Problems with a CWOF

[waltherlover]

Hi there - I'm asking this for a friend of mine.

Here's the situation:

3/16/16 - My friend does a plea deal on a DUI, gets a CWOF and a year probation.
3/18/16 - My friend applies for his LTC, meets with Dedham chief, chief denies it because of DUI (CWOF???)
About a month later, my friend gets a denial letter, with the 90 appeal privision. Not 100% sure what the denial reason was, and my friend is at work, so I can fill in those blanks later. He thinks it was for the DUI offense, but has to check.

Now - clearly this was somewhat of a bonehead move, since he now has a denial on his record. However, if memory serves, with the recent law revision, the COP has to go to court to issue a denial.

He's trying to figure out whether he should appeal this or not. And if he does, who would one recommend as good attorney for this? One question I have is when the 90 day appeal clock starts running. Is it when the chief told him no, or the date of the denial letter?

Thanks.

 

[Rob Boudrie]

Now - clearly this was somewhat of a bonehead move, since he now has a denial on his record. However, if memory serves, with the recent law revision, the COP has to go to court to issue a denial.

The COP has to go to court to deny an FID; not to deny an LTC.

Keith Langer, Karen MacNutt; Jason Guida all come to mind. (there are others, but those are the ones I think are in the eastern part of the DPRM).

There are two possible reasons for the denial:

1. Suitability - already discussed ad nauseum

2. Since he is still within the CWOF period, he is technically facing misdafelony charges until the term of CWOF has expired and charges formally dismissed, which would render him ineligible until that time.

A consult with an attorney would not hurt, but it may just be a matter of waiting out his CWOF time.

 

[exo]

Applying for his LTC two days after getting a CWOF? Where does he think this is, America?

 

[Rob Boudrie]

Applying for his LTC two days after getting a CWOF? Where does he think this is, America?

As I mentioned before, prior to the expiration of the CWOF, one is technically in a "charges pending" status.

 

[EJFudd]

Applying for his LTC two days after getting a CWOF? Where does he think this is, America?

America or not, that's a pretty darn gutsy move. Remember where we live. I'd want to stay under the radar for a while... like a year or more.

Rob's thinking on this sounds right on the money.

 

[JAD]

As I mentioned before, prior to the expiration of the CWOF, one is technically in a "charges pending" status.

And because OUI is a >2 year state misdemeanor, it would meet the federal definition of a crime punishable by more than 1 year imprisonment. Pursuant to the GCA an individual charged with a crime punishable by more than 1 year imprisonment is federally prohibited from purchasing or receiving firearms or ammunition (though federal law does not disqualify an individual in such a position from continuing to possess what they already have).

1. Suitability - already discussed ad nauseum

In addition to the usual suitability discussion associated with OUI, an application involving a probationer would also require very careful consideration of the implications of the conditions (general and special) which may be imposed upon such person. If somebody has a condition of release or of probation that was prohibitive, I would expect that a CLEO might deny based on that premise as well.

 

[Chevy 2 65]

Mass >>where your rights get ****ed at every turn

 

[Rob Boudrie]

And because OUI is a >2 year state misdemeanor, it would meet the federal definition of a crime punishable by more than 1 year imprisonment. Pursuant to the GCA an individual charged with a crime punishable by more than 1 year imprisonment is federally prohibited from purchasing or receiving firearms or ammunition (though federal law does not disqualify an individual in such a position from continuing to possess what they already have).

The federal definition of felony for the purposes of 18 USC 922g is:

- Felony punishable by more than one year
- Misdemeanor punishable by more than two years (hence the MA Misdadelony)
- But not a crime involving anti trust or restraint of trade violations

 

[JAD]

The federal definition of felony for the purposes of 18 USC 922g is:

- Felony punishable by more than one year
- Misdemeanor punishable by more than two years (hence the MA Misdadelony)
- But not a crime involving anti trust or restraint of trade violations

Rob, I am very aware of that hence my post. To large extend, I believe that you and I (or at least I) am putting too much focus on semantics. However to explain my choice of wording and content-

18 USC 922g does not use the term felony. The statutory term is the one I used which is a crime punishable by imprisonment for a term exceeding one year. A crime punishable by imprisonment for a term exceeding one year is a term of art defined in 18 USC 921(a)(20) [and a relevant CFR section] to have its facial meaning except that the term does not include state law misdemeanors punishable by imprisonment for 2 years or less or anti-trust or restraint of trade violations.

