According to the Utah Code, Section 77-2a-1: “‘Plea in abeyance’ means an order by a court, upon motion of the prosecution and the defendant, accepting a plea of guilty or of no contest from the defendant but not, at that time, entering judgment of conviction against him nor imposing sentence upon him on condition that he comply with specific conditions as set forth in a plea in abeyance agreement.” In general, a Plea in Abeyance is where you admit guilt and the judge holds your guilty plea and gives you a probationary period to see if you will screw up again.
If you successfully complete the terms of your Plea in Abeyance, your criminal case will be dismissed and you will not have a criminal conviction for that charge. A Plea in Abeyance is usually in writing and signed by the judge, prosecutor, defense counsel and yourself. It sets forth the terms of your probation, any fine, any drug and alcohol treatment or restitution. In Utah Justice Courts, usually Pleas in Abeyance do not require supervised probation, just court probation for 12 months. This is not the clearest definition in the world, but basically it means this: If the prosecution agrees (and you qualify for a plea in abeyance depending on certain factors), you would enter a guilty plea to your charge(s) subject to the plea in abeyance agreement. Typically then, your guilty plea would not be entered against you. So you plead guilty, but that guilty verdict doesn’t take effect. In essence, the court would take your guilty plea and stick it in a drawer for a certain period of time (often a year). During that year, you would be required to comply with certain requirements. Those requirements often include: no new violations of law for that 12-month period (sometimes minor traffic violations are permissible); paying certain fines or fees associated with the plea in abeyance; and other conditions, which may include (depending on your circumstances) various classes or community service. If you do all the things you are required to do during that 12-month period (or however long the court requires), your case would then be dismissed. In other words, the charges would be “dropped.” Your guilty plea would go away, and so would the case against you. It’s important to note that some crimes, and some individuals, are not eligible for a plea in abeyance. DUI charges do not qualify for pleas in abeyance. Likewise, sex offenses involving a victim under 14 years old do not qualify for pleas in abeyance. Finally, the prosecutor in a case must approve of the plea in abeyance. If the prosecutor doesn’t approve, then a plea in abeyance isn’t available. Often, prosecutors don’t approve of pleas in abeyance depending on the nature and severity of the particular charges; whether or not the person has had a plea in abeyance in the past (and if they successfully completed it); the individual’s particular criminal history; or (4) various other factors specific to each case.
Utah Plea in Abeyance Limitations
• The probationary term for a Utah Plea in Abeyance cannot exceed 18 months.
• You cannot take a Plea in Abeyance on a DUI under Utah Code 41-6a-502.
• You cannot take a Plea in Abeyance on a sexual offense concerning a child victim who is under 14 years old.
• Certain CDL offenses taken as a Plea in Abeyance will not have the same effect as regular drivers who take Pleas in Abeyance on traffic matters.
The Utah sentencing criminal court will precisely tell you what the terms of the Plea in Abeyance are. One term which is always present is that you cannot commit any new crimes—Conviction or not. On the court’s own motion or by affidavit and motion from the prosecuting attorney, you will be brought into court to answer why you should not be sanctioned for violating the terms of your Plea in Abeyance. Violating your Plea in Abeyance terms is just like a criminal probation violation with the same rights to an evidentiary hearing. If the court finds you violated your Utah Plea in Abeyance, the original conviction will enter against you and your sentencing terms and time will start all over again, except with the benefits of having the criminal charges reduced or dismissed at the end of your case. The legal test for revoking a Utah Plea in Abeyance is whether you substantially complied with the terms of your probation period. If you have been convicted of a new crime during your probation period, your Plea in Abeyance will almost always be revoked. If you fail to complete treatment or fail to pay your fines, generally, you will be given another chance to comply with the court’s orders. Upon successfully completing your Plea in Abeyance probationary period and your charges are completely dismissed, you may have the opportunity for an expungement, under Utah law. Assuming you qualify for an expungement, you only have to wait 30 days from when your Plea in Abeyance case is dismissed to be eligible for a Utah expungement.
