nstassel
NES Member
In 2018 a guy called me to see if he could get his LTC issues resolved. He was a veteran who in 2011 had a second offense OUI but the prior offense was more than 10 years old at the time of the arrest. This meant he was entitled to be considered for another first offense disposition of a continuance without a finding (Commonwealth v. Cahill, 442 Mass. 127 (2004)). Instead his lawyer had him plead to a guilty first offense disposition which caused him to be a disqualified person. Evidently the lawyer believed that the Commonwealth had to agree to a CWOF and when they did not agree he misadvised the client to plead guilty. He also told the client that his LTC would be suspended but restored after he was off probation for five years. He waited five years then reapplied and found that he was screwed. At the time we started working on this the Firearms License Review Board was shut down by the ATF proclamation that Massachusetts could not restore rights, so his only option was to try to vacate the plea. For a long time we tried to get the attorney to agree to an affidavit that said he misadvised the client, but the end result was lukewarm. We got one of the most prominent OUI attorneys in the state (a friend from our DA days) to do an affidavit that CWOFs were common dispositions in this scenario. With this we filed a motion to vacate the conviction.
Last year the DA rejected our offer to let him plead again to a CWOF and filed a serious opposition to our motion to vacate. After an insane delay the Court vacated the conviction for ineffective assistance of counsel. The DA then appealed the decision and we've been waiting for them to file a brief for six months. I learned today that rather than file a brief the DA had entered a nolle prosequi in the district court ending the prosecution which is a dismissal (a latin phrase, which translates to “not to wish to prosecute.”) A great outcome since now he's no longer disqualified and can get the LTC back-after waiting 11 years. We had a laugh talking since when we started he was a newly wed with no kids. This weekend his two sons have easter...justice isn't fast sometimes.
Last year the DA rejected our offer to let him plead again to a CWOF and filed a serious opposition to our motion to vacate. After an insane delay the Court vacated the conviction for ineffective assistance of counsel. The DA then appealed the decision and we've been waiting for them to file a brief for six months. I learned today that rather than file a brief the DA had entered a nolle prosequi in the district court ending the prosecution which is a dismissal (a latin phrase, which translates to “not to wish to prosecute.”) A great outcome since now he's no longer disqualified and can get the LTC back-after waiting 11 years. We had a laugh talking since when we started he was a newly wed with no kids. This weekend his two sons have easter...justice isn't fast sometimes.