OUI 1st or 2d in mass is punishable by up to 2.5 years HOC, making it a state law misdemeanor which is not excluded from the definition of a crime punishable by imprisonment for a term exceeding one year since despite being a state law misdemeanor it is punishable by more than two years imprisonment.

A person with pending charges for a crime punishable by imprisonment for a term exceeding one yearis prohibited from receiving a firearm or purchasing/being sold a firearm or ammunition by federal law. Federal law would not prohibit a person with such charge from possessing a firearm or ammunition already in their position so long as they have not yet been convicted. [The situation Texas Gov. Perry was is in while his felony case was pending] (States can prohibit possession if they want.)
MGL C.140 S. 131(q) reinforces that nothing in C. 131 "authorize the purchase, possession or transfer of any weapon, ammunition or feeding device that is, or in such manner that is, prohibited by state or federal law."
MGL C. 140 S. 131(e) requires "If the information available to the colonel does not indicate that the possession of a firearm or large capacity firearm by the applicant would be in violation of state or federal law, he shall certify such fact, in writing, to the licensing authority within said 30 day period.".

Even if an individual was able to get a newly issued LTC or FID card while being being the subject of pending charges that constitute a crime punishable by imprisonment for a term exceeding one year,the only way that the individual would be able to lawfully possess a firearm (until resolution of the case by eithin non-conviction or by conviction of a non-prohibitive Misdemeanor (punishable by 2 years or less) is if they were in possession of the firearm prior to being charged (which could only lawfully happen in a few very specific circumstances).

 

[Rob Boudrie]

Yup to everything JAD said, with greater precision than my post (thanks).

It's worth noting that (a) NICS will not "miss" the fact that a MA first offense OUI under the present law is prohibitive offense and (b) NICS will not grant an appeal based on a FLRB relief since the FLRB does not restore the right to vote, server on a jury and hold public office (the fact that those were never lost does not matter to NICS, the federal position is without loss of those rights, gun rights cannot be restored)

 

[Chevy 2 65]

Yup to everything JAD said, with greater precision than my post (thanks).

It's worth noting that (a) NICS will not "miss" the fact that a MA first offense conviction OUI under the present law is prohibitive offense and (b) NICS will not grant an appeal based on a FLRB relief since the FLRB does not restore the right to vote, server on a jury and hold public office (the fact that those were never lost does not matter to NICS, the federal position is without loss of those rights, gun rights cannot be restored)

Continuance without a finding is referred to as "CWOF." It is an admission of guilt or an "admission to facts sufficient for a finding of guilt." Through this plea, the defendant admits guilt, essentially pleading "no contest," and in return, the court makes a determination that there exists sufficient evidence to support a guilty finding, but it does not officially enter a finding of guilty. Instead, the court continues the case "without a finding" for a set period of time during which time the defendant is formally placed on probation. If the defendant satisfies the conditions of probation, the case is dismissed by the court without a conviction. A "CWOF" is often helpful for defendants with no prior criminal record.

 

[Len-2A Training]

During that CWOF period, the person's case is still "open" and thus they are ineligible under Fed Law and can't purchase anything. I'm 99.999% certain that this status would prevent FRB from allowing issuance of a LTC even if the chief wanted to issue it.

The individual involved must wait until the case is ultimately dismissed 1 year after the plea deal before applying for a LTC, and due to a couple of bad decisions, that person now must forever declare a denial on every license application form.

