If you have criminal charges, it is likely that you will be faced with the decision of whether or not to take your case to trial. As an alternative to trial, you may be offered a plea deal. In some cases the prosecution can offer participation in a deferred prosecution program if it is available for certain types of criminal charges.
Last year Maricopa County Superior Court reported that of 99.8 percent of terminated criminal cases, only 2.2 percent went to trial.
The United States Sentencing Commission (USSC) reported similar statistics in 2016. The USSC reported 97.3 percent of criminal cases were resolved without trial, while only 2.7 percent went to trial.
A majority of defendants opt for plea deals or deferred prosecution when made available to them, to avoid the uncertainties of trial verdicts, and harsh sentencing.
Prosecutors are encouraged to pursue plea agreements in criminal cases, and offer diversion programs when possible, to reduce court caseloads and to preserve the resources needed to conduct trials.
Defendants must also consider whether or not their statements made for purposes of plea negotiations or deferred sentencing, may be used against them if the charges are later prosecuted.
Recently, the Arizona Supreme Court reviewed a case in which the defendant opted to participate in deferred prosecution, but did not complete it. The Court considered the question of whether statements made by a defendant in connection with his deferred prosecution agreement were admissible.
Arizona Supreme Court Opinion
The case arose when a security guard found the defendant with marijuana in a restroom. The defendant was charged with a class 6 felony for possession or use of marijuana and participated in plea discussions.
The defendant rejected a plea agreement during a comprehensive pretrial conference. Shortly thereafter, his charge was reduced to a class 1 misdemeanor.
The defendant was extended an offer to participation in a drug treatment program, for which he agreed in exchange for deferred prosecution.
After accepting the deferred prosecution agreement, the defendant met with a representative of the diversion program to register. During the meeting which he attended with his attorney, the defendant completed a form that stated he understood his Miranda rights.
On the program’s statement of facts form, the defendant signed an agreement indicating that he understood that his statements could be used against him if he failed to complete the diversion program.
He admitted on the form that the marijuana was found in his possession on the floor.
A few months later, the State resumed the prosecution because the defendant didn’t attend seminars as required. He had also tested positive for marijuana and alcohol, in violation of the program terms.
The defense moved to suppress statements he’d given on the program registration form arguing that since the statements were made as part of plea discussions, they should be protected by Rule 410. The trial court denied the motion.
The defendant was found guilty after a bench trial. He was sentenced to a year of probation with a suspended sentenced.
He appealed the conviction. The court rejected the argument on appeal that his statements were inadmissible. The appeals court held that the defendant did not make admissions to a prosecutor during plea discussions and he had waived protection of Rule 410.
The appellate court held that Rule 410 didn’t apply because (1) discussions about deferred prosecutions weren’t plea discussions; and (2) those statements were given after he had rejected a plea offer.
The Court noted that the defendant had gone to the settlement conference where he’d gotten deferred prosecution with his father, his attorney, a prosecutor, and court commissioner present. No other options besides deferred prosecution were brought up at the hearing.
The defendant’s father had been corrected by the commissioner and prosecutor when he mistakenly said the son would have to plead guilty to participate in the program. The court explained that in deferred prosecution, a guilty plea is not entered. The defendant talked to his father before completing the registration paperwork, which included the form in which he admitted he possessed marijuana.
The Court took note that at no point was the defendant offered a plea deal. It explained that in a plea discussion the prosecution negotiates with the defendant about pleading guilty or no contest in exchange for a concession. In contrast, in a deferred prosecution discussion, they negotiate about whether the defendant will join a special program that results in a deferment or diversion before the guilty plea or a trial. When a defendant completes this program, his charges will be dismissed entirely. In contrast, a guilty plea never results in a dismissal since the defendant formally admits he committed a crime.
The Court held that Rule 410 and Arizona Rule of Criminal Procedure 17.4(f) didn’t apply to discussions about deferred prosecutions. It clarified that the appellate court was incorrect in holding Rule 410 didn’t apply only because he’d rejected a plea deal.
The Court also stated that the representative of the diversion program wasn’t an agent of the prosecutor for purposes of negotiating a plea. The defendant argued the representative was a state agent because the county attorney’s office name appeared on the forms. The Court rejected the idea that this made the diversion program representative a prosecutor’s agent for purposes of plea discussions, noting again he didn’t negotiate a plea.
