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Deferred Prosecution and Sentencing

When faced with criminal charges in Arizona, you will be faced with choosing whether your case will proceed to trial. Alternatively, the court can offer you a plea deal or pre-trial intervention programs. According to the United States Sentencing Commission (USSC), only 2.7% of the defendants received a jury or bench trial in 2012, while 97.3% of the criminal cases were terminated before trial. Many defendants opt for pre-trial interventions like deferred prosecution and sentencing to avoid the uncertainties of trial and strict penalties. At the Phoenix Criminal Attorney, we have highlighted the prosecution deferment in this article to help you understand the program.

Overview of Arizona Prosecution Deferment

As per Arizona statutes, a deferred prosecution is an agreement between you and the court to participate in a diversion program involving rehabilitation as an alternative for proceeding to trial. After you complete the program as per the agreement, the criminal charges against you are dismissed. Nonetheless, when you violate the prosecution deferment conditions, it will be canceled, and the case will continue where it left off. At Phoenix Criminal Attorney, we encourage you not to violate the terms of the diversion program because if the charges resume and proceed to trial, chances are high that you will be convicted. After all, the statements made during pre-trial negotiations can be admitted as evidence in the trial.

Not every defendant in Arizona is eligible for deferred prosecution or sentencing. The prosecuting attorney will consider this option if you are a first-time offender and have been convicted for a lesser offense like drug possession. Usually, this offer comes after the prosecutor has filed a criminal charge or obtained a jury indictment.

Once you receive the offer, you have a difficult decision between accepting the deferred prosecution and proceeding with the regular court procedures, including trial.

After accepting the offer, you are not required to confess to the crime. Instead, the prosecuting team and the court defer or delay the case's prosecution to allow you to undergo counseling and adhere to the diversion program’s requirements. Any statements you make during negotiations at this stage will be used as evidence if you do not adhere to the requirements. The program's conditions are determined by the circumstances of the case and primarily focus on treatment and counseling, just like those of probations. The standard requirements include:

  • Not engaging in any other crime while your prosecution is on delay
  • Undergoing unplanned substance and alcohol screening
  • Completion of alcohol and drug treatment program
  • Undergoing counseling
  • Passing education programs
  • Payment of victim restitution
  • Footing the cost of the postponement, usually $75

The court imposes the education, treatment, and counseling program, meaning you must go for a session in only those programs that have been approved by or meet the court’s standards.

When you are already enrolled in a drug or alcohol school and wish to proceed, your attorney will check with the court to determine if the program you are participating in meets the minimum criteria. 

Typically, the deferred prosecution program runs from three to six months, during which the prosecution of your criminal case is deferred, paused, or suspended.

The county attorney is the individual who holds the discretion to offer this program. It is only when the DA offers the program that you have the option to accept or follow the typical criminal justice system. The local prosecutor’s office has the discretion to evaluate all minor criminal cases and screen for possible prosecution and sentencing deferment. However, even if the prosecutor does not give you the offer, your criminal attorney can help you by filing a request for a deferred prosecution. 

Candidates for Deferred Prosecution

As mentioned earlier, not everyone is eligible for a deferred prosecution. The County Attorney screens and evaluates all the criminal cases to determine those eligible for the program. They will offer the program if:

  • You are a first-time offender, although, with the help of an attorney, you can convince the court to defer your prosecution even with a criminal history.
  • There were no aggravating factors surrounding your case
  • All your previous convictions were non-violent, non-dangerous, not against children, and non-sexual.
  • The quantity of marijuana found in your person was small and for personal use and, therefore, not fulfilling the conditions of possession for sale.
  • You have a substance abuse problem.

Benefits of Deferred Prosecution

If you are an eligible candidate and manage to meet all deferred prosecution requirements, the court will drop or dismiss all your charges. Both you and Arizona will benefit from completing the intervention program. The state can resolve criminal cases faster, reducing the caseload in the criminal justice system and saving costs that could have otherwise been spent on a criminal trial.

On the other hand, you will enjoy many benefits from the program as a defendant. These advantages include:

  • Eliminate criminal prosecution and the uncertainties associated with a case proceeding to trial.
  • Avoiding a criminal sentence on your record
  • Avoiding the rigorous and stressful trial procedure
  • Not having to deal with the consequences of a conviction like possible prison or jail sentence
  • You benefit from the alcohol or drug treatment program and counseling

Failure to Complete Prosecution Deferment

Most defendants offered deferred prosecution and sentencing successfully managed to complete the program. Unfortunately, a few cannot comply with the court requirements, fail to attend classes as required, are charged with new crimes, or test positive during random drug or alcohol testing, resulting in revocation or cancellation of the program.

When you fail to complete this pre-trial intervention program, your supervisor will notify the court because usually, they are the first to discover a breach of the terms has occurred. They notify the prosecution by filing a resumption motion to the criminal prosecution. The court then informs you of the renewal of your criminal charges and arranges a court date within ninety days upon receipt of the motion.

All your progress will be disregarded, and the criminal case will continue from the point it left off. All the statements, including the self-incriminating ones made to have a shot at the program, will be used against you, elevating the chances of a conviction. The two crucial exceptions when the case resumes are:

  • The prosecuting team will not be required to demonstrate probable cause at the initial proceeding because you are likely to have waived your right to this proceeding to gain acceptance in the deferred prosecution program, and
  • Any other confessions you made during the program’s agreement will be admissible as evidence because Rule 410 does not protect your statements during registration for deferred prosecution. However, the statements made during a plea deal are protected by the law and cannot be admissible as evidence in a trial.

Arizona Supreme Court Opinion on Deferred Prosecution

Recently, the Arizona Supreme Court reviewed whether a defendant’s statement during prosecution deferment agreement discussions is admissible as evidence should the prosecution resume. The question stemmed after a defendant took part in the program but failed to complete it.

A defendant was found in possession of marijuana by a security guard in a washroom. After the arrest, the suspect was charged with a class six felony and was offered a plea deal. However, the deal's conditions were unfavorable and were turned down by the defendant. Shortly after the defendant rejected the deal in a pretrial conference, the prosecuting team reduced the charges from a class six felony to a class one misdemeanor, allowing deferred prosecution.

The prosecutor offered the defendant to register for deferred prosecution in exchange for partaking in a drug rehabilitation program. The defendant accepted the offer, and a meeting was scheduled between them and a diversion program supervisor for registration. The registration process involved completing a form stating they understood their Miranda rights.

In the statement of facts section, the defendant signed a contract indicating they were aware any statements made during the program’s discussions could be used as evidence in a trial if they fail to finish the diversion and the prosecution resumes.

Additionally, the defendant stated in the forms that they were found in possession of marijuana on the restroom floor. After completing the registration process, the defendant’s prosecution was paused or deferred after they agreed to commence the drug treatment program.

Sadly, after serving a few months in the program, the defendant failed to attend the required drug treatment seminars and turned out positive for cannabis and alcohol in the random alcohol and drug screening, which was a breach of the court-imposed conditions. The supervising officer discovered the violation and reported the matter to the court, resulting in prosecution resumption.

During the trial, the defendant discovered the statements he made admitting to being found in possession of marijuana had been admitted into the evidence. Therefore, he filed a motion to suppress the statements made during registration because they were protected under the law. Unfortunately, the court rejected the motion, and the case proceeded to a bench trial where the defendant was found guilty. The court sentenced him to twelve months’ probation under deferred sentencing.

The defendant was unhappy with the court’s verdict, so he appealed to an appellate court, arguing that his testimonials were inadmissible. The appellate court ruled that statements are only inadmissible in a plea negotiation that does not end with a plea deal or agreement. In the final verdict, the appeals court ruled that the statements were not made in a plea discussion, and they were made after the defendant precluded a plea deal, hence not protected by Rule 410.

The appeals court affirmed that during the settlement conference, the defendant’s father, attorney, the prosecuting attorney, and the court’s commissioner were present when a deferred prosecution agreement was offered. Only the deferred prosecution program was tabled at the proceeding, and no other option was in the offing.

Also, in the settlement conference, the defendant’s father made an error by assuming that before an agreement was reached, the son had to plead guilty to the charges. However, the court’s commissioner and the prosecuting attorney were quick to correct him by explaining that a defendant is not required to plead guilty in a prosecution deferment. The defendant was given ample time to discuss the case with the father before signing the agreement, including admitting to having been found in possession of marijuana.