 

[Chevy 2 65]

During that CWOF period, the person's case is still "open" and thus they are ineligible under Fed Law and can't purchase anything. I'm 99.999% certain that this status would prevent FRB from allowing issuance of a LTC even if the chief wanted to issue it.

The individual involved must wait until the case is ultimately dismissed 1 year after the plea deal before applying for a LTC, and due to a couple of bad decisions, that person now must forever declare a denial on every license application form.

That is the suck part

 

[Rob Boudrie]

A CWOF for OUI occupies a funny DMZ between conviction and dismissal. Yes, it's a dismissal - but treated as a "former conviction" for determination of future OUI offense sentencing, and also for the purposes of CDLs (thanks to a SJC decision ruling that someone who accepted a CWOF had all the protections of the court available, and could have gone to trial).

While it is not now a disqualifier, there is always the possibility the SJC will determine ex post facto that former CWOFs are now convictions for the purpose of firearms ownership - a risk anyone accepting a CWOF must consider.

 

[headednorth]

That is the suck part

Just curious why that is? Is there something more to it other than having to give an explanation?

 

[bostonasphalt2]

Just curious why that is? Is there something more to it other than having to give an explanation?

It is an easy lever for an anti-2A COP to pull to give someone a hard time.

 

[MachineHead]

Continuance without a finding is referred to as "CWOF." It is an admission of guilt or an "admission to facts sufficient for a finding of guilt." Through this plea, the defendant admits guilt, essentially pleading "no contest," and in return, the court makes a determination that there exists sufficient evidence to support a guilty finding, but it does not officially enter a finding of guilty. Instead, the court continues the case "without a finding" for a set period of time during which time the defendant is formally placed on probation. If the defendant satisfies the conditions of probation, the case is dismissed by the court without a conviction. A "CWOF" is often helpful for defendants with no prior criminal record.

Let me get this straight - If you satisfy the conditions of your probation under the CWOF, when the case is dismissed without a conviction, is the final result a CWOF or a dismissal?

In other words, is the dismissal similar to a "not guilty" or what? I'm confused.

 

[Rob Boudrie]

Let me get this straight - If you satisfy the conditions of your probation under the CWOF, when the case is dismissed without a conviction, is the final result a CWOF or a dismissal?

CWOF dismissal. It is distinguishable on the BOP from other forms of dismissal like nolle prossequi, and in certain circumstances (formerly discussed) treated differently than an outright dismissal.

 

[thorin]

While it is not now a disqualifier, there is always the possibility the SJC will determine ex post facto that former CWOFs are now convictions for the purpose of firearms ownership - a risk anyone accepting a CWOF must consider.

If I remember correctly there was a bill in the House back in 2007 or so to consider a cwof a disqualifier for FID/LTC. There was a big anti gun push that year and there was a hearing on all the gun bills where pretty much only GOAL members showed up and we got everything squashed.

 

[Chevy 2 65]

A CWOF for OUI occupies a funny DMZ between conviction and dismissal. Yes, it's a dismissal - but treated as a "former conviction" for determination of future OUI offense sentencing, and also for the purposes of CDLs (thanks to a SJC decision ruling that someone who accepted a CWOF had all the protections of the court available, and could have gone to trial).

While it is not now a disqualifier, there is always the possibility the SJC will determine ex post facto that former CWOFs are now convictions for the purpose of firearms ownership - a risk anyone accepting a CWOF must consider.

The SJC is awesome, they would never do that

 

[Chevy 2 65]

Lets not forget this. If the defendant satisfies the conditions of probation, the case is dismissed by the court without a conviction.

Whoever went in front of the SJC for that CDL case is not very good. Mass is half ass

 

[swatgig]

Judge McGill makes sure the defendant knows exactly what he is doing. He asks if the defendant is changing his plea to guilty, and asking the court to not enter a guilty finding.

Other judges will ask if what the prosecutor just described is what happened.

This is not a no contest plea. It's a guilty plea and begging for mercy.

