conviction upon expungement, as required by Crank.

Conclusion

Crank leaves felons with convictions expunged by Utah in uncertainty. A defendant charged under FOPA after a felony conviction has been expunged by Utah, however, does have several powerful defenses. A defendant can argue: 1) expungement of a felony by Utah completely removes the effects of a conviction as required by Crank; 2) Crank and the Wyoming statute under consideration are distinguishable from UtahCrank as unrealistic and unsound, and adopt the approach of the Fifth, Seventh, Ninth, and D.C. Circuits; and 4) prosecution under FOPA after Utah has expunged a felony is barred by the defense of entrapment by estoppel.

*Adapted from an article published by the author in Fall 2011 issue of The Defender, the quarterly journal of the Utah Association of Criminal Defense Lawyers.

Rich King Attorney & Counselor at Law Windsor Building East 335 West 50 North, Suite E19 Vernal, Utah 84078 Phone: [phone] www.uintahbasinlaw.com 

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Utah's Juvenile Justice System: A Concise Guide for Juveniles Charged With Crimes In Utah

Utah’s Juvenile Justice System

Most parents are lost when their child is charged with a crime in a Utah juvenile court because the process is shrouded in secrecy. This short guide provides parents with a basic overview of the Utah juvenile justice process so that parents can make informed decisions that are in the best interests of their children. 

Utah juvenile courts have jurisdiction of people under the age of 21 for crimes committed under the age of 18. Your child enters the system when a law enforcement officer files a citation or police report with the juvenile court.

Although an officer can take your child into custody, in most cases children are not taken to a juvenile detention center (jail for juveniles). Instead, a child is allowed to return home, and the officer presents a citation to the juvenile court. If the officer cannot locate a parent, the officer can take your child to a “youth service center” or “youth receiving center” where your child is kept until a parent can be reached. In the Eighth District (Uintah, Duchesne, and Daggett Counties) the youth service center is at Split Mountain Youth Center at:

Split Mountain Youth Center 830 East Main Street Vernal, Utah 84078 Telephone: [phone]

If the officer does not allow your child to return home, the officer arrests your child and takes your child to a detention center. In the Eighth District, the juvenile detention center is Split Mountain Youth Center.

The juvenile court must then hold a detention hearing within two working days of the arrest. At the detention hearing, the judge must order your child released unless the judge determines that your child is a “flight risk” or is a threat to others. Bail is not available to juveniles. If your child is already in custody, a case manager from Juvenile Justice Services will be assigned to the case, which will proceed to arraignment or a preliminary hearing.

Nonjudical Closure

After a police officer has filed a citation with the juvenile court, a court probation officer will determine whether the juvenile court has jurisdiction. The probation officer often consults with the county attorney’‘s office regarding the case and charges.

The juvenile court will then request that your child and at least one parent come to the court to meet with a probation officer. The parents and child are not required to meet with the probation officer. If they do not meet with the probation officer, a petition will most likely be filed with the juvenile court accusing the child of criminal wrongdoing.

If parents and child decide to meet with the probation officer, then they have the right to have an attorney represent them at the meeting. At the initial meeting, the probation officer will gather information about your child, including grades and home environment. The probation officer will discuss the case, and your child may admit to wrongdoing at this time. If both child and parents admit to the allegations against your child, then the probation officer can reach a nonjudicial closure. A nonjudicial closure might require your child to be confined to detention, pay a fine, attend a class, or perform community service.

The probation officer is an important part of the juvenile justice system. Parents should retain an attorney to speak with the probation officer regarding possible nonjudicial closure or a possible dispositional recommendation.

Arraignment 

If your child denies the allegations in a citation or police report, the probation officer will usually file a petition with the juvenile court and the parents will be served with a summons to attend an arraignment. If you are served with a summons, then you should retain an attorney to represent your child at the arraignment.

At the arraignment, your child will either admit or deny the allegations of the petition. If your child admits the charges, then the court will proceed with disposition (sentencing). In some cases, the court may postpone disposition until probation can complete a predisposition report that recommends a disposition. However, as soon as your child admits charges, the court can issue its disposition, including home placement, fines, and probation. In more severe cases, the court can order commitment of the child to detention at a youth center (jail for juveniles), community placement (minimum security prison for juveniles), or secure detention (prison for juveniles).

Pretrial Proceedings and Trial

If your child denies the charges at arraignment, the court will usually schedule a pretrial conference. At the pretrial conference, your child, parents, and your child’s attorney can discuss a possible plea bargain agreement with the prosecutor. The prosecutor may agree to reduce or dismiss charges, or offer a plea in abeyance or diversion agreement. The plea in abeyance involves an admission of guilt by your child followed by a period of good behavior, payment of fines, or community service (similar to unsupervised probation in adult court). Once the plea in abeyance period is completed, the court will dismiss the case and your child will have no record of an adjudication of guilt. A diversion agreement freezes the case for a period of time, during which your child can be required to refrain from violating the law, pay fines, or perform community service.