Normally you would have to wait 3 years for a Class C Misdemeanor, 4 years for a Class B Misdemeanor and so forth. Pleas in Abeyance have expedited Utah expungement provisions. There are expedited provisions for a jury not guilty verdict and when your criminal case is dismissed, either by completing the terms of your Utah Plea in Abeyance, or through outright dismissal. Often, statutory sentencing schemes will count prior offenses that were taken as a Plea in Abeyance as if there were convictions for criminal sentencing enhancement purposes.
Examples of statutory sentencing schemes that will consider Pleas in Abeyance as a prior conviction for criminal enhancement purposes:
• Habitual wanton destruction of protected wildlife — Third degree felony.
• Cruelty to animals — Enhanced penalties.
• Sexual battery.
• Qualifying Domestic Violence Convictions.
• Failure to perform duties constitutes malfeasance in office — Felony charges arising from official duties — Paid administrative leave — Reassignment of duties.
• Interlock restricted driver — Penalties for operation without ignition interlock system.
• Alcohol restricted drivers.
• Ineligibility for educator license. Educator Licenses for Pleas in Abeyance to a felony of a sexual nature.
• Restitution criteria. Regardless of whether you take a Plea in Abeyance or a guilty plea, criminal restitution will be assessed. A Plea in Abeyance does not avoid criminal restitution.
• Stalking — Definitions — Injunction — Penalties. Pleas in Abeyance will be treated as convictions under the criminal stalking statute.
• Grounds for disciplinary action. Real estate brokers and agents who use have previously used a Plea in Abeyance in the last five years prior to another sanctionable incident will be used against them in the current disciplinary hearing.
• Utah Controlled Substances Act. 58-37-8. Prohibited acts — Penalties. Pleas in Abeyance are treated as convictions for enhancement purposes.
Misdemeanor Hearings in Utah
• Arraignment: The court will read the defendant the charges and ask how s/he pleads (guilty, not guilty, or no contest). There are advantages and disadvantages to any one of these pleas. Discuss them with your Utah criminal defense attorney to ensure your legal rights are protected. Usually a defendant will plead not guilty in order to have time to retain an attorney or, if representing him/herself, to have time to obtain evidence in preparation for trial. The court will not hold this against a defendant because it realizes that the defendant needs to find out his legal rights and to determine the elements of the crimes he is alleged to have committed, as well as time to see the evidence his/her accusers are using. Defendants enter pleas of not-guilty so frequently that the court almost expects it initially to give the defendant enough time to retain an attorney and understand his/her rights.
• Pretrial Conference: At this stage of the misdemeanor process, the prosecuting and defense attorneys meet to discuss the evidence. The prosecutor will attempt to convince the defendant’s attorney that they have a solid case and that the defendant should plead guilty as charged. In exchange for a guilty plea, the prosecutor often times recommends leniency on jail time, or fines, or both. Sometimes it makes sense to plead guilty in exchange for a no-jail recommendation; however, other times taking a guilty plea is clearly not in the defendant’s best interest, as the prosecutor’s evidence may be so fraught with problems that should the matter proceed to trial, the prosecutor would not be able to have its case survive the rigorous “Beyond a Reasonable Doubt” standard, which is a very high standard to meet, as discussed more fully below. On the other hand, at this conference the defense attorney, if effective, will aggressively and skillfully present evidence to the prosecutor that will persuade her/him to dismiss the case or at least amend the charges downwardly. The attorney may also persuade the prosecutor to recommend no jail or reduced fines. The defense attorney may also propose creative solutions that satisfy the defendant’s objectives as well as meet the prosecutor’s objectives. For example, if a defendant had a job working with small children and was also an avid deer hunter and was recently charged with domestic violence against his wife in the presence of his children, this defendant could face losing his job, and would be prohibited from possessing a rifle so he could not participate in the deer hunt. A skillful defense attorney may offer a resolution such as a plea in abeyance. Under this plea resolution, the defendant pleads guilty to the charge, but the prosecutor agrees to recommend to the court that the plea be held in abeyance for a period of time (usually one year) on the condition that defendant takes a domestic violence class and does an assessment and whatever individual counseling is recommended by the evaluator, which may include couple’s counseling. If the defendant successfully completed the terms of the plea in abeyance, at the end of the twelve month period the defendant would have nothing on his record. He therefore would not lose his job, could continue to possess his rifle, and would not miss out on his deer hunting for the season. The prosecutor is happy because s/he gets a guilty