GUN RIGHTS – UNKNOWN CONSEQUENCES OF GUILTY PLEAS
Jan. 24, 2013
It is the job of any good criminal defense attorney to know and advise your client of the consequences of entering a guilty plea to a charge. Some of these consequences are more obvious than others in any given case. For example, jail time, a fine, loss of a drivers’ license or the right to vote for a period of time are all standard consequences of a guilty plea and resulting criminal conviction. In Wisconsin, defense attorneys and Courts are required to advise a defendant that they will face certain consequences and lose certain rights by pleading guilty. The purpose behind this requirement is to ensure that a person enters his or her plea knowingly, intelligently and voluntarily.
However, there are some consequences of a guilty plea that are less well-known or understood by Courts and attorneys, and therefore are often not properly explained to a defendant. One of these consequences involves the loss of the right under federal law to possess a firearm for individuals convicted of less serious, misdemeanor crimes that involve “domestic violence”. A crime is designated as a “domestic violence” offense if the people involved, the victim and the perpetrator, have a particular relationship to one another, for example, if they are married, or have a child in common, or are child and parent. If a defendant pleads guilty to a misdemeanor crime, such as disorderly conduct, that is designated as domestic violence because it involved a husband and wife, that defendant may never possess a firearm again for any purpose, including hunting or protection. It is an automatic, lifelong ban.
In a case that Mastantuono Law Office recently handled, our client pled guilty over 10 years ago to a misdemeanor disorderly conduct, domestic violence related, stemming from an argument with his then-wife. His attorney at the time successfully negotiated with the prosecutor to have the domestic violence designation dismissed so that the client, who is a life-long hunter, could continue to possess a gun. The Court dismissed the DV designation, and the client pled guilty to disorderly conduct. He completed his sentence, and went about his life. Everyone involved, including both attorneys and the client believed the outcome was sufficient to allow him to continue to possess a firearm. Over ten years later, they learned that they were wrong when our client’s application for a handgun was denied because, as it was explained to him, he had a misdemeanor crime of domestic violence on this record. This is when Mastantuono Law Office got involved.
What we learned after much research is that the determination of whether a person has committed a crime of domestic violence does not only depend on the ultimate conviction, but on the facts underlying the case itself, i.e. what do the police reports and criminal complaint say? What was said in Court about what the defendant did or did not do? All of this is reviewed when determining whether someone should be prohibited from ever possessing a firearm again.
To remedy this situation, and to ensure that the intent of everyone involved in the initial case resolution, our client, his attorney, and the prosecutor, is honored, we filed a motion to withdraw his plea and to reopen the case, which can be found here. We expect this situation to arise again in the future; check back for updates on this case and others addressing the same issue.