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Risking a mandatory minimum jail sentence on a predicate offense? Your fight has just begun

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Why do police routinely ask arrestees if they have any prior convictions? It is not only to provide bail-related information, but also to inform prosecutors about prior convictions that can be used by them in cross examining defendants and in making sentencing arguments in the event of a conviction. Police and prosecutors are not automatically able to obtain a defendants’ complete and accurate criminal record –including if the defendant has used aliases in past cases or has an all-too-common name — and look at what arrestees say about their criminal records.

As I always say, it is best to avoid speaking with police without a lawyer present, other than to provide one’s name in jurisdictions with laws criminalizing not providing one’s name when asked when police have reasonable articulable suspicion to believe the suspect has committed a crime. After arrest, it is dangerous to provide information to police beyond basic booking information relevant to initial bond determinations by a judicial officer, including the arrestee’s address, residential history, and work history. Providing information about prior arrests and convictions opens a Pandora’s box that can even include inaccuracies by the arrestee.

Too many lawmakers are too fond of creating mandatory minimum jail penalties for those with certain prior convictions. Three strikes laws are among the most well known of such laws.

Merely because one is charged as a repeat offender risking mandatory minimum jail time does not diminish how important it is for criminal defendants to fight back, including:

– As always, prepare the case to win. This is war.

– Determine what type of proof the prosecutor needs to prove a predicate conviction, including proper documentation certified by the court where the prior conviction took place. If the conviction is from another state, will the prosecutor timely obtain the necessary documentation to prove the prior conviction?

– Has the prosecutor timely filed the properly-worded notification putting the defendant on notice that s/he faces mandatory minimum sentencing? For settlement negotiations, explore withdrawing any such notices and any other factors that will risk mandatory minimum sentencing.

– Can the prosecutor prove that a prior conviction is the defendant’s conviction, particularly when the defendant has a very common name (e.g., Joe Smith) that is shared by many criminal defendants?

– Even if the prosecutor has all the necessary documentation to prove the defendant’s prior convictions, do the prior convictions qualify the defendant for mandatory minimum sentencing? Review the applicable mandatory minimum sentencing statutes with a fine tooth comb.

– Prepare a timeline of the defendant’s alleged offense and conviction dates for the predicate cases and current case. Determine whether mandatory minimum sentencing for the current case mandates a conviction on the predicate offense prior to the date of the instant offense, or at least requires that the predicate offense be committed before commission of the instant offense.

– If the predicate convictions are from another state, are the out-of-state convictions from states that are sufficiently similar to the criminal laws risking mandatory minimum sentencing in the state of the present prosecution?

In the latter regard, this week Virginia’s intermediate appellate court ordered a retrial of Wendell Kirk Dean, due to the trial court’s incorrectly admitting into evidence Mr. Dean’s prior robbery convictions in Maryland, saying that his Maryland robbery offenses “were not substantially similar for purposes of [Virginia] Code § 19.2-297.1,” which governs Virginia mandatory minimum sentencing after prior convictions for such crimes as robberies. Dean v. Virginia. ___ Va. App. ___ (Dec. 4, 2012).