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Am I going to jail for my Larceny charge?

Mar 10

Posted by GenoLawBlog in Criminal Law | No Comments

What will I get in this case? Jail? Help, I’m nervous.

Question: I got arrested on a Petty Larceny, 1st offense charge and I’ve never been caught shoplifting before. I was there with my friend when he stole stuff at a store. On the charge paper it lists that I stole $0 worth of value. What can I do in this case to lower the penalty. By any chance do I have to go to jail or pay a fine in this case?
P.S. I’m 20 years old, and still in high school- my senior year. But my friend is 16. Also, I’m not a citizen but a Permanent Resident.

Answer: If a person is convicted for Petty Larceny, they typically get no jail time and some counties offer a deferred disposition program that results in a dismissal after doing certain things. In your case, you should fight the charge. If you did not steal anything or help in that process, you should not be convicted. As a permanent resident, a conviction has special considerations because it could affect your immigration status. So, get a lawyer and let him go to work for you. I can’t help but notice that you sound like you think you are going to lose the case. Keep your head up my friend. There is a lot you can do to help yourself. Good luck with this.

Brian Geno
Geno Law Firm
Red Maple Court Office Condominiums
10617 Jones Street, Suite 201-B
Fairfax, VA 22030
703-691-GENO (4366) Office
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I took a guilty plea, so can I petition for writ of habeas corpus?

Mar 9

Posted by GenoLawBlog in Constitutional Law, Criminal Law, Immigration Law | No Comments

A blog reader (who will remain anonymous) posted this question asking for advice.  So, here is the question and answer.  Feel free to comment or ask your own question in email at info@GenoLaw.com or to as a comment to this blog at www.GenoLawBlog.com.  Here’s what happened.

Question: I was arrested on December 1, 08 in Spotsylvania,Va. The police didn’t have an arrest warrant and they didn’t read me my rights. I later found while being held in custody that someone they arrested said I was involved with drug trafficking. Police never found any drugs or any evidence of such. While under arrest, the police asked me about different people; some I knew and some I didn’t.  Apparently, those people were providing information about me, saying I was taking money from different sources. The police also said they had me on tape making a deal (not true because the tape turned out to be only a detective on tape speaking without anyone in response). My court appointed lawyer said initially we had a good case and should go to trial.  In the second day of trial, he advised me to take a plea. I took a guilty plea so; so, can I petition for writ of habeas corpus?

Answer:  This is a question that requires more facts before I could really help you but here is a little information on the writ of habeas corpus. The writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91 (1969). It is typically filed by a person serving a jail sentence and that sentence was entered by use of an erroneous ruling by the court. So here is the question. What error did the court make when entering your sentence? Also, are you in jail?

Most recently, the writ has been used by people who are being removed (deported) by immigration authorities because their rights were incorrectly relayed to them when they entered a plea. See Padilla v. Kentucky, 129 S. Ct. 1317 – Supreme Court 2009. Sounds like your lawyer was working on the case and I am not sure why you plead, knowing you did not do the act. Since I can’t give an answer without knowing the Court’s error, I can offer another unsolicited piece of advice.  It sounds like you might benefit from it.  When police question you, you have the right to remain silent.  If your age has  digits in it, police who ask you questions are not your friend.  See my blog post on the subject at “The Fifth Amendment is Alive and Well, So Why Did You Say That?”

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Without Prayer in Schools, We Haven’t Got a Prayer!

Mar 2

Posted by GenoLawBlog in Uncategorized | 4 Comments

If a line is drawn in the sand, and you cross it; be prepared to find out why that line was there.

In the U.S. for nearly 200 years, it was presumed that God was allowed into government at all levels. He was permitted because it was considered a necessary component for the success and prosperity of our nation.  As one example, John Adams, Signer of the Declaration of Independence and Second President of the United States said “[I]t is religion and morality alone which can establish the principles upon which freedom can securely stand. The only foundation of a free constitution is pure virtue.”

Regarding education, God’s inclusion was considered essential because it was the method by which national survival training was maintained.  In this instance, that line was the exclusion/inclusion of God, by the act of prayer in schools. God’s guidance made our system work.

However, in 1962 the U.S. Supreme Court ruled in Engel v. Vitale that the U.S. Constitution forbid prayer in public schools. The following year, in  Abington Township School District v. Schempp, the Court again ruled that prayer had no place in public schools.  In both cases, the Court cited the first amendment establishment clause.  Since then, it has been widely promoted that God has no place in the schools. I can’t help notice the timing though.

Teenage pregnancy – From 1961 to 2000 children born out of wedlock to teens rose from 16% to 79%.  From 1950 to 1961, the rate rose from 13% to 16%.  By 1970 that rate was 29%.  By 1980, that rate rose to 49%.