 

[JAD]

Lets not forget this. If the defendant satisfies the conditions of probation, the case is dismissed by the court without a conviction.

Whoever went in front of the SJC for that CDL case is not very good. Mass is half ass

It's not as ass-backwards as it sounds. CDLs are regulated under MGL C. 90F, which uses conviction as a term of art with a special definition different from its ordinary definition, and is in part based on what is supposed to be a uniform framework based (at least in part on) federal definitions found in the Code of Federal Regulations and limitations on the affect of diversionary programs resultant to federal statute. In short, the definition of a conviction in MGL C. 90F S. 1 is applicable because of language in that, and in relevant federal regulations, regarding findings that the defendant violated the law- which the court ruled would be met by stipulation to sufficient facts requirement associated with obtaining a CWOF. Additionally relevant federal laws prohibit states from "masking" MV offenses by CDL holders, as part of an effort to improve highway safety. In the case, the defendant (who petitioned the SJC) made an attempt to claim that in accepting his CWOF the court did not actually make the finding of violation of law (in part because the judgement of guilt for violation of conditions is only one possible outcome) but the SJC did not accept that claim because (in short) the SJC found that the stipulation to facts made as part of seeking the CWOF demonstrated that the defendant violated the law and was thusly being penalized for it on .

See Tirado v. Board of Appeals

 

[Chevy 2 65]

Not driving, but the 2A right. What other right is denied by a misdemeanor conviction?

- - - Updated - - -

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

 

[Rob Boudrie]

(in short) the SJC found that the stipulation to facts made as part of seeking the CWOF demonstrated that the defendant violated the law and was thusly being penalized for it on .

Nice summary.

Basically, the SJC decided that there is indeed a finding in a "without a finding" disposition.

Read the case carefully. This is very, very close to a determination that a CWOF w/ASF is a disqualifier for LTC purposes.

In my opinion (which counts for exactly nothing), the court missed the purpose of ASF. It is not to have a "finding without a finding", but rather to serve as an admission that will be used to avoid re-trying the facts of the case if the defendant violates the terms of the CWOF.

 

[Chevy 2 65]

Nice summary.

Basically, the SJC decided that there is indeed a finding in a "without a finding" disposition.

Read the case carefully. This is very, very close to a determination that a CWOF w/ASF is a disqualifier for LTC purposes.

In my opinion (which counts for exactly nothing), the court missed the purpose of ASF. It is not to have a "finding without a finding", but rather to serve as an admission that will be used to avoid re-trying the facts of the case if the defendant violates the terms of the CWOF.

Is this what you are talking about?

Admit to a Finding: admission by defendant that criminal charges are true or that there is sufficientevidence that a judge or jury could find such facts true. Court may either continue the case withouta finding for a period of time (see CWOF) or enter a finding of guilty. Also known as admission tosufficient facts.

CWOF or CWF Continued without a finding: not considered a conviction. The court allows the defendant to "save"his record and not have a guilty finding entered as long as he completes a period of probationwithout further criminal charges and complies with the terms of probation. Most often occurs wherethe defendant has admitted to sufficient facts (see above).

http://cwc.cedac.org/uploads/files/e2dispositioncodes.pdf

An answer?

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

 

[JAD]

Nice summary.

Basically, the SJC decided that there is indeed a finding in a "without a finding" disposition.

Read the case carefully. This is very, very close to a determination that a CWOF w/ASF is a disqualifier for LTC purposes.

In my opinion (which counts for exactly nothing), the court missed the purpose of ASF. It is not to have a "finding without a finding", but rather to serve as an admission that will be used to avoid re-trying the facts of the case if the defendant violates the terms of the CWOF.

I agree that they totally missed the point. I also agree that it leads in a direction that could be very dangerous for FID/LTC purposes in the future, if courts build on it a little- given the definition in c. 140 s. 121.

