Utah Criminal Defense Blog
Can You Withdraw a Guilty Plea in Utah?

Can You Withdraw a Guilty Plea in Utah?

Everyone knows that defendants have to enter a plea. What fewer people realize is that in some circumstances, you can also withdraw a plea — even if you already pleaded guilty. In this article, drug defense lawyer Darwin Overson explains the criteria for withdrawing a guilty plea in Utah. Types of Criminal Pleas Defendants Can Enter Before we examine the various types of criminal pleas, it’s very important to emphasize that you should always consult with an attorney before you accept a plea bargain, enter or withdraw a plea, or indeed make any legal decisions pertaining to your case. If you act without a full understanding of your options — and their potential consequences — you could inadvertently give up rights or incriminate yourself, increasing the risk of fines, prison, and other criminal penalties. With that in mind, let’s examine the different types of pleas which are recognized by Utah’s courts. It’s a very common misconception that plea options are limited to “guilty” and “not guilty.” In reality, the issue is more complex than simply confirming or denying the charges. Under Rule 11(b), the Utah judiciary actually recognizes five types of pleas: Not Guilty — You deny the charges. Guilty — You confirm the charges. Even if you think you may be found guilty, it is critical to discuss your options with your lawyer first. Remember, you are considered innocent until the prosecutor is able to prove the allegations beyond a reasonable doubt. Because of the presumption of innocence, the burden of proof falls on the prosecutor to demonstrate your guilt. This is established by the Due Process clauses...
What Happens if I Get Arrested While on Probation in Utah?

What Happens if I Get Arrested While on Probation in Utah?

Probation is often confused with parole. Parole means an inmate is released from jail or prison early, while probation means a convicted person avoids incarceration altogether. Probation, like parole, demands strict compliance with certain rules and conditions — and breaking these rules can lead to tough criminal penalties. In this blog post, Salt Lake City criminal defense attorney Darwin Overson will explain the possible consequences of a probation violation in Utah, what defendants can expect from the hearing process, and whether posting bail remains a possibility after violating probation. Can I Still Post Bail? Probation doesn’t come for free. In exchange for being granted probation instead of serving time, probationers must obey certain rules. A few common examples include submitting to drug testing, pursuing further education or employment, paying fines and restitution, avoiding additional arrests. If an arrest does occur, the probationer must notify his or her probation officer within several days. If you are arrested while on probation, you may still be eligible to post bail and be released from custody, provided you are not deemed to be a flight risk and/or a danger to the general public. However, there is a significant exception to bail privileges: felonies. Article 1, Section 8 of the Utah Constitution states in part the following: “All persons charged with a crime shall be bailable except… persons charged with a felony while on probation or parole.” Examples of felonies include aggravated assault, rape, manslaughter, burglary, robbery, kidnapping, theft over $1,000, and possession of marijuana with intent to distribute. If you are charged with any of these or other felonies while on probation, you...
If I Get Divorced, What Happens to My Green Card?

If I Get Divorced, What Happens to My Green Card?

From minor details to huge parts of your daily routine, getting divorced changes every aspect of your life. This is especially true of individuals who have obtained their green card by marrying a U.S. citizen in Utah (or any other state). In this article, Salt Lake City divorce attorney Andrew Stewart will discuss how getting divorced can affect U.S. citizenship. Will I Be Deported from the U.S.? The good news is that getting divorced does not necessarily mean you will no longer qualify for U.S. citizenship. The bad news is that your divorce (and marriage) may be closely scrutinized by U.S. Citizenship and Immigration Services (USCIS), which seeks to uncover marriages that were entered into for immigration purposes rather than sincere intent to build a life together. USCIS regards these fraudulent marriages as a pervasive and serious problem in the U.S. immigration system, and, depending on the circumstances of the divorce, may require you to submit certain documentation proving you and your spouse entered into a bona fide marriage. Depending on your ability to submit such documentation, USCIS may deny your citizenship or, in extreme cases, even refer your case to immigration court for possible deportation from the U.S. Deportation, while certainly not guaranteed, is a possibility in some situations. Proving a Bona Fide Marriage to USCIS The timing of your divorce plays a significant role in determining what will happen next. If your divorce occurred: After your I-130 Visa petition is approved — Form I-130 (Petition for Alien Relative), which is filed by a U.S. citizen or lawful permanent resident on behalf of the person who wishes to...
If I Get Divorced, What Happens to My Pension?

If I Get Divorced, What Happens to My Pension?