Divorce Rate – According to “The Evolution of Divorce” by Brad Wilcox in National Affairs   From 1960 to 1980 divorce rates doubled. That rate remained relatively constant so that in 1960 the rate of marriages ending in divorce were only 11%.  Today, the divorce rate for first marriages is at approximately 50%.

Violent Crime – According to statistics from the DisasterCenter.com, the incidents of violent crime increased from 1.887% (meaning that 1.887% of people suffered a violent crime in that year) to 5.95% (which is more than a 300% increase in violent crime).

From my perspective, when our country crossed that line and told God he was not welcome in our schools, we crossed the line.  Since then, we haven’t had a prayer.

Unreasonable Searches: Police Can’t Search Anything, Everywhere, Anytime!

Feb 24

Posted by GenoLawBlog in Constitutional Law, Criminal Law | 1 Comment

Without a Warrant, the search is may be unreasonable.Police Can’t Search Everywhere, Anytime for Any Reason: Arizona v. Gant stops certain unreasonable search after Arrest.

Recently a student wanted law office experience and asked if he could come by, work for me at the Geno Law Firm, P.C. and become an intern.  Free help . . . that’s good, right? Actually IT WAS GREAT but not just because of the joy of teaching, the extra things that got done or the camaraderie.  I told him when he came to be prepared to answer questions about a case I wanted to study, Arizona v. Gant,  a 2009 U.S. Supreme Court case about Search and Seizure.  He came as planned and off we went to court.  Within the first hour, we were sitting in the court clerk’s office waiting to file papers.  Another attorney (some might call him difficult) came and sat there with us. For the record, that attorney in the past had made lots of trouble for me, so coincidentally when he asked us a question about his case involving search and seizure law, I saw my moment for a little revenge. That lawyer’s client got out of his car voluntarily but then was made to do field sobriety tests related to a DWI.  Later, after being arrested, when his car was searched as part of a DWI arrest, the officer found drugs in the trunk.  I asked my student to give the answer and he didn’t disappoint.  He gave the name of the case, the holding and correctly told how it would apply in that scenario.  The lawyer was impressed.  When he asked if my intern was in law school, my intern said “No, I am a high school sophomore.” Now that was a real lawyer joke.

The Supreme Court has repeatedly said that the fourth amendment prohibits any search done without first obtaining a warrant. There are exceptions, one being a search done at the time or shortly after an arrest.  That is often called a search incident to an arrest. In Arizona v. Gant, the Defendant got out of his car voluntarily after a stop for his suspended license.  He was put in handcuffs and put in the back of a locked police cruiser.  Then the police searched his trunk and found drugs and a weapon.  The Court said that the “search incident to arrest” exception did not apply because The police were not searching for anything in particular and Mr. Gant had no way to get to the trunk from the back of the cruiser.  How could the police possibly be endangered by the trunk’s contents.  Also, why should the police be allowed to go on a fishing expedition when they had no reasonable reason to think there was a problem in that trunk.

The long and short therefore is that if you are arrested, the police can’t necessarily search everything trying to find what else you might have done wrong.  So, if the police didn’t have a warrant nor a reason to search, it would be an illegal and unreasonable search.  Don’t give away your rights by consenting, saying the police can do a voluntary search. The constitutional protection can be lost, and that’s no joke.

U.S. Citizenship, What is the Quickest Way to Get It Done?

Feb 22

Posted by GenoLawBlog in Immigration Law | 1 Comment

Oath of CitizenshipPeople often call, asking how they can get their U.S. Citizenship.  In my law office at Geno Law Firm, P.C. There are some specifics but generally I tell them that we’ll need to file a federal N-400 application after being a permanent residents for 5 years while living in the U.S.  more than 1/2 of that time .  They should be able to speak English and pass a social studies test (history and civics).  They should also have a criminal record free of any “aggravated felonies” or “crimes of moral turpitude” (Often called a CMT). If they are married to an American Citizen, they can qualify in 3 years, not 5. Usually, a person will have to take a Citizenship Test to complete the process.

I have jokingly said before that if a person is willing to take a bullet for the president, then they could likely get permission from a grateful country to jump straight to the head of the line (without waiting at all).  Of course, the smile on the client’s face says it all (not gonna happen, right!).

Well, no more joking.  I recently received word that 98 soldiers, sailors and Marines at Kandahar Airfield in Afghanistan were “signed in” during a ceremony on Jan. 29,2011.  Congratulations!  In my view, much of the application process is designed to ensure that only those likely to be loyal people with American interests at heart are selected.  Military service, certainly does all of that. Four of the recipients are decorated with the Purple Heart.  Many of them had served multiple deployments.  Wow!

I am proud that those serving during war time are offered Citizenship without even becoming permanent residents.  I also think those people are our best and most courageous patriots, and deserve this small reward.

If a veteran of a foreign war up to 9/11 wants Citizenship, there is no waiting and no need to even be a permanent resident.  If the person served after 9/11 and was in the military for 1 year (and not out for over 6 months) or is still serving, the requirement is that he/she must be a resident on the date of the Citizenship Interview. Sure there are some other options too.