The Difference Between a Plea Pact and Deferred Prosecution

So, the Supreme Court affirmed that there was no way the defendant was offered a plea deal. Additionally, it explained the difference between a plea bargain and deferred prosecution. The court stated that the defendant must plead not guilty or no contest in exchange for a charge reduction in a plea bargain.  This is different from a deferred prosecution agreement. The defendant discusses whether they want to join a rehabilitation or counseling program in exchange for a paused prosecution before the case proceeds to trial. Once the program is completed, the charges are dismissed entirely, which differs from a plea discussion where the defendants formally admit to committing a crime. However, the effects of pleading guilty and admitting to the crime are the same.

Also, the court clarified that the appeals court was wrong to rule that Rule 410 was not applicable in the defendant’s case because they initially turned down a plea deal. Instead, Rule 410 does not apply in all deferred prosecution agreements.

Furthermore, the court clarified that a diversion program representative is not a prosecution’s agent for plea discussions. Therefore, the defendants’ assertion that the representative was a state’s agent was incorrect regardless of the county attorney’s name on the registration forms and cannot negotiate a plea agreement.

Lastly, the Supreme Court explained that the Rule 410 waiver only allowed them to understand the rights they were relinquishing and the repercussions. Before signing the agreement, the prosecutor emphasized that when they fail to complete the program, the statement of facts and other paperwork signed will be used against them in trial and that the case will resume where it left off. The court affirmed that the defendant was guilty of marijuana possession with the explanation.

Unique Offenses Eligible for Deferred Prosecution and Sentencing

As mentioned earlier, the county attorney can decide whether to offer a deferred prosecution and sentencing for particular offenses. Nonetheless, most prosecution and sentencing deferments are presented for the following crimes:

  • Possession of dangerous drugs or marijuana, like in the example given above
  • A first offense of prostitution
  • Alcohol possession by a minor
  • Domestic violence
  • Minor or petty theft offenses
  • First DUI offense
  • Substance abuse-related offenses
  • Non-domestic violent offenses like assault
  • Drug paraphernalia possession

The common characteristic of these crimes is that they are typically misdemeanors or low-level felonies devoid of aggravating circumstances.

For instance, you have been charged with drug possession. For the offense to be eligible for prosecution and sentencing deferment, the number of drugs found in your person must not exceed the threshold for possession for sale. 

Legal Advocacy

Not all defendants are qualified for prosecution and sentencing deferment. Therefore, it is critical to partner with Phoenix Criminal Attorney to know if you are eligible for the program. If you are not, the attorney can negotiate with the prosecution to convince them to offer it. Whether it is a matter of plea discussion or prosecution deferment, consulting with our profound attorneys before arraignment is essential to the case. The prosecutor can offer the program during the arraignment hearing, and without legal representation, you can end up with a raw deal. However, when you have an attorney by your side, they will evaluate the conditions of the offer and determine if they are favorable or not. The attorney will reject the offer when the terms are unfavorable until you obtain one with more favorable terms.

Also, although it is the prosecuting team that offers these programs, not all defendants enjoy this opportunity. You can be eligible, but the court fails to offer the program for your charges. All these are possibilities, and to avoid frustrations, you should consult with an experienced criminal attorney to explore all the available options and ensure your rights are protected throughout the criminal process. Besides, the attorney will work tirelessly to ensure you qualify and enjoy the program's benefits.

When a plea agreement is in the offing, your attorney will review the terms to ensure they are constitutional and favorable, depending on your case’s nature.

Find an Experienced Criminal Attorney Near Me

When you are charged with a crime in Arizona, you want to avoid the risks associated with a trial, obtaining a guilty verdict, serving a jail or prison sentence, and having a criminal record. The best way to achieve all these outcomes is through a prosecution and sentencing deferment. Although you have a right to accept the program offer, the law does not make it mandatory for them to make the offer, and not all the accused are eligible. Therefore, you should have an attorney in your corner so that even if you are not eligible, they can help you qualify. At Phoenix Criminal Attorney, we are eager to discuss your case before arraignment and protect your rights. Call us today at 602-551-8092 to discuss your case.

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