Finally, the defendant argued his waiver agreement didn’t specify Rule 410. The Court explained a knowing waiver of Rule 410 only required that the defendant know the nature of the rights being abandoned and the consequences. He was specifically told by the prosecutor that if he failed the diversion program, the paperwork for the program could be used against him for trial. He was also told he could go to trial instead of making an admission. The drug conviction was affirmed.
3 Things You Should Know About Deferred Prosecution, Plea Deals & Legal Representation
Below is an overview of their framework, and the importance legal representation in these agreements:
I. Deferred Prosecution – 1) You do not plead guilty. Instead, you agree to participate in a special program when and if, made available to you by the court as an alternative to prosecution of particular types of criminal charges. 2) After successful completion of the program your charges will be dismissed. If you fail to complete the program the state will continue to prosecute the charges. 3) Any statements made in pre-trial discussions or written statements prerequisite to the program can be used against you.
II. Plea Agreement – 1) You must plead guilty. In a plea arrangement you are required to enter a guilty plea in exchange for a leniency in sentencing. 2) After an agreement is reached, the presiding judge will either approve or reject the plea agreement at their discretion. If the parties cannot reach an agreement the case will go to trial. 3) Statements that might otherwise be incriminating that were made to further plea discussions cannot be used against you, if you later decide not to accept the plea agreement.
III. Legal Advocacy – 1) Whether your matter involves a plea agreement or deferred prosecution, you should obtain legal representation as soon as possible. 2) In the least you should consult an attorney before your first court appearance which is usually the arraignment. If the prosecution extends an offer and you do not have an attorney, they often are unwilling to offer more favorable terms if you decide later to hire one. 3) Deferred prosecution is an offer made by the prosecution. However, defendants are sometimes surprised to learn that they do not qualify for the program, or that the court does not offer deferred prosecution for their charges. An experienced criminal defense attorney can help you to explore your options, make sure your rights are protected, and work to help qualify you for the program if it is available. If a plea agreement is involved, your criminal defense attorney will make sure that the plea terms are fair, constitutional, and the most favorable that can be obtained based on the circumstances of your charges.
Criminal Defense Attorney for Deferred Prosecution, Plea Agreement and Trial Mesa AZ
Possession of marijuana outside of the provisions of the Arizona Medical Marijuana Act is still illegal in this state. Those found guilty of marijuana possession, will be exposed to harsh felony sentencing.
The state imposes prison sentencing of ranges from 6 months to 1.5 years for possession of less than 2 pounds for personal use, felony records, fines, fees, assessments, participation in a substance abuse program, and any other penalties the court deems necessary.
For these reasons it is important to consult and retain an experienced criminal defense attorney to represent you in your charges. You will need an attorney with strong litigation and negotiation skills, and one who is familiar with the courts and rules of procedure in the jurisdiction where you were arrested.
James Novak, criminal defense attorney, is a former prosecutor in Maricopa County, with over 20 years of experience in handling criminal cases. He provides a free consultation for clients who face active charges in Mesa, Tempe, Phoenix, Chandler, Gilbert, and Scottsdale Arizona.
If retained, James Novak of the Law Office of James Novak will evaluate your case, the evidence, and all circumstances surrounding the incident. He will work with you closely to determine the best defense strategy and work to maximum your freedom and work vigorously to obtain the most favorable resolution for your charges.
Contact or call Attorney, James Novak at (480) 413-1499 for your free initial consultation. He will speak with you directly and in strict confidence to discuss your criminal matter, and defense options.
- TASC Solutions Mesa AZ
- Arizona TASC Program | Deferred Prosecution
- Fifth Amendment of the U.S. Constitution
- Sixth Amendment of the U.S. Constitution
- Miranda Rights | Miranda v. Arizona
- Arizona Criminal Sentencing Chart 2016/2017
- Arizona Rules of Criminal Procedure 410 (a) (4) | Plea Discussions
- Arizona Rules of Criminal Procedure 17.4 (a) | Plea Negotiations and Agreements
- Arizona Rules of Criminal Procedure 38.3 | Dismissal of Prosecution
- R.S. 13 – 4423 | Plea Discussions
- Statewide Superior Court Trial Statistics
- Arizona Court Annual Statistics
- A. R.S. 13 – 3405 | Arizona Marijuana Possession Laws
- A. R.S. 11 – 361 | Special Supervised Diversion Program
- Arizona Department of Corrections | Counseling and Treatment Services
- United States Sentencing Commission | Sentencing Statistics
Other Articles of Interest from our Award Winning Blog: