Nancy Willard, director of the Center for Safe and Responsible Internet Use, has published an article on the Center’s website addressing the subject of Sexting and Youth: Achieving a Rational Approach.  Among the issues addressed in the article is how children are now being prosecuted for distributing child pornography when they take and text a photo of themselves.

I wrote an article on this subject in September of 2009 entitled “Too many registered sex offenders make dangerous sex offenders difficult to track.” In that article, I discussed how laws are labeling so many people as sex offenders that it is now difficult for law enforcement to focus on those who are truly dangerous.  For example, under current laws a teenage girl who sends a nude photo of herself to her boyfriend now becomes a convicted child pornographer, subject to the same sex offender registration and community notification as a dangerous offender like Phillip Garrido. While this was clearly not the intent in passing laws against child pornography, few legislators have the courage to attempt to modify the law out of fear that they will be labeled as soft on crime. As a result, the lives of impulsive children are ruined while true sex offenders get lost in the shuffle.

I am flattered that Ms. Willard chose to footnote my article in her new article on teen sexting, and I encourage all parents to read what she has written on the subject.  Ms. Willard is an expert in this field.  In addition to being the director of the Center for Safe and Responsible Internet Use, she has also published two related books: Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Cruelty, and Cyber-Safe Kids, Cyber-Savvy Teens, Helping Young People Use the Internet Safely and Responsibly.

This is the second in a series of articles on using Rule 32 of the Alabama Rules of Criminal Procedure to set aside a guilty plea. To read Part 1, click here.

A defendant who enters an involuntary or coerced guilty plea has the right to petition the court to set aside his plea and conviction under Rule 32 of the Alabama Rules of Criminal Procedure. This rule applies even if the defendant waived his right to challenge his conviction through appeal or through post-judgment motion. Waiving the right to file a Rule 32 petition as a condition of a plea bargain does not actually preclude the filing of a Rule 32 petition that challenges the voluntariness of the plea. In fact, the act of signing documents stating that the plea is voluntary does not, in itself, establish that a plea is voluntarily made. “[A] signed Ireland form is, alone, insufficient to establish the voluntariness of a plea.” Murray v. State, 922 So. 2d 961, 965, citing Waddle v. State, 784 So. 2d 367, 370 (Ala. Crim. App. 2000).“[A]n involuntary guilty plea will necessarily render the waiver involuntary and a waiver cannot be enforced if it is not voluntary.” Boglin v. State, 840 So. 2d 926, 930 (Ala. Crim. App. 2002).

One of the ways that a plea may be involuntary is through the failure of the trial lawyer to provide effective assistance of counsel. “[I]neffective assistance of counsel may, in some circumstances, render a guilty plea involuntary,” and a defendant’s plea agreement waiver of the right to seek post-conviction relief does not waive the right to argue that the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel. Boglin at 930. Further, misrepresentations by a defendant’s counsel can make a defendant’s guilty plea involuntary. Minor v. State, 627 So. 2d 1071, 1072 (Ala. Crim. App. 1992); Elder v. State, 494 So. 2d 922, 924 (Ala. Crim. App. 1986).

To read more about setting aside a guilty plea due to ineffective assistance of counsel, see part 1 of this series. For more information, check back on our blog for future articles on this subject. If you need to consult an attorney about setting aside or vacating an Alabama conviction, please contact our office by phone or email to discuss the specifics of your case..

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”

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• Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel (calblogofappeal.com)
• Are Too Many Defendants Pressured Into Pleading Guilty? (blogs.wsj.com)

Seal of the United States District Court for the First Circuit

It appears her asylum claim was rejected not because of a lack of evidence, but because the judge did not consider her testimony credible. The reason? When she was pulled from the trunk of a car attempting to cross the border from Mexico into California, she did not allege religious persecution to the officers who initially interrogated her. The allegation of religious persecution was not made until later, when she sought to fight deportation.

I’ve written an article summarizing the case on Examiner.com, which can be read here. To read the court’s ruling in its entirety, click here.

This case in some ways serves as another example of what Professor James Duane discussed in a video posted in a recent blog post on this site, where he advises people to never talk to the police. To see the article and video, click here.

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”

One of the most amazing aspects of the practice of criminal defense law is the number of people who would never be arrested if they simply exercised their right to remain silent.  Even after being advised of their Miranda warnings and knowing they don’t have to say anything, many people still cannot resist running their mouths.

You can’t talk your way out of an arrest.  If the police are planning to arrest you, they are going to arrest you no matter what you say.  However, there are many times where people would never be arrested if they would simply keep their mouths shut.  In fact, if the police are trying to get a statement from you, it often means that they don’t have enough evidence to arrest you without your statement.

