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Beware exhalting over a PBJ, SIS, nolo or Alford disposition

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A colorful and late Maryland District Court judge once told about a criminal defendant, too poor to pay his bond, who eagerly said to the judge "I plead guilty" the day after his arrest, hoping to get released from jail. The judge urged him: "Hold on. Don’t you first want to be told what you are charged with and the possible sentencing range? What if you learned you were charged with murder?" Answer: "Could I still get a PBJ?"

A Maryland probation before judgment involves a criminal defendant being found guilty, but the judge’s then entering a sentence without entering a guilty verdict. So long as the defendant never has the probation before judgment converted to a guilty disposition, from a probation violation, the defendant may always say s/he was not convicted in the case. Generally, but not in drunk driving cases, three years after the PBJ probation period ends, the defendant may pay $30 to file a request to expunge the PBJ case from his or her public record.

The above-discussed judge once told me he was one of the state’s pioneers in routinely granting probations before judgment (PBJ’s) to those found guilty of misdemeanors who had no prior convictions. he considered himself so favorable sentencing-wise to defendants that he once proclaimed that it is professional negligence for a criminal defense lawyer to advise his or her client to pray a jury trial away from this judge. Unfortunately, this judge was one of the more difficult judges to convince putting "not" before guilty — although I sometimes got such a result from him — perhaps thinking that he was not going to hurt most defendants much if he found them guilty. Ouch! The guilty finding alone is a permanent scarlet letter.

Repeatedly, criminal defendants — rightfully — hem and haw about what a guilty finding (other than for a non-jailable moving violation) will do to their futures, to their probation and parole (if they were on probation or parole at the time of their allegedly new crime), and on such collateral matters as employment, education, security clearances, and immigration status. If the chances of acquittal seem slim, the defendant can try to somewhat blunt the outcome by seeking a PBJ on a guilty finding in Maryland, a suspended imposition of sentence (where the case is dismissed after success on probation) on certain guilty findings in Virginia, a disposition under 18 U.S.C. Sect. 3607 in federal court (similar to a Virginia S.I.S., for drug possession), a deferred sentencing agreement on certain misdemeanors in the D.C. Superior Court (similar to, but better than, a Virginia S.I.S., adding a withdrawal of the guilty plea upon successful completion of the conditions for a dismissal, and never imposing probation), a nolo contendere/no contest plea (where the defendant does not admit guilt but agrees to be sentenced as if found guilty), and an Alford plea (similar to a nolo contendere plea).

I warn my clients that all of the foregoing dispositions might end up being treated as straight out convictions in many contexts, and certainly with nolo and Alford pleas. This point was driven home yesterday, when the Fourth Circuit affirmed the trial court’s treatment of a PBJ as a conviction for purposes of applying a sentencing enhancement in the calculation of a criminal defendant’s federal sentencing guidelines. U.S. v. Medina, ___ F.3d __ (4th Cir., June 10, 2013).

Once defendants recognize that the foregoing alternative dispositions are not always much better than a straight out guilty plea and/or guilty verdict, they will think twice before rushing to plead guilty Certainly, Maryland PBJ’s, Virginia SIS’s and federal section 3607’s are available even where a defendant is found guilty after a trial, whether or not some judges will be more reluctant to give a PBJ or SIS or 3607 after a trial, where the defendant has not accepted responsibility from the get-go with a guilty plea.

Beware the landmines in the criminal law and criminal courthouses. Many of them even are camouflaged