A couple of big wins over here this week. In our first case, we were able to secure a dismissal for our client when he was charged with Aggravated Battery pursuant to Kan. Stat. Ann. 21-3414(a)(1)(a). If convicted, our client was looking at about 4 years in prison. Part of the reason we got the case was dismissed was through aggressive questioning of the complaining witness during the preliminary hearing.
A preliminary hearing is a right all persons charged with a felony have. There is no jury, but the State must convince the judge that 1) there is probable cause to believe a felony was committed and 2) there is probable cause to believe the defendant committed the felony. The State does this by calling witnesses and introducing evidence. In short, it is an excellent way to get a preview of the State’s case and test the strength of the witnesses. In this case, the complaining witness admitted, among other things, that she had routinely called the police and lied to them about things the defendant had done when she was mad at the defendant. After an admission like that, no sane prosecutor would try that case.
Some attorneys routinely waive, or give up, their client’s right to a preliminary hearing. This practice is baffling to us. It doesn’t cost the client or the case anything to have the preliminary hearing, you get an early chance to test the State’s case, and oftentimes you learn something you would not have known without the hearing. Experienced criminal attorneys know this, and you almost never see them waive their preliminary hearing. Out of both my and Mr. Folsom’s career, I can only think of a handful of times that a preliminary hearing was waived and they were all because the client was getting an amazing plea deal. On the other hand, we’ve had several cases dismissed because we insisted on a preliminary hearing.
Our second case was that we successfully stopped a misdemeanor theft charge from being elevated to a felony – not once, but twice. During the first preliminary hearing, the client was charged with felony theft for allegedly stealing an amount of $1,000 or more. Kan. Stat. Ann. 21-3701(b)(3). However, the State was not able to prove the value of the items taken at the hearing, so the Court only found misdemeanor theft. Later, the prosecutor again tried to elevate the crime to felony theft based on the client’s prior convictions. Kan. Stat. Ann. 21-3701(b)(6). In response, we argued that 1) the prior convictions were from out of state, and 21-3701(b)(6) says you can only use Kansas theft convictions to elevate the crime to a felony, 2) the out of state theft statutes that the client was convicted of are different from the Kansas theft statutes, and therefore shouldn’t apply anyway, and 3) the documents the State was putting forward do not show that the defendant had counsel at the time of his conviction, and therefore couldn’t be used, pursuant to State of Kansas v. Youngblood, 288 Kan. 659 (Kan. 2009). After hearing our arguments, the court gave the State time to respond in writing. After their response was late, the State essentially gave up. No felony charges for the client.
Both of these cases illustrate a couple important points. 1) Never waive the preliminary hearing unless the client is getting an amazing deal and knowingly waives the hearing to receive that deal. 2) When prior convictions are being used to attempt to elevate a sentence, pay careful, thorough attention to a) the statute at issue and b) the documents being used to establish the conviction. Some statutes allow for the use of out-of-state convictions to elevate the crime, such as Kan. Stat. Ann. 8-1567 (DUI), and some are silent on the subject, such as Kan. Stat. Ann. 21-3701(b)(6) (Theft) and Kan. Stat. Ann. 21-4704(l) (Burglary).
If you’re facing a felony conviction, it’s important to talk to a firm with experience. At Bell Folsom, P.A., all we handle are criminal matters. We have extensive experience in making the legal arguments that can save you from a felony conviction, or any conviction at all. When it’s your life on the line, don’t settle for less. Our phones are answered 24 hours a day, so give us a call and let us start using our experience for you.