Felony CDS Defendant Ineligible for Probation Before Judgment

As an Experienced Baltimore Maryland Criminal Defense Attorney I have often written about the mistakes that are made by inexperienced attorneys when representing people in criminal cases. I often pose the question, “did you hire the right lawyer to represent you?”. In many of my previous postings I have written about cases in which the criminal defendant has hired an attorney who was in reality a domestic (divorce/child custody) attorney, an accident attorney or a general practitioner, who had claimed to be experienced in criminal defense. Upon closer inspection of his or her case history, these claims turned out to be false.

Recently I have become aware of several instances of poor representation in cases where the criminal defendant hires an attorney who sends him an unsolicited letter shortly after they are charged in a criminal case. These “letter lawyers” as they are known, very often offer legal services at well below the customary fee charged by experienced criminal lawyers. The reason for this in most instances is that the attorneys sending these letters are inexperienced (many are just out of law school) and are unable to attract criminal clients any other way. Truly experienced criminal defense attorneys are able to get most of their clients from referrals from past satisfied clients or from people who do the necessary research to find a qualified lawyer to represent them. And as the old adage goes, “you get what you pay for”, as very often these inexperienced attorneys do what one would expect from an inexperienced attorney and that is, they make mistakes.

I have written in this blog about many instances where the mistakes made by “letter lawyers” or other inexperienced lawyers are immediately apparent – usually because the defendant ended up in jail on a case where he wouldn’t have had he been properly represented by a criminal defense specialist. In other cases the mistake may not become apparent for many months or even many years after the case is mishandled. I was recently hired by a client who falls into this latter category. Here are the facts:

The defendant is charged CDS Possession and Possession with the Intent To Distribute CDS. Briefly, the defendant was stopped in his car by a police officer for a traffic violation. The officer claimed that he smelled marijuana and as a result conducted a search of the vehicle. He recovered several ounces of marijuana and a few prescription narcotics for which my client did not have a prescription. There are definitely potential defenses regarding the stop, the search as well as the ownership of the contraband as there were others in the vehicle with him. I explained all this to the client and told him that additionally he would likely be eligible for probation before judgment even if we lost the case given the fact that my client claimed to have no record along with the relatively small amount of drugs recovered in the case.

When we discussed my fee the client claimed to be surprised at the fee I quoted which was, in all honestly, on the low end of the customary fee range for a case like this. He advised me, for the first time, that he had in fact been arrested once before for drugs. He explained that he didn’t think it mattered because his lawyer, whom he had hired after receiving an unsolicited letter in the mail from him shortly after the client’s arrest, “had gotten it all thrown out”. He told me that he had paid far less than I had quoted to be represented and he didn’t understand why he should pay more for a lawyer than he did in the last case when that lawyer had done such a “great job” .

I then looked him the client up in Mary and Judiciary Case Search http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp, which as I have written in the past, is also a an excellent tool for researching attorney’s experience. I found that he had in fact received probation before judgment for possession of CDS a little less than 4 years ago.
I explained to him at this point that this previous arrest mattered very much indeed as under Maryland Law, a criminal defendant is ineligible to receive probation before judgment for a CDS case if that person has previously received probation before judgment in a CDS case. In other words, a defendant is only allowed to receive one PBJ in Maryland for drug case. I went on to advise him that he had been eligible to have the matter expunged for almost a year and that had he done so, he would have again been eligible for a PBJ in this case. I had to explain to him that, unfortunately, now that he has a pending criminal case, he is ineligible under the statute to have the previous case expunged.

I then inquired as to whether his previous lawyer had explained any of this to him at the time of his representation of him or if the lawyer had later reminded him of when he was eligible to have the matter expunged. His response was no. In fact, he told me that his lawyer had never mentioned the word expungement to him and he had no idea that he had to apply to get the matter off his record. He said that the lawyer had simply told him that the case was “thrown out”, was off his record and could never be used against him in the future. This was a major mistake by his former attorney as he may now end up having a drug conviction, possibly even a felony drug conviction, on his record for the rest of his life.

The worst part is that this devastating result was entirely avoidable had his previous lawyer properly represented him. I will do everything in my power to avoid a permanent conviction but the mistake may be impossible to undue. I don’t know whether it was that the lawyer didn’t understand the process or that he just wasn’t paid enough to do the necessary work or some other factor. What I do know is that it is now very clear to this client that his previously lawyer had not done a “great job” and that the client had unfortunately gotten exactly what he had paid for.

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