If the prosecutor will not agree to an acceptable plea bargain, then the case proceeds to trial. Although the proceedings are similar to those in a criminal trial in adult court, your child is not entitled to a jury. If the court does not find that the prosecutor has proved the charges beyond a reasonable doubt, the court will dismiss the case. If the court finds that the prosecutor has proved the charges beyond a reasonable doubt, then the court can make a disposition immediately upon completion of the trial, or the court can ask a probation officer to make a dispositional recommendation before making a final disposition.

In more serious cases, the child is processed in Utah’s adult criminal justice system.

Trying Children as Adults

Utah’s criminal justice system, which provides for trial of children as adults, is notoriously harsh on children between fourteen and eighteen years of age. In Utah, a child under the age of eighteen does not have the legal status of an adult. A child under eighteen generally cannot enter into a contract, vote, serve in the military, smoke tobacco, drink alcohol, marry, get an abortion, or otherwise act as an adult. Perversely, however, Utah does provide that a child is mature enough to be tried and punished as an adult for some crimes.

The impact of trying a child as an adult has severe consequences. Children transferred to the district court for trial as adults are dealt with more harshly than those tried in juvenile court, and are often permanently branded as criminals.

Utah has taken the position that children charged as adults are to be kept in the county jail with adult inmates while awaiting trial, rather than in a juvenile facility. If the child is convicted and sentenced to prison, the child will experience more physical and sexual assault, and will have negative psychological and social experiences duriing formative years. The child will also be stigmatized once released from custody, and will have difficulty finding a job. Thus, the child will be more of a threat to society than would be the case if the child were kept in the juvenile justice system. Until Utah becomes more enlightened and realistic, however, a parent must turn to a defense attorney to fight for the child’s future.

Under Utah law, there are three procedures for charging children as adults: 1) direct file charges; 2) serious youth offender charges; and 3) certification of the case to district court.

Direct File Charges

If the State of Utah charges children sixteen and older with murder or aggravated murder, or charges a child over sixteen with a felony committed after the child has been in a secure juvenile facility, then the State must file the charge directly in district court and the court tries the child as an adult. The juvenile court has no jurisdiction over such charges.

Serious Youth Offender Act Charges

Under Utah’s notorious Serious Youth Offender Act, a child sixteen to eighteen years of age must go through the serious youth offender process if the child is charged with any of the felonies listed in the Serious Youth Offender Act. Felonies listed in the serious youth offender act include offenses involving dangerous weapons and aggravated felonies such as aggravated robbery and aggravated burglary.

Although a charge under the Serious Youth Offender Act is initiated when the prosecution files an information in juvenile court, the process is geared to transfer the child to the district court to be tried as an adult. After the State files an information, the child makes an initial appearance in juvenile court, and judge reads the charge and, if the child is indigent, appoints an attorney to represent the child. The child does not enter a plea at the initial appearance. The juvenile court then schedules a preliminary hearing, which must be held within ten days of the initial appearance if the child is in custody, or thirty days if the child is not in custody.

The preliminary hearing proceeding is geared toward transferring the child to district court for trial as an adult. At the preliminary hearing, the prosecution is only required to prove that there is “probable cause” that a crime has been committed, and that the child committed the crime. Contrary to popular belief, probable cause at a juvenile preliminary hearing involves a low standard of proof, and the prosecution can use hearsay to show probable cause.

In order to avoid transfer of the case to district court for trial as an adult, the child must then prove, by the stringent standard of “clear and convincing evidence,” that three mitigating circumstances apply: 1) the child has no previous felony offense involving a dangerous weapon; 2) the child is less culpable than any co-defendants; and 3) the child’s role in the offense was not violent, aggressive, or premeditated. A child will rarely be able to prove the third circumstance, because most aggravated offenses are, by nature, violent, aggressive, or premeditated.

Therefore, even thought the child is supposedly presumed innocent, a charge under the Serious Youth Offender Act will likely result in an order by the juvenile court that the child is to be bound over for trial as an adult in the district court.

If the juvenile court decides that the child is to be bound over for trial in the district court as an adult, the juvenile judge issues a warrant of arrest and sets initial bail. The child is then taken to the county jail and the case proceeds as if the child is an adult in the district court.

Certification to the District Court

If a child between the ages of fourteen and eighteen is charged with any offense that would be a felony if committed by an adult, the prosecution can seek to have the child certified to stand trial in district court. The prosecution starts the certification process by filing an information in juvenile court and a motion to certify the case to the district court for trial.

The juvenile court will then hold a hearing within thirty days, where the prosecution is required to prove probable cause that a crime was committed, and that the child committed the crime. If the prosecutor meets that burden he must then prove, by “a preponderance of the evidence,” that it would be contrary to the interests of the child or society for the juvenile court to retain jurisdiction over the case.

Required to apply “objective” standards, the juvenile judge must then make findings regarding specific “objective” statutory factors in deciding whether to retain jurisdiction over the case or to transfer it to district court for an adult trial. As a practical matter, however, the juvenile judge subjectively decides whether the child should be kept in the juvenile justice system, or should instead be certified to the district court. If the case is certified to district court, the case will then proceed through the adult criminal justice system.

Rich King Attorney & Counselor at Law Windsor Building East 335 West 50 North, Suite E19 Vernal, Utah 84078 Phone: [phone] www.uintahbasinlaw.com