Thousands of Utahans have a pension, and thousands of Utahans file for divorce. Where the two groups overlap, some important legal question arise. What will happen to my retirement savings if I ever get divorced? And how much money can my spouse get? In this article, West Valley City divorce lawyer Andrew Stewart will explain how Utah divides pension money when a marriage is dissolved. The Woodward Formula: How Utah Calculates Pension Rights in Divorce In 1982, the Utah Supreme Court ruled in Woodward v. Woodward that pension plans accrued during a marriage were “subject to equitable distribution.” However, the term “equitable distribution” has a slightly unusual meaning in this particular context. Most of the time, equitable distribution means that the courts will take a variety of factors into consideration in order to divide property in the fairest way possible – not the evenest way possible. Therefore, if one spouse earns significantly less than the other, the spouse with lower income might be awarded a greater share of assets and possessions. With the Woodward decision, the Supreme Court created a specific formula: “The wife [should] receive one-half of the benefits accrued during the marriage, regardless of the length of time the husband continues in the same employment. Whenever the husband chooses to terminate his government employment, the marital property subject to distribution is a portion of the retirement benefits represented by the number of years of the marriage divided by the number of years of the husband’s employment. The wife is entitled to one-half of that portion.” Here’s another way of describing the same formula: Start with half the...
Am I Liable for My Spouse’s Debts if We Get Divorced?

Am I Liable for My Spouse’s Debts if We Get Divorced?

Everyone knows that property gets divided in a divorce – but what happens to the divorcing couple’s debts? Are shared debts treated differently than debts which are held by individual spouses? And is it really possible to get stuck paying off your ex-husband or ex-wife’s bills? In this article, we’ll explain how Utah treats joint and personal debts incurred during (and before) marriage. Am I Responsible for Paying Off My Spouse’s Personal Debts? Let us preface this article by stating that judicial intervention is not always necessary. If you and your spouse are able to agree on how your debts should be divided, the court is likely to accept your plan provided it doesn’t violate any state or federal laws. However, as with child support and child custody in Utah, the court will be forced to intervene if you and your spouse are unable to come to an agreement on your own terms. In the interest of keeping your divorce quick and simple as possible, you may want to try creating a debt division plan with your spouse. If it isn’t feasible to work it out on your own, or you simply don’t feel comfortable with the degree of financial planning involved in the task, you should seek assistance from an experienced family law lawyer. Utah Code § 30-2-5 clearly states the following: “Neither spouse is personally liable for the separate debts, obligations, or liabilities of the other.” In other words, your personal debts are your own, and your spouse’s personal debts are their own. This applies to debts which were incurred both before and during the marriage. It...
Provo High School Hazing Leads to Felony Charges for Teen Wrestler

Provo High School Hazing Leads to Felony Charges for Teen Wrestler

Provo High School student Luis Antonio Castellanos has been charged with multiple misdemeanor and felony offenses in connection to an alleged wrestling team hazing incident occurring on Monday, October 26. On November 3, roughly a week after the incident, Castellanos was charged in 4th District Court with three counts of hazing (a Class B misdemeanor), one count of attempted forcible sexual abuse (a third degree felony), two counts of forcible sexual abuse (a second degree felony), and three counts of aggravated kidnapping (a first degree felony). Provo HS Student Charged with Sex Crimes, Kidnapping, Hazing in Initiation Ritual Castellanos was arrested by the Provo Police Department on Thursday, October 29, three days after the incident allegedly took place. The police affidavit reports that when the wrestling team’s practice session ended on October 26, Castellanos and a second, unnamed student were instructed by a third, unnamed student to pin several younger team members to the floor. During the 15 minutes which followed, Castellanos and the second student allegedly placed their bare buttocks over the face of an unnamed 15-year-old wrestler, repeating the process twice, leading to multiple counts of forcible sexual abuse. Because he struggled against Castellanos and the second student, a 16-year-old team member was released before any physical contact was made, leading to the single count of attempted forcible sexual abuse. Among the many sex crimes Utah differentiates between, Castellanos was charged with forcible sexual abuse because the offense is defined as “tak[ing] indecent liberties… with intent to cause substantial emotional or bodily pain… without the consent of the other.” Utah is one of 44 states to have...
Can I Get Arrested for Accidentally Downloading Child Pornography?

Can I Get Arrested for Accidentally Downloading Child Pornography?

Finally home from a long day of work, you decide to unwind with some mindless internet time. You’re scrolling through Facebook, browsing around on Reddit, looking for some entertainment for the evening. You click on a link or file, thinking it’s a TV show you’ve been meaning to catch up on – only to realize you’ve just accidentally opened child pornography. You close the tab immediately, but now you’re starting to panic. Did you just commit a crime? Could you really be convicted of a felony and get placed on the Sex Offender Registry, just for making an honest mistake? In this article, Salt Lake City sex crimes attorney Darwin Overson will explain Utah’s child pornography laws – and the potential consequences of breaking them. Is it a Crime to View Child Porn by Mistake in Utah? Each state has its own set of child pornography laws. Utah’s are located under Utah Code § 76-5b-201, which refers to child pornography offenses as “sexual exploitation of a minor.” Section 1 of the statute outlines two ways to be charged with sexual exploitation of a minor: Knowingly possessing child pornography, with or without intention to distribute. Intentionally distributing or viewing child pornography. The statute explicitly specifies “knowing” and “intentional” possession, viewing, and distribution. As defined by Utah Code § 76-2-103, a person acts knowingly when “he [or she] is aware of the nature of his [or her] conduct or the existing circumstances.” A person acts intentionally when “when it is his [or her] conscious objective or desire to engage in the conduct or cause the result [of the conduct].” This is...
Can You Get Custody or Visitation with a Child Who’s Not Yours?