Even worse, an innocent person will often say things that cause him or her to suffer from a false arrest that would have never happened if he or she hadn’t spoken to the police  Being innocent of a crime does not stop a person from being arrested, or even convicted, of a crime.   Faulty memories (of both defendants and police officers), the natural tendency of the mind to fill in missing facts with assumptions, the desire of people to appear cooperative, the possibility that the police possess evidence that contradicts the person’s story (even if the police evidence is inaccurate), or anything that could take a person’s truthful statement and make it appear to contain falsehoods could result in the conviction of an innocent person.

Pages and pages could be written on this subject, and I will post articles on this subject in the future.  For now, I am going to sit back and let law professor (and former criminal defense lawyer) James Duane, along with Officer George Bruch, do the talking in this fantastic video lecture entitled “Don’t talk to the police.”  Every person in America should watch this video, and follow the professor’s advice.  The video is here:  

Regardless of whether you are guilty or innocent, listen to the professor and keep your mouth shut.

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”

Many people are familiar with using Rule 32 of the Alabama Rules of Criminal Procedure to attempt to obtain a new jury trial in Alabama after being convicted in a criminal trial.  Not as many people are aware that, in some limited circumstances, Rule 32 may also be used to set aside a conviction after a guilty plea.  This is the first of a series of articles addressing ways to use Rule 32 of the Alabama Rules of Criminal Procedure to set aside a felony conviction. Links to cases cited in this article are provided through  Google Scholar.  Rule 32 of the Alabama Rules of Criminal Procedure should not be confused with Rule 32 of the Alabama Rules of Judicial Administration, which deals with the calculation of child support.

The first way to try to set aside a guilty plea under Rule 32 is through a claim of “ineffective assistance of counsel.”  Alabama law provides that claims of ineffective assistance of counsel may be presented for the first time in a timely filed Rule 32 petition.  Murray v. State, 922 So. 2d 961 (Ala. Crim. App. 2005). Even if a person specifically waived the right to file an appeal or a post-judgment petition (a Rule 32 petition) as a condition of his or her guilty plea, that waiver is not valid or enforceable against a claim that the person received ineffective assistance of counsel.  Boglin v. State, 840 So. 2d 926 (Ala. Crim. App. 2002).  A person cannot waive the right to receive effective assistance of counsel.  Whitman v. State, 903 So. 2d 152 (Ala. Crim. App. 2004), Whitehead v. State, 955 So. 2d 448 (Ala. Crim.  App.  2006).

In the Boglin case, the Alabama Court of Criminal Appeals stated:

“We hold that although a waiver of the right to seek postconviction relief given as part of a plea agreement is generally enforceable, it cannot operate to preclude a defendant from filing a Rule 32 petition challenging the voluntariness of the guilty plea, the voluntariness of the waiver, or counsel’s effectiveness. Therefore, the circuit court erred in finding that Boglin’s claims that his guilty plea was involuntary, that his waiver of his right to appeal and to collaterally attack his conviction was involuntary, and that his trial counsel was ineffective were waived by the plea agreement.”

To prevail on a claim of ineffective assistance of counsel, the defendant must show that his trial counsel’s performance was deficient and that he was prejudiced by the deficient performance.  Strickland v. Washington,  466 U.S. 668 (1984); Ex parte Lawley, 512 So. 2d 1370 (Ala. 1987).  “In the context of a guilty-plea proceeding, a petitioner must show that, but for counsel’s errors, the petitioner would not have pleaded guilty but would have insisted on proceeding to trial.”  Carson v. State, ___ So. 3d ___ (Ala. Crim. App. 2008), citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).

At the pleading stage, a defendant is not required to prove his claims by a preponderance of the evidence.  Rather, he must merely provide a “clear and specific statement of the grounds upon which relief is sought.” Rule 32.6(b), Ala. R. Crim. Proc.; Ford v. State, 831 So. 2d 641 (Ala. Crim. App. 2001).

A defense commonly raised by the State is that the defendant stated he was satisfied with his attorney’s performance when entering the guilty plea.  However, statements indicating satisfaction with trial counsel at the time of his plea do not preclude a person from presenting a Rule 32 challenge to the conviction because any prior subjective satisfaction is irrelevant in a Strickland claim.  “Counsel’s performance is viewed objectively; therefore, a defendant’s subjective satisfaction with counsel’s performance is irrelevant in determining whether counsel was ineffective.”  Harris v. State, 916 So. 2d 627 (Ala. Crim. App. 2005).

Setting aside a conviction after a guilty plea is difficult, but it is not impossible if the person has legitimate grounds for asserting ineffective assistance of counsel.  For a consultation about whether your case can be reopened under Rule 32, please contact our office to discuss the facts of your situation.

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”

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• Are Too Many Defendants Pressured Into Pleading Guilty? (blogs.wsj.com)
• http://www.calblogofappeal.com/2010/01/13/ineffective-assistance-of-counsel-in-advising-waiver-of-right-to-claim-ineffective-assistance-of-counsel/

Alabama, like most states, provides a very specific method for determining the amount of child support to be paid by a noncustodial parent.  While there are situations where the standard formula may not apply, most cases will be controlled by Rule 32 of the Alabama Rules of Judicial Procedure.  Commonly known as “Rule 32 Guidelines,” the Rules of Judicial Procedure provide forms and numbers to use for figuring out how much a person should pay in child support.

(Note that Rule 32 of the Alabama Rules of Judicial Procedure should not be confused with Rule 32 of the Alabama Rules of Criminal Procedure, which will be discussed in other blog posts on this site).

Most people paying child support in Alabama had their child support amount established under the old Rule 32 Guidelines.  However, in 2008 new child support guidelines were enacted, which are to be applied to any petitions filed after January 1, 2009.  If your child support was determined under the old guidelines, it may be worth your time to review the numbers and see how much your child support would change under the new system.  The new child support guidelines can be downloaded at this link: 2009 new child support guidelines.

To calculate child support, the courts start with  CS-42 2008 Rev 7-1-09.  CS-42 is a worksheet for calculating child support in a divorce, custody, or child support case.  Anyone trying to calculate child support in Alabama should download this form and follow it step by step.

After completing preliminary information, Form CS-42 requests the monthly gross income of the plaintiff and of the defendant in Line 1.  It is not based on net income or take-home pay, nor is it based on the income of any new spouses, but solely on the gross income (before taxes and deductions) of the parents.  Although some people receive the same fixed income every month, many people on a weekly pay cycle have monthly fluctuations in income.  In that situation, the courts take the weekly income and multiply i by 52 (the number of weeks in a year), and then divide it by 12 (the number of months in a year) to determine an average monthly income.

While taxes, retirement, and other payroll deductions are not deductible in determining income for child support purposes, Line 1a of Form CS-42 allows a deduction for preexisting child support obligations.  Line 1b allows a deduction for preexisting alimony payments.

After determining the gross income of each party, those sums are added in Line 2 to produce the combined adjusted gross income of the parents.  Line 3 then requires a calculation of the percentage share of income of each party, which is determined by taking the combined adjusted gross income and dividing it by that party’s adjusted gross income.

Line 4 is where a determination is made of the basic child support obligation of BOTH parents, which will later be divided by their percentage of responsibility.  The combined adjusted gross income from Line 2 is applied to the Appendix to Rule 32 of the Alabama Rules of Judicial Procedure, which contains a schedule of the basic child support obligations.  The layout of the schedule is similar in form to the federal tax tables.  The row with the income range that matches the combined adjusted gross income of the parties is matched to the column with the number of children of children involved.  This gives the basic support obligation.  To see this chart, download the 2009 new child support guidelines.

Line 5 asks for the amount being spent in work-related child care costs.  This means child care costs that are incurred to enable the custodial parent to work, not babysitting fees incurred for partying or recreation.  Line 6 asks for the amount being paid for health insurance.  These two sums are added together with the basic child support obligation from Line 4, and on Line 7 the number produced is teh total child support obligation owed by both parties to their child.

To determine the noncustodial parent’s child support obligation to be paid to the custodial parent, the total from Line 7 is multiplied by each parent’s percentage of the combined gross income and that number is entered on Line 8.  After determining this amount, an adjustment is made on Line 9 for whichever parent is providing health insurance for the child.  If the noncustodial parent is paying for the child’s health insurance, then the cost of insurance is subtracted from the monthly support obligation.  If the custodial parent is paying for the health insurance, the cost of insurance is added to the monthly support obligation.  This yields the total monthly child support obligation to be paid by the noncustodial parent on Line 10.

There is a legal presumption that whatever number is calculated in Line 10 for the noncustodial parent is the amount to be set as the child support obligation.  There are some exceptions, but they are rare and usually involve cases with complex finances and high incomes.  In most cases, the the number in Line 10 will be the noncustodial parent’s payment obligation to the custodial parent.

