October 24, 2011 by csealy
Our firm was retained post conviction to determine if there were any grounds for an appeal. Another firm handled the trial of the case. The evidence presented at a jury trial against our client was strong and the jury convicted him of three drug related crimes, importing marijuana into the Commonwealth of Virginia, possession of more than five pounds of marijuana, and conspiracy to distribute. In Virginia, the jury recommends a sentence and almost 100% of the time a judge sentences to the jury’s recommendation. The jury recommended a total sentence of fifteen years, five years on each conviction. However, Virginia Sentencing Guidelines called for a 3 year active time of incarceration.
In reviewing the trial transcript, Lindsey A. Flaherty of our firm discovered that the trial judge had made some comments about the “strong smell of marijuana” coming from the boxes that were not tested for marijuana residue. Further, the comment was made just after defense counsel had objected to the classification of the plant material in the boxes as being marijuana. Lastly, this comment was made within earshot of the jury.
Based on this comment, Lindsey and Andrew A. Protogyrou filed a Motion for Mistrial arguing that the trial judge’s comment amounted to testimony confirming that the plant material in the boxes was marijuana. We anticipated arguing this motion prior to the sentencing hearing. Instead of arguing the motion in open court, we asked to meet in chambers with the Court and explain our position. This was done in an effort to avoid embarrassment for the trial judge and discuss our ultimate goal – getting the lowest possible sentence for our client.
Ultimately, we withdrew our motion and the judge sentenced our client to three years, which was the minimum mandatory sentence by statute. The judge noted that they could and that the jury fined our client only $1. Therefore, the judge was comfortable in sentencing our client to the three years recommended in the guidelines.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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October 20, 2011 by Allan
This is one subject that deserves talking about. We all can support a law which punishes those who try to injure those who protect us from criminals. But as is often in legal matters what you see is not what you get. The Va. Code Section involved is 18.2-57. You should check it out. It covers all kind of assaults. Various catagories for various “victims” If you are a law enforcement officer an assault is a felony carrying up to 5 years in ptison with 6 months a mandatory minimum sentence. That means 6 months to serve, no probation, nor parole, you will do the time. For teachers, a misdemeanor (guess that they’re not so important or as vulnerable). It’s two days mndatory minimum. Health care providers involves misdemeanor treatment, with two days mandatory minimum.
The law enforcement provision includes corrections officers, firemen, regular or volunteer, plus rescue squad workers. Interesting but not so bad. But note this.
Our courts have interpreted assault to mean swings at police officers that miss, minor taps, and sometimes gestures no injury is required. Yes, it’s true, on October 18, 2011, the Virginia Court of Appeals affirmed a decision of the Virginia Beach Circuit Court which found a woman guilty of felony assault when she attempted to kick a police officer, but missed. You say What? I say under a very broad view of assault, you don’t need to connect. Close is good enough, like horseshoes. That means a felony conviction 6 montha to serve no matter what.
The lesson here is treat an arresting officer with kid gloves. He has the power to mess up your life for good. Remember my past blog on what is a “verity.”
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October 11, 2011 by Allan
Now here’s a subject for you. Unless you happen to be a Habitual Offender yourself, it’s hard to understand what this law is all about. The State of Virginia keeps records on driver convictions. If you get enough of qualifying convictions, the DMV will determine that you are a Habitual Offender and suspend your drivers license. They write a letter to you telling you this. Usually the convictions are for suspended permit, no permit and DUIs. The great majority of these HOs are people who are convicted of driving while their permit has been suspended. Usually, the permit is suspended for failing to pay fines and costs for other convictions. Getting technical here.
In any case, if you drive anyway and get caught it’s a misdemeanor. Usually no active jail. But getting caught a second time is really rough. It is a felony with a mandatory minimum sentence of one year. That’s right folks 85% of one year for driving when you are not supposed to. When you’re in the “Big House” and your cellmate asks you what you’re in for, you can say “driving after being declared a habitual offender – second offense”. Yeah, that will impress the guys doing hard time.
Amandatory minimum sentence means that the Judge trying your case must give you 1 year to serve whether he likes it or not. This sentence can not be suspended. No probation, just do the time. Bring lots of reading material with you. And when you get out, worse news, you are a convicted felon, no more voting, no job other than manual labor, and no firearms for you.
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September 22, 2011 by Allan
I have trouble giving this one a title. What I want to talk about are the unintended consequences of a finding of guilt in certain cases and “zero tolerance” policies.
I represnted a man charged with assault on his 12 year old child. My client, the father, hit his daughter three times with his belt, tryimg to punish her for her misbehavior. Now you may think “Yeah, he should get punished.” Maybe so, but what is appropriate.
The parents are estranged and don’t live together, they split custody. The assault warrant was taken out by the mother.
The father is a 10 year civilian employee of the Dept. of the Navy. Had no previous criminal record and had graduated from a 4 year college. Well, the Navy security has a “zero tolerance” policy for family abuse issues. When they found out about it, he lost his security clearence and thus lost his job. The Judge imposed a punishment of probation and schooling in proper parenting. His employer imposed the capital punishment of the workplace-termination. My client is obligated to pay child support which he can no longer pay. If he falls behind in that obligation, the DMV will suspend his operator’s permit until he catches up on support payments. If he drives to work anyway and gets caught, he faced suspended operator charges. If convicted a license suspension is involved plus a lot of court costs. Eventually, a jail sentence will b imposed. And so it goes.
I wonder what is being accomplished by this
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by csealy
Andrew A. Protogyrou was recently listed in the 2011 Business Edition of Super Lawyers Magazine for Personal Injury Defense: General. He was only one of three attorneys in the City of Norfolk in that category and twelve from across the Commonwealth of Virginia. The annual list compiles the nation’s top attorneys in business practice areas from the 2010 Super Lawyers List. The publisher considered the attorneys listed as the go-to attorneys in litigation.
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Andrew A. Protogyrou, Personal Injury Defense |
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| Business Edition 2011 |
Page 348
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by csealy
Edward Hugh Okun, 60, was convicted of 23 counts, including fraud and money laundering. He owned companies that held money from clients seeking to defer capital gains on property sales. Instead of safeguarding their money, however, he spent it to finance a lavish lifestyle and purchase a jet, luxury cars, expensive jewelry and a 131-foot yacht that the named after a woman he married in a $200,000 ceremony in 2005. His lawyer Andrew A. Protogyrou, told a federal appeals court Wednesday Okun was improperly denied a hearing to challenge authorities’ raid on his Richmond businesses about $126 million was improperly denied a hearing to challenge authorities’ raid on his Richmond businesses.
Protogyrou also said the 100-year sentence was unreasonably harsh considering Okun’s age, his history of heart trouble and his lack of a previous criminal record. At sentencing, Okun’s previous attorneys had argued for a term of 10-15 years, while prosecutors had sought the maximum of 400 years.
Along with challenging the denial of a hearing on the search warrant, Okun claims the indictment insufficiently stated the elements of the wire fraud and mail fraud counts. He also alleges he was unfairly denied a two-week continuance of his trial.
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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by csealy
Andrew A. Protogyrou, argued his client’s case before a three-judge panel of the 4th U.S. Circuit Court of Appeals on September 21, 2011.
Attorney Protogyrou argued that Edward Hugh Okun’s sentence was greater than necessary and that appropriate consideration was not given to his age, health and lack of a prior criminal record. Protogyrou argued about the propriety of the April 27, 2007, search warrant of Okun’s Midlothian offices and that his indictment was flawed. Mr. Okun is accused of stealing $126 million dollars.
Protogyrou also argued that the sentence was excessive in light of Okun’s age, health problems, which include triple coronary bypass surgery in 1990, and his small prior criminal record – a driving under the influence charge in 1980.
Read the full article at: Richmond Times-Dispatch website
All case results depend on a variety of factors unique to each case. These prior case results do not guarantee or predict a similar result in any future case.
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September 20, 2011 by csealy
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Andrew A. Protogyrou and Robert B. Rigney, Personal Injury Defense: General |
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| Virginia 2011 |
Page 30
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September 13, 2011 by Allan
This us a subject of great importance in my practice. The issues involved go off in different and surprising directions.
Lets say a small packet of cocaine is found by an officer underneath a cup in the cupholder in the console of a car. No one but the driver in the car and the car is registered to the driver.
Can the driver be convicyed of possession of the cocaine? It’s a felony in Virginia, carries up to 10 years in prison. Serious stuff.
Well. the answer is no. Everyone in the criminal justice system in Virginia knows this. You need more than just that. More importantly, the police know it.Without more the driver will not be charged, and I never get to see him as a client.
The usual is that the officer showed the cocaine packet to the driver and said “What about this?’ My driver, client, responds, “yeah, that’s mine.” Case over, end of story. If the driver says nothing or denies seeing it, more is needed. Ofter the driver makes a furtive gesture towards the cocaine packet. I really don’t know what that is. Other times the packet is “in plain view.”
But most often it’s the drivers admission that sinks the ship. Tough case under those circumstances. Confession is good for the soul, not good for a guys freedom.
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September 7, 2011 by Allan
This is a touchy subject. Not for the faint at heart. I travel the highways of Tidewater, Virginia a lot and really do want the drunk drivers off the road. But I do represent DUI Defendants also. They are entitled to and get my best.
But this subject has not much to do with DUI cases. Few DUI drivers are caught at DUI checkpoints. Actually, I never defended such a driver stopped at a road block.
But to the points. In Virginia a motorist is required to stop when signaled to do so by a police officer. So you should not think about driving through one of these checkpoints without stopping. You will get arrested.
The road block can not be just set up by an individual officer. The law requires that higher police authority act to set it up and to formulate a plan. What car to stop can not be left to the individual officers. Rather there must be objective criteria, such as stop every car, every other car, or every fifth car, etc.
Apply the lessons I taught in my Blog on probable cause to stop.
Getting practical, lets say you’re driving down Route 17 on the way to the Panthers football game and you spot a road block. Maybe your papers are not in order, so to avoid it, you pull into a driveway. You the turn around and now are driving away from the road block. If an officer sees this, he will go after you and pull you over. But does he have probale cause to do so? I think not unless there is some bad driving. Probable cause is not that he thinks that you were trying to avoid the road block.
Some think that the road block manpower could better be spent on police patrols looking for DUI drivers. Everyone has an opinion on this one. Most of the tickets at these checkpoinrs are for equipment violations or permit issues.
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