plea which can be entered on the defendant’s record, without a trial, if the defendant violates the terms of the plea in abeyance agreement. The prosecutor also gets the defendant to attend classes so s/he can be hopefully rehabilitated, reducing the chance that the defendant will re-offend. So under this scenario the prosecutor and the defendant are both satisfied with the resolution. During the pre-trial conference the defense attorney will have an opportunity to discuss with the defendant, in private, any possible plea offers the prosecutor has offered to the defendant. The defense attorney should, at that point, inform the defendant of the offer, advise him/her on whether the offer is a reasonable one under the circumstances, and ask the defendant whether s/he would like to accept the offer. If the offer is accepted, the defendant must tell the court that s/he has accepted the offer, and inform the court what the terms of the offer are, must waive his/her rights, as discussed below, and must relay to the court the factual basis for the plea so the court can establish that each of the elements of the crime the defendant is pleading guilty to have been met beyond a reasonable doubt. A defendant’s admission to each of the elements of the alleged crime is usually sufficient to satisfy the “Beyond a Reasonable Doubt” standard. If at the pre-trial conference the defendant has not obtained all the evidence that s/he has subpoenaed or requested from the prosecutor’s office, the matter may be rescheduled to another pre-trial conference. The court is usually flexible in permitting a defendant the opportunity for extensions of time if the defendant can demonstrate that the evidence is necessary and that s/he has been timely in requesting this evidence from the prosecutor’s office or other entities but has not yet received it.
• Trial: If the prosecutor and defense attorneys cannot reach a plea resolution at the pretrial conference and they have all the evidence they have requested from either side, the matter is set for trial. A trial is where evidence is gathered and a fact finder makes a ruling on what evidence seems credible and what evidence is not. A fact finder can either be a judge or a jury. A defendant is entitled to a jury whenever jail time is possible, which would include any misdemeanor or felony matter. At trial, witnesses are called and questioned, documents are submitted in the form of exhibits, and opening and closing arguments help persuade the fact finder what really happened. The judge plays an active role in deciding what evidence is appropriate to be presented to the jury. The judge also instructs the jury to apply the facts to the law in determining whether the defendant is guilty or not guilty of the offense charged.
• Sentencing: If a judge or jury returns a verdict of guilty of any of the charges, or the defendant pleads guilty to any of the charges as a result of a plea bargain, the defendant must face sentencing. Sentencing on more serious misdemeanors and felonies is usually postponed until the defendant can be evaluated by a member of Adult Probation and Parole (AP&P) or other agency authorized to make recommendations to the court as to what punishment would be appropriate for this particular defendant. This recommendation is based on a number of factors, such as the defendant’s criminal history, the underlying offense, whether defendant is amenable to supervised probation, whether defendant has accepted any responsibility for his criminal behavior, whether the defendant minimizes his/her conduct, whether the defendant has a support network of family and/or friends in the area, whether the defendant has stable, verifiable employment, whether the defendant has stable housing in the area, whether there is restitution that needs to be paid thereby justifying keeping defendant employed rather than locked up, and whether the victims are agreeable to probation in lieu of jail/prison time. It is helpful for a defendant facing sentencing to obtain letters of recommendation that show how that person knows the defendant, and in what capacity, and some character traits that are praiseworthy, such as very dependable, has a good attitude, a description of what responsibilities the defendant has had to perform, etc. These letters should be provided to the interviewer at AP&P for a positive influence prior to the recommendation being submitted to the court. A copy is also provided to the defense and prosecuting attorneys. At the sentencing hearing the defense attorney will try to persuade the judge for leniency, while the prosecutor may try to persuade the judge for jail and/or prison time and maximum fines and/or punishment. Typically the defendant is permitted to address the court if s/he desires to, but this is not required. Most courts will permit a defendant to have one person make statements in his/her behalf, but usually this is limited to the defendant’s attorney. It could also be a family member or friend under some circumstances. If the defendant is sentenced to any jail/prison time, the defendant should expect to be incarcerated immediately. This means that she should not have valuables on her person she is concerned will be confiscated indefinitely by the police/sheriff’s department.
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