Note: This blog post is a revised version of an article I originally published on Suite101.com before enactment of the new child support guidelines.

Downloads:

2009 new child support guidelines

CS-42 2008 Rev 7-1-09

William L. Pfeifer, Jr.

Alabama State Bar Rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services performed by other attorneys.”

Last week we launched a major revision of our website, www.WilliamPfeifer.com.  The main pages of the old site have been migrated over to the new system, though some of the pages are still having some quirks.  Some resource pages of the old site are still appearing under the old website design, but that will be resolved soon.  Overall, we have made significant progress to the new site’s development.  Making major changes to a website design can be challenging when the work is being squeezed in around a full-time law practice.  However, using the slow but steady approach the work is getting done.  Please bear with us for a few more days while the transition takes place.

Later this week we will be posting some more articles on legal news items, as well as some articles on important issues in Alabama law.  In particular, we will be writing about trying to set aside convictions under Rule 32 of the Alabama Rules of Criminal Procedure.  An issue that sometimes arises in criminal cases is that a defendant is forced to waive the right to file a Rule 32 petition as a condition of his guilty plea.  This causes the defendant to believe that he no longer has the right to file a Rule 32 petition, when that is not necessarily true.  Some issues, like the right to receive effective assistance of counsel and the right to be free of coercion in a guilty plea, cannot be waived.  Watch for the article on this subject that is planned for later this week.

Please be patient as our site is upgraded.  Once the changes are done, it will have all been worth the effort.

William L. Pfeifer, Jr.

Alabama State Bar rules require the following in every attorney advertisement: “No representation is made that the quality of legal services to be performed is greater than the quality of services provided by other attorneys.”

Yesterday I posted an article about the shockingly high rate of sexual abuse of minors committed by staff members of juvenile detention centers.  The overwhelming majority of the cases are incidents of female staff members having sexual contact of various kinds with boys incarcerated in juvenile detention centers.

Today I wrote a follow-up to yesterday’s article and blog post, in which I list the 13 juvenile detention facilities with the highest number of rape or sexual molestation allegations in the government report.  Readers in Alabama will be relieved that none of our facilities made the “worst 13″ list.  However, it is frightening to see statistics showing rates of child sexual abuse in juvenile centers being almost one out of every three kids.

To read about the 13 places your child is most likely to be raped or sexually abused in a juvenile detention center, click here.

The Bureau of Justice Statistics released a report on Thursday indicating a surprisingly high rate of sexual abuse of juvenile inmates.  The new study indicates that the rate of sexual abuse in juvenile detention facilities is far higher than previously reported by either the federal government or the states.

In some facilities, more than 30 percent of the juveniles were victims of some form of sexual abuse.  The overall rate of sexual abuse was 12 percent.  Of the juveniles who had been sexually abused in some way, 95 percent of them said the abuse was committed by female staff members.  Approximately 26,550 juveniles are held in 500 facilities around the country, with 91% of the inmates being boys.

I posted an article about the report on my legal news column on Examiner.com, where you can read more details about the report.  The article also links to a number of news reports on the subject.  A copy of the full government report is also attached to the end of this article.

William L. Pfeifer, Jr.

Special Report: Sexual Victimization in Juvenile Facilities Reported by Youth, 2008-09

Paula Sladewski

Last year I wrote a series of articles for Examiner.com on the murder of Playboy model Jasmine Fiore.  Fiore’s body was found in a trash dumpster burned beyond recognition, and she was identified through her breast implant serial numbers. Her alleged killer, reality tv star Ryan Jenkins, was later found dead in a Canadian motel room.

Today, I learned that another Playboy model suffered a similar fate.  Paula Sladewski, who appeared in the 2003 Playboy video “Playboy: The Ultimate Playmate Search,” was identified as the person found dead in a North Miami trash bin earlier this week.  Her boyfriend, Kevin Klym, was thrown out of a North Miami nightclub in the early hours of Sunday morning after arguing with her, and the burned body was found shortly thereafter.  Klym denies any involvement in her murder, but is being treated as a person of interest.

Paula Sladewski

Fiore and Sladewski are not the only Playboy models who have been murdered over the years, but it is interesting that within the last 6 months two Playboy models were murdered, thrown into dumpsters, and burned beyond recognition.  Setting murder victims on fire seems to be a growing trend in this country.  I don’t know whether it is an attempt to cover up DNA evidence or if it is an act of rage to further desecrate a body.  I’ll leave that analysis to the psychologists.

I have published a short article about Sladewski and her murder on Examiner.com, and I’ll be following the story over the coming days on my legal news column.  You can follow the story on their news site.