Client Facing 25 to Life Gets Reduced Charge, Probation

MICHAEL S.

Michael came to me with a pretty serious problem. He had just been charged with lewd proposal to a minor, and that minor was a child under the age of 12. It is so serious that the minimum that you can get is 25 years. The charge carries 25 years as a minimum up to life in prison. As Michael came to me with his story, obviously I was concerned because of the nature of the charge, and as I heard his story became, quite frankly, more concerned.

As we understood from the evidence and what Michael's story was, he had been communicating by text message and text app with a 10-year-old girl that lived out of state that was a daughter of a family friend. The communication that he had with this child was explicit, sexually explicit, definitely not conversation that should occur between an adult and a 10-year-old child.
As we prepared his defense, we had to find a way to either get the case reduced down to a lesser included charge or create such a fear and legitimate concern on the part of the state that they would lose, that they would have to offer us some kind of deal that Michael could not refuse. As we analyzed the case, we found several deficiencies, that although it appeared at face value and that most attorneys would say our client was sunk, there were a number of outs for the client. We held these outs very close to our chest because I knew the prosecutor personally and I knew how she would react if I was to pose our defenses to the state.
I was exceptionally concerned that she would take some type of action before the preliminary hearing to harm our defense, so I kept the defenses under lock and key and continued to flush them out, work them out, and was confident that at the least, we would get a reduction from the lewd proposal to a minor child under 10 to the use of a communication device to transmit sexually oriented material. The charge is still a registrable offense. However, the difference between the two is dramatic in that one only carries a punishment of up to 10 years and is not an 85% crime, where the other one carries a mandatory minimum of 25 to life and is an 85% charge.
On the day of the preliminary hearing, I tell the prosecutor ... After I announce that we're ready to put the preliminary hearing on and we get put in the queue to put it on, I conference with the prosecutor and explain to her, "Here are the problems that you are about to encounter," knowing that there's no option for her at that point to get out of putting on the preliminary hearing. Her response to that and to a very real concern that she could now all of a sudden lose because certain elements that she was afraid she wasn't going to be able to make were absent, got the prosecutor to agree to pleading my client out to a five-year suspended sentence, and no prison time.
According to them, they thought they had him dead to rights, and the minimum's 25 years, so, obviously, she puts forward the five suspended and I knew immediately that it was actually well below the range of punishment that she could even offer, but I jumped on it anyway. We take advantage when somebody fumbles the ball. But we were going to plead him to the lewd proposal to a minor, straight suspended sentence, no time in prison.
We get up to district court arraignment and the time to plea the client, and the prosecutor realizes that they have extended an offer that technically wasn't legal. I knew this. Already had it waiting in the wings, and I was able to convince the prosecution to change the charge to Use of a Communications Device to Transmit Sexually Oriented Material. In doing so, we fundamentally changed the look for our client, and the look being how is probation and parole now going to take a look at this case?
Well, he's looking at lifetime registration as a sex offender, except for the fact that he had moved to another state that had that offense as only a level one registration. So, he was able to not only plea to a lesser offense, but on top of that, he was able to, because he had moved to another jurisdiction that had more favorable treatment, he's now only looking at level one registration, and after 10 years he can apply to be removed from the registry.

That's one happy client.

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