Can You Get Custody or Visitation with a Child Who’s Not Yours?

While most custody disputes exclusively involve the child’s parents, other relatives can also become involved. If you’re related by blood or marriage to a child whose parents are getting divorced in Utah, you should know about your rights and responsibilities under state law. When Parental Care isn’t in the Child’s Best Interests If you’re a grandmother, grandfather, aunt, uncle, brother, sister, stepfather, stepmother, stepsister, or stepbrother, this article is for you. (If you’re a grandmother or grandfather, you might also be interested in reading our previous article about child custody for grandparents in Utah.) Parents in Utah have the opportunity, and are even encouraged, to create their own parenting plans. However, this isn’t always possible. If the parents are unable to reach their own agreement, the court will step in to make an outside determination. When determining child custody, judges weigh a variety of factors to make whichever decision ultimately serves the child’s best interests. To quote Utah Code § 30-5a-103(1), “It is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children.” However, the general “presumption that a parent’s decisions are in the child’s best interests” is rebuttable. In other words, while the courts assume parental custody is in the child’s best interests – the deciding factor in all custody rulings – it is also possible for non-parents to challenge that assumption by meeting certain requirements. Criteria for Winning Custody in Utah When You’re Not the Parent In order to have a chance of winning custody, the non-parent relative will...
What Happens if a Prosecutor Lies or Withholds Evidence?

What Happens if a Prosecutor Lies or Withholds Evidence?

Most prosecutors are ethical individuals who are committed to upholding the law.  Unfortunately, a small number of unscrupulous prosecutors abuse their power in order to skew trials and obtain convictions.  In this article, Salt Lake City defense lawyer Darwin Overson will go over some common examples of prosecutorial misconduct, and explain what can happen to the defendant in a Utah criminal trial if unethical behavior is uncovered. What Are Some Examples of Prosecutorial Misconduct? If you’ve ever been called to jury duty, you already know from experience just how rigid court procedures are.  The American legal system is built on a foundation of strict and complex rules and standards, and criminal law is no exception.  The American Bar Association, or ABA, is an important part of this framework. While the ABA does not write legislation or discipline attorneys, it does play a vital role in the creation and maintenance of ethical standards for hundreds of thousands of lawyers across the United States.  These ethical standards, which are collectively known as the Model Rules of Professional Conduct, are expansive in scope, encompassing issues ranging from fees, to the duty toward a client, to advertising rules. The Model Rules are bolstered by ABA Criminal Justice Standards, some of which are devoted exclusively to the function of the prosecutor in a criminal case.  Listed below are just a few examples of the many ABA standards for prosecutors – violations of which are examples of misconduct. Prosecutors must avoid conflicts of interest. Prosecutors must not make any public statements that could potentially create bias or swing the outcome of a case. If a...
Are There Any Exceptions to the Death Penalty?

Are There Any Exceptions to the Death Penalty?

Approximately 1,417 people have been executed in the United States since 1976.  Seven of these executions took place in Utah, which controversially reinstated the firing squad option in March 2015.  State laws governing capital punishment are strict, and outright ban the death penalty for certain types of defendants.  In this article, Salt Lake City murder defense attorney Darwin Overson will explain when the death penalty is prohibited in Utah. U.S. Supreme Court Rules Death Penalty for Minors Unconstitutional If you’ve been to our legal blog before, you may remember our earlier article discussing when Utah uses the death penalty, or capital punishment.  In short, it’s extremely rare.  It can only be used when a defendant pleads guilty to or is convicted of aggravated murder, and even then, it’s still not guaranteed.  From 2008 through the summer of 2013, Utah prosecutors only sought the death penalty in about 13% of the state’s aggravated murder cases, with the vast majority opting for life imprisonment instead.  When a prosecutor seeks the death penalty, the case is referred to as capital.  A non-capital case is one in which the death penalty is not being sought. In those exceptional cases where execution is both permitted by law and sought by the prosecutor, certain factors must be in place in accordance with Utah Code § 76-5-202.  For instance, the prosecutor must file a notice of intent to seek the death penalty within 60 days of the defendant’s arraignment (where the charges are formally announced), unless the parties agree to a different arrangement or the court finds good reason to allow a delayed notice. Due to...