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Brandishing
- Thread starter rev.david
- Start date
The Wolfhound
Regular Member
Since everyone else forgot their manners....
Hey 8404'Doc', Welcome to the active side of the forum. Be sure to join VCDL if you haven't. Good on ya for getting involved.
Hey 8404'Doc', Welcome to the active side of the forum. Be sure to join VCDL if you haven't. Good on ya for getting involved.
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TFred
Regular Member
Unable to make it today, please let us know how it goes.
TFred
TFred
FLASH!!
Preliminary report out of Manassas - very confusing situation. My informant said it looked like the brandishing charge was headed for a Not Guilty verdict when the Commonwealth asked that the proceeding be "stopped" because of "new evidence just received".
The "new evidence just received" by the Commonwealth Attorney caused the whole case to take a strange turn in the middle of testimony. The CA reportedly "just received" information about the defendant's criminal history that bears on the application for his CHP. See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.09 for reasons for disqualification from obtaining a CHP. It seems the issue is either #7, #9, #14, #15, or #16 - the info given to me was a bit confusing but seems to indicate there was a prior conviction that was not claimed - see http://www.vsp.state.va.us/download...for_Concealed_Handgun_Permit_Rev_7-1-2013.pdf for the CHP application form where those issues are to be reported.
As I understand things, the brandishing charge was withdrawn under a plea agreement in which the defendant plead to some other charge with the promise that the Commonwealth promised not to pursue a felony charge, loss of the CHP and forfiet of the handgun, a fine (+ court costs, of course), and a [relatively] short jail sentence which was suspened on condition of good behavior for 2 years.
My question is how, if there were disqualifying prior convictiuons, the background check did not pick the up so that the CHP application could be denied.
My other question is how the question of disqualification for a CHP enters into the case at all, as I understood that the defendant was OCing at the time of the incident. I admit this is a bit fuzzy as to accuracy. And even if the defendant was CCing with a defective CHP that should have been a separate issue and a seperate charge.
The whole thing smells fishy to me.
However, the defendant accepted the plea agreement. All I/we can do is speculate on what might have happened to the brandishing charge if the question of a defetive cHP had been addressed at some later date.
Paging Mr. White Rabbit and Alice. Mr. White Rabbit and Alice to the courtesy phone, please. Curiouser and curiouser.
stay safe.
Preliminary report out of Manassas - very confusing situation. My informant said it looked like the brandishing charge was headed for a Not Guilty verdict when the Commonwealth asked that the proceeding be "stopped" because of "new evidence just received".
The "new evidence just received" by the Commonwealth Attorney caused the whole case to take a strange turn in the middle of testimony. The CA reportedly "just received" information about the defendant's criminal history that bears on the application for his CHP. See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.09 for reasons for disqualification from obtaining a CHP. It seems the issue is either #7, #9, #14, #15, or #16 - the info given to me was a bit confusing but seems to indicate there was a prior conviction that was not claimed - see http://www.vsp.state.va.us/download...for_Concealed_Handgun_Permit_Rev_7-1-2013.pdf for the CHP application form where those issues are to be reported.
As I understand things, the brandishing charge was withdrawn under a plea agreement in which the defendant plead to some other charge with the promise that the Commonwealth promised not to pursue a felony charge, loss of the CHP and forfiet of the handgun, a fine (+ court costs, of course), and a [relatively] short jail sentence which was suspened on condition of good behavior for 2 years.
My question is how, if there were disqualifying prior convictiuons, the background check did not pick the up so that the CHP application could be denied.
My other question is how the question of disqualification for a CHP enters into the case at all, as I understood that the defendant was OCing at the time of the incident. I admit this is a bit fuzzy as to accuracy. And even if the defendant was CCing with a defective CHP that should have been a separate issue and a seperate charge.
The whole thing smells fishy to me.
However, the defendant accepted the plea agreement. All I/we can do is speculate on what might have happened to the brandishing charge if the question of a defetive cHP had been addressed at some later date.
Paging Mr. White Rabbit and Alice. Mr. White Rabbit and Alice to the courtesy phone, please. Curiouser and curiouser.
stay safe.
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I want to add this as something separate from the brandishing case itself
What was reported in my post immediately preceeding is a demonstration of the unbridled power the Commonwealth Attorney wields.
Stipulating, as the attorneys say, that the "new evidence" was in fact accurate the Commonwealth has used the opportunity to bring a felony charge of an unrelated crime to (reportedly) protect his win/loss record and get the defendant to agree to what was offered as opposed to taking his chance in defending against a felony charge. That would mean more time. more money, and more risk that the defendant may not have had to put up against the Commonwealth.
I do not yet know what the prior convictions were for, or when sentence was handed down, so cannot even begin to discuss how close to the exclusionary time it may have been when the defendant applied for his CHP. Nor do I know how or why the PWC Police Dept. missed those prior convictions when conducting the background check. But most of all I do not know or understand how that information could have been "just received" by the Commonwealth Attorney if they had done even the minimal due diligance by running the defendant's criminal record after PWCPD ran his criminal record at the time of arrest.
And remember, this trial was an appeal of a previous bench trial in the General District Court - where the Commonwealth Attorney should have had this information.
In order to be fair, I am also of the opinion that the defense fell down on the job if they had not also run the defendant's criminal history. I'm not saying they did not - only that if they had not it was just as bad as the Commonwealth not doing so.
What I am thinking is that the Commonwealth had the information all along and pulled it out to prevent a possibly embarassing loss. And that sux!
stay safe.
What was reported in my post immediately preceeding is a demonstration of the unbridled power the Commonwealth Attorney wields.
Stipulating, as the attorneys say, that the "new evidence" was in fact accurate the Commonwealth has used the opportunity to bring a felony charge of an unrelated crime to (reportedly) protect his win/loss record and get the defendant to agree to what was offered as opposed to taking his chance in defending against a felony charge. That would mean more time. more money, and more risk that the defendant may not have had to put up against the Commonwealth.
I do not yet know what the prior convictions were for, or when sentence was handed down, so cannot even begin to discuss how close to the exclusionary time it may have been when the defendant applied for his CHP. Nor do I know how or why the PWC Police Dept. missed those prior convictions when conducting the background check. But most of all I do not know or understand how that information could have been "just received" by the Commonwealth Attorney if they had done even the minimal due diligance by running the defendant's criminal record after PWCPD ran his criminal record at the time of arrest.
And remember, this trial was an appeal of a previous bench trial in the General District Court - where the Commonwealth Attorney should have had this information.
In order to be fair, I am also of the opinion that the defense fell down on the job if they had not also run the defendant's criminal history. I'm not saying they did not - only that if they had not it was just as bad as the Commonwealth not doing so.
What I am thinking is that the Commonwealth had the information all along and pulled it out to prevent a possibly embarassing loss. And that sux!
stay safe.
marshaul
Campaign Veteran
What does a felony record have to do with anything? Folks can catch a felony for all sorts of non-criminal behavior.
August McCartny was doing a fantastic job of destroying the credibility of the first witness when the SHTF. CA said excuse me your honor I have just come into possession of new evidence regarding the defendant - asked for and got a recess to go over the material and show it to the defense.
Defendant changed his plea to guilty of brandishing and accepted the judgement of the court: 60 days in jail (suspended for 2 years pending good behavior), $500.00 fine, revocation of CHP, forfeiture of handgun and no felony charge (would be separate case) on falsifying application for CHP. He was allowed one year to pay court costs.
Don't know why no one else found out about it. Maybe it was not properly reported into the system. The brandishing event took place a year ago and the CA told the court that this new information just come to his attention today.
Moral of the story - make sure you tell the judge the truth......both on CHP application and face to face in court. Skeletons in the closet have a bad habit of clanking at the wrong time.
Defendant changed his plea to guilty of brandishing and accepted the judgement of the court: 60 days in jail (suspended for 2 years pending good behavior), $500.00 fine, revocation of CHP, forfeiture of handgun and no felony charge (would be separate case) on falsifying application for CHP. He was allowed one year to pay court costs.
Don't know why no one else found out about it. Maybe it was not properly reported into the system. The brandishing event took place a year ago and the CA told the court that this new information just come to his attention today.
Moral of the story - make sure you tell the judge the truth......both on CHP application and face to face in court. Skeletons in the closet have a bad habit of clanking at the wrong time.
marshaul
Campaign Veteran
Yup. The government will use anything it can against you to win, regardless of any actual relevance to any actual crime (I was unaware the having committed crimes in the past was an element of brandishing
). This is why I do everything in my power to avoid even casual contact with law enforcement. Folks who know me know that my behavior in public is to a large degree dictated by this requirement. I wouldn't even call the police over anything less than bullets impacting flesh.
You catch one BS charge, get railroaded into a plea deal, and that will follow you for the rest of your life, regardless of any aggression committed on your part.
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TFred
Regular Member
Every law-abiding citizen of the Commonwealth should be embarrassed by such unethical behavior.
At a minimum, it seems to me they should have finished the trial and then dealt with any "new evidence" especially which had nothing to do with the trial under way. It is things like this that give credence to the tinfoil hat people who postulate that the NSA has some blackmail-able scoop on nearly every highly placed official in government. (See Roberts' ruling on Obamacare, for most compelling example.)
TFred
ETA: It will be most interesting to see if this shady strong-armed deal gets any news coverage. I'm guessing not.
At a minimum, it seems to me they should have finished the trial and then dealt with any "new evidence" especially which had nothing to do with the trial under way. It is things like this that give credence to the tinfoil hat people who postulate that the NSA has some blackmail-able scoop on nearly every highly placed official in government. (See Roberts' ruling on Obamacare, for most compelling example.)
TFred
ETA: It will be most interesting to see if this shady strong-armed deal gets any news coverage. I'm guessing not.
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Was that the sentence below at General District Court?
Sounds like the plea agreement was to take the original sentence and thus avoid a felony perjury charge. Maybe not such a bad decision overall.
stay safe.
Consider the options.....not whether you approve or disapprove of the methodology.
Young man beats brandishing charge. CA brings action against him for falsifying information on the CHP application.
Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.
https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2
Young man beats brandishing charge. CA brings action against him for falsifying information on the CHP application.
Any person who violates this section shall be guilty of a Class 6 felony. However, any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of a violent felony as defined in § 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years. Any person who violates this section by knowingly and intentionally possessing or transporting any firearm and who was previously convicted of any other felony within the prior 10 years shall be sentenced to a mandatory minimum term of imprisonment of two years. The mandatory minimum terms of imprisonment prescribed for violations of this section shall be served consecutively with any other sentence.
https://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-308.2
Don't have that information in my files Skid - only became aware of this when it went to appeal.
All in all, think he made a wise choice and learned (I hope) a valuable lesson - albeit an expensive lesson.
Sounds like the CA "surfaced" the perjury issue and suggested that in exchange for reversing his plea to "Guilty" the CA would agree not to persue the perjury matter. Still trying to figure out how the CA was not aware of that information before the first trial as opposed to the Perry Masonesque tactic of suddenly receiving new evidence.
Also sounds like the defendant made the best of a bad situation.
To add to what Grapeshot said - also tell your defense attorney of every skeleton in your clostet - going all the way back to nursery school.
stay safe.
2a4all
Regular Member
Is it possible that the CA applied leverage of the VSP opinion of the effect that the recent ruling in US v Castleman had on US v White, i.e. the defendant didn't used to be a prohibited person but now he is?
Seeing as how we are not aware of what the unreported prior conviction was about, it would be impossible to answer that question.
And quite frankly, other than as a trivia contest for legal buffs, I do not see how knowing the answer applies to the discussion about brandishing.
stay safe.
From CHP Application
8.Check yes or no for each of the following questions
a.
1.have you ever been convicted of a felony offense?
(include felony convictions of driving under the influence and/or any offense for which you were convicted as a juvenile,which would have been a felony if committed by an adult.
[SUP][SUB]Failure to acknowledge a conviction may be construed as making a materially false statement.[/SUB][/SUP]
2. Have you been convicted of a misdemeanor offense within the five - year period immediately preceding this application?
(include misdemeanor convictions of driving under the influence. Do not include traffic infractions or those misdemeanors set forth in title 46.2code of virginia)
if yes, complete form 1 part b page 2.
Failure to acknowledge a conviction may be construed as making a materially false statement.
http://www.vsp.state.va.us/download...for_Concealed_Handgun_Permit_Rev_7-1-2013.pdf
8.Check yes or no for each of the following questions
a.
1.have you ever been convicted of a felony offense?
(include felony convictions of driving under the influence and/or any offense for which you were convicted as a juvenile,which would have been a felony if committed by an adult.
[SUP][SUB]Failure to acknowledge a conviction may be construed as making a materially false statement.[/SUB][/SUP]
2. Have you been convicted of a misdemeanor offense within the five - year period immediately preceding this application?
(include misdemeanor convictions of driving under the influence. Do not include traffic infractions or those misdemeanors set forth in title 46.2code of virginia)
if yes, complete form 1 part b page 2.
Failure to acknowledge a conviction may be construed as making a materially false statement.
http://www.vsp.state.va.us/download...for_Concealed_Handgun_Permit_Rev_7-1-2013.pdf
Of the many pages of useful advice you've written Skid.....That may be the best! I'm sure the defense lawyers were devastated.
TFred
Regular Member
From the limited facts posted here, this seems to be a clear case of legal blackmail.
None of the facts that are known, to me at least, indicate that a CHP was involved with the original charge, and why would it be? The original description seems to indicate the brandishing charge came as a result of a road-rage confrontation. The method of carry prior to that should have nothing to do with it - the only possibility being that if it WERE concealed, that may have emboldened the aggressor who would not have known the victim was prepared to defend himself.
For reasons that are shady at best, what can only be described as "evidence of a prior, unrelated crime" came up during the trial. Upon being presented with such evidence, and threatened with further prosecution, the defendant was forced into damage control, and the case played out as reported.
I would suppose there are dozens if not hundreds of scenarios that any of us could come up with to illustrate the absurdity of this course of events. I'm surprised the IRS didn't jump in on this opportunity to conduct audits of the guy's past 10 years tax returns as well.
TFred
None of the facts that are known, to me at least, indicate that a CHP was involved with the original charge, and why would it be? The original description seems to indicate the brandishing charge came as a result of a road-rage confrontation. The method of carry prior to that should have nothing to do with it - the only possibility being that if it WERE concealed, that may have emboldened the aggressor who would not have known the victim was prepared to defend himself.
For reasons that are shady at best, what can only be described as "evidence of a prior, unrelated crime" came up during the trial. Upon being presented with such evidence, and threatened with further prosecution, the defendant was forced into damage control, and the case played out as reported.
I would suppose there are dozens if not hundreds of scenarios that any of us could come up with to illustrate the absurdity of this course of events. I'm surprised the IRS didn't jump in on this opportunity to conduct audits of the guy's past 10 years tax returns as well.
TFred
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2a4all
Regular Member
Not the first time, nor will it be the last that a CA wields both edges of his "prosecution sword", especially against someone whose resources may be nearly exhausted.
And just because the CHP Application only asks about felonies doesn't mean that knowledge of a "crime of domestic violence" won't be taken into account to deny a permit. Of course, the applicant can appeal....