One of the important things to consider about a CWOF is that under MGL c. 278 s. 18 it is described as a request for a specific disposition (i.e. that a finding of guilt not be entered and after a certain amount of time that a dismissal be entered if terms are met) in conjunction with a plea (i.e. admission to sufficient facts). In a way, the court needs to, in effect, make a finding by choosing to accept the conditioned plea. [The alternative being that the court could reject the plea] (When a person violates a CWOF the Court may then enter a finding of guilt) In Tirado, this concept is addressed on page 339 in which SJC addressed it specifically writing "Commentators and the established practice in the District Court indicate that a judge would not and should not accept an admission to sufficient facts unless that admission had a factual basis to support a finding of guilt of the crime charged."

My personal belief (keeping in mind that I am not a lawyer) is that in Tirado the SJC designed its ruling as it did to ensure compliance with federal prohibition on masking CDL holders MV violations. Several years ago (2013), the Connecticut legislature amended the relevant statutes applicable to the Accelerated Rehabilitation (to prevent use of AR by CDL holders for MV violations, CDL holders charged with other crimes can potentially be granted AR) and Alcohol Education (1st offense DUI diversion) Programs on the same basis. Non-compliant states can be penalized through withheld federal highway funds.

The feds have a history of defining convictions in a way that unfavorable toward diversionary programs. For example, a CWOF-ASF is considered a conviction immigration related purposes.

 

[42!]

A somewhat related observation.

Every time I see/hear a discussion on a CWOF it's always a continuation after a guilty plea along with an admission of sufficiant facts...But

From the "Massachusetts Rules of Criminal Procedure Including amendments effective January 1, 2016"
Rule 12: Pleas and Withdrawals of Pleas
(2) Admission to Sufficient Facts. In a District Court, a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.

I haven't been able to find anything that allows a ASF following a guilty plea... other than lots of people saying it's done that way.

So why do I always see it as a CWOF after a guilty plea?

 

[Knuckle Dragger]

During that CWOF period, the person's case is still "open" and thus they are ineligible under Fed Law and can't purchase anything. I'm 99.999% certain that this status would prevent FRB from allowing issuance of a LTC even if the chief wanted to issue it.

^^ By far the best and most succinct answer in this thread.

While it is not now a disqualifier, there is always the possibility the SJC will determine ex post facto that former CWOFs are now convictions for the purpose of firearms ownership - a risk anyone accepting a CWOF must consider.

^^ This is a very real concern and not without precedent. An OUI CWOF is considered a predicate offense for sentencing purposes subsequent OUI charges.

Now - clearly this was somewhat of a bonehead move, since he now has a denial on his record. However, if memory serves, with the recent law revision, the COP has to go to court to issue a denial.

^^ This isn't really a big deal. If the OP's friend is qualified for an LTC at a future time, his previous disqualification should not be a factor.

A somewhat related observation.

Every time I see/hear a discussion on a CWOF it's always a continuation after a guilty plea along with an admission of sufficiant facts...But

From the "Massachusetts Rules of Criminal Procedure Including amendments effective January 1, 2016"
Rule 12: Pleas and Withdrawals of Pleas
(2) Admission to Sufficient Facts. In a District Court, a defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.

I haven't been able to find anything that allows a ASF following a guilty plea... other than lots of people saying it's done that way.

So why do I always see it as a CWOF after a guilty plea?

^^ An ASF is essentially a guilty plea and should be thought of that way. I think of a CWOF/ASF as essentially a 'guilty plea-light'. One of the biggest problems with a CWOF/ASF is a judge can enter a finding of guilty and impose sentence without taking any further evidence of the underlying offense after a violation of the conditions of a CWOF.

I was surprised to learn that a CWOF is not always accompanied by ASF. I was attending an LTC denial hearing last week where the petitioner had an old CWOF, but no ASF.

 

[In God We Trust]

I can say first hand that I have a couple CWOF on my record from like 25 years ago. Not OUI however. Also a felony that was dismissed, but the charge is still there.

My chief didn't bat an eye at the CWOF, but wanted a written explanation of the dismissed felony. He still gave me an unrestricted LTC.