What else comes along with Citizenship? A person can 1) vote in Federal Elections, 2) hold elected office, 3) obtain certain federal jobs, 4) sponsor relatives and family members so they can immigrate to the United States, 5) U.S. citizens can live and work permanently in the United States, and cannot be deported or be denied entry into the United States. 6) Citizens have the right to get a U.S. passport, which is advantageous when traveling abroad, 7)  U.S. citizens are also eligible to receive services and assistance from U.S. Embassies and Consulates.

For more information on those 98, see my link.  Form more information about becoming a U.S. Citizen, come in for valuable and often free information to my office.  We have helped many, many people get their Citizenship. The web information we’ve posted can be found at this link.

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Dear Abby, what if I make the mistake of getting A DRUG CONVICTION? What about College?

Feb 18

Posted by GenoLawBlog in Criminal Law | No Comments

I take questions from the public and try to provide helpful information, just like Dear Abby.  Here is one.

I was Charged with first offense of possession on marijuana: I’m 19 with a clean record.  I was in my car with a friend when a cop pulled up behind us. We had smoked weed earlier in the day but the smell was still in the car because the windows were up. The only thing the cop found was a bowl, with some remains. I’m questioning what this will do for my future. I am a college student with the hopes of transferring. Do schools do background checks on students? Will this hamper me getting into other schools? What about if I decide I want to join the military, will this stop me?

Brian Geno, Geno Law Firm Answered 01/13/2011: A conviction for Possession of Marijuana is like any other substance abuse offense. It doesn’t help. If an employer (including the military) wants to hire you vs. someone without a PM conviction, guess what they will be thinking? Many companies and the government do background checks to see the sort of person they are getting. So take this case seriously. Now about your particular case, I think you have to get a lawyer so that he can evaluate all the facts. Additionally, what you mentioned makes me think of several defenses you might use. Don’t just assume you are going to be found guilty. We fight these and often win, especially in light of recent law in Virginia. If you chose to take a plea, or go into a diversion program without considering the fight, then I guess you deserve what you get. Good luck with this.

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So, is it true? Will they take it to the Max?

Feb 18

Posted by GenoLawBlog in Criminal Law | No Comments

I often take questions from the public and try to offer helpful advice.  Here’s an example from January 6, 2011.

A kid said I robbed him of $100 and his cell, then specifically mentioned my name. How much time will I possibly get if found guilty?

Brian’s answer: There are many factors involved in calculating the likely jail time from conviction of these 3 charges. Typically a person would consult the Virginia sentencing guidelines. The max for the charges has very little to do with what you might ultimately get if convicted. I would suggest contacting a criminal defense lawyer for help on defense of the charges and questions about the likely sentence. But since you asked, here are the maximums for each. 1. Robbery – Virginia Code 18.2-58 carries 5 yrs to life 2. Conspiracy to Commit Robbery – Virginia Code 18.2-22 (a)(2) is a class 5 felony with a term of imprisonment of not less than one year nor more than 10 years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both. 3. Assault by Mob – Virginia Code 18.2-42 has a possible 1 year (6 months when calculating the time as a misdemeanor). They could all run consecutive or concurrent, if the judge wanted to do it. Good Luck with this.

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The 5th Amendment is Alive, so Why Did You Say That?

Feb 18

Posted by GenoLawBlog in Uncategorized | 3 Comments

The 5th Amendment is Alive, so Why Did You Say That?

As you know, I’m a criminal defense lawyer.  I tell clients all the time that they should not talk to police. It’s a 5th Amendment Right from the U.S. Constitution. This is what is says:

No person shall . . .  be compelled in any criminal case to be a witness against himself . . . without due process of law . . .

This is how it would work.  If the police (or any other law enforcement person from the local, state or federal government) make a criminal, traffic, domestic or other type of stop, you should politely say that they do not consent to be searched and do not agree that your personal property or home be searched. THEN, STOP TALKING! The police typically attempt to make a person give up that right by using a trick, lie or fear.  But, you should not knuckle under.

I recall one time giving that advice to a client charged with DWI.  A couple months later, when he came back with another DWI charge, he told me how he had admitted to police that he had been drinking (but not driving).  I asked why he had spoken to police and he said “you meant that for this situation?” In that case, the police were able to prove he drove but not that he drank, except for the admission. They were able to prove the driving in another way so guess where the admission came in; to help prove the drinking.  Well, I continue to give that advice to my clients.  If they know what to do, it’s HUGE.  If not; well, I still get paid but the result is tougher on them.  So, to offer this advice in a more memorable way, I’ve included this video; a lecture from James Duane, a law school professor at my alma mater, Regent University Law School.  Enjoy!

Don’t Talk to Police This is a link to a video!