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REVERSAL

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This question goes to one of the merits to my claims:

in a state or federal criminal case defendant's record is silent where no evidence has been presented indicating that court admonished the defendant of his constitutional rights: nor any record indicating that the defendant [X] waived "each" of his constitutional rights

Is it enough to require reversal of conviction? And what’s the difference between vacating a judgment and reversing a judgment? AA

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What do you mean by "the defendant's record is silent"? The court file would contain the minute orders reflecting what happened at each court appearance. If the defendant pled the charges, he can't appeal that conviction. If he was convicted by a jury at trial, he can appeal. Only appellate courts "reverse" convictions.

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What do you mean by "the defendant's record is silent"? The court file would contain the minute orders reflecting what happened at each court appearance. If the defendant pled the charges, he can't appeal that conviction. If he was convicted by a jury at trial, he can appeal. Only appellate courts "reverse" convictions.

What I mean by a silent record is from the point of arraignment where the charges were read and a plea of not guilty and demand for trial was made in this case and the change of plea and sentencing hearing there is (a void) no minute order that explicitly shows that I waived "each" of my state and federal constitutional rights. This would be one of the grounds I will be seeking reversal at the appellate level.

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The minute order from the arraignment would reflect that you were advised of the charges and your constitutional rights. It's a box that's checked on the forms in most courts. A felony arraignment is also recorded either by a voice recording system or by a court reporter who would have the actual transcript of the proceedings. The same for the entry of the plea and sentencing. the recordings or reporter transcripts aren't in the court file unless the DA, court, or defendant specifically request they be transcribed and pay for it. It's not required that you "specifically" acknowledge "each and every right" at the arraignment. It's only required that you be advised and indicate you understand. I gather you pled to a charge which now stands in the preverbial way of you trying to file your civil rights action....

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Isn’t there a difference between being advised of the constitutional rights at arraignment (particularly when you invoked them) and actual waiver those rights (when you negotiated a plea arraignment) which must be initialed in “each” box that’s on the change of plea form before accepting the guilty plea. And yes this one of the many grounds for my appeal.

Allegedly there is no tape no is there any waiver of [e]ach of constitutional rights? Do I have sufficent grounds for reversal at least to call an evudentiary hearing?

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You misunderstand the system. While it's impossible to say exactly what the court can do because you once again have chosen to be very vague and not mention whether this was a federal or state conviction and if it was a state conviction, what state, some general comments are possible. In general, when you enter a plea of guilty, all that the court must do is satisfy itself that (1) you are making the plea voluntarily and that (2) you have been advised by your attorney of the consequences of your plea and understand them. It does not have to get from you a waiver of your whole universe of legal rights. At the hearing where you enter your guilty plea, usually there is a standard set of questions that the judge asks the defendant which are meant to get the responses needed from the defendant that are necessary for the court to be satisfied those two conditions are met. It often does not take all that long, and the hearing is recorded either by court reporter or audio.

If there is a failure by the court to get the information to show that the plea was knowingly and voluntarily made, there is only a limited time in which the defendant has to seek to appeal to get the plea set aside.

You really ought to see an attorney for help with this. You get one shot at it, and if you fail, it's over. As GuessAgain stated, these are not easy to do and are often not successful even with the help of counsel. It is very hard to get a plea set aside once the plea has been made.

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What I am asking is that if neither the minutes nor the audio were produced when the motion/petition to set aside the plea was denied, is it grounds for relief at the appellate level.

The reason why I ask is because neither the reporters notes nor an audio was produced,

Question: would the same audio taken at arraignment be used at the next (change of plea and sentencing) hearing?

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"defendant's record is silent"

It's not clear what "defendant's record" means.

"no evidence has been presented"

Presented by whom?

"Is it enough to require reversal of conviction?"

I'm not sure what "it" is in this sentence, but whether a court's failure to "admonish[] the defendant of his constitutional rights" is grounds for a reversal of a conviction obviously depends on the context and an awful lot of detail not present in your post.

"And what’s the difference between vacating a judgment and reversing a judgment?"

"Reversal" usually refers to a decision rendered by an appellate court. "Vacating" may mean a number of things depending on the law of the unidentified jurisdiction where this case took place and the context.

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I am probably not phrasing my questions correctly enough. When there is no evidence whatsoever, indicating that the defendant waived his constitutional rights prior to pleading guilty, much less waived THEM knowingly and intelligently waived. Would an appellate court "reverse" based on a silent record.

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No. First, you didn't say if you were represented by counsel. If you were, it's presumed they advised you if the court didn't. If you weren't represented by counsel, then there's clear evidence in the minute order of the arraignment that you were advised of your rights and waived them. Second, YOU CAN'T APPEAL A GUILTY PLEA. The validity can only be challenged by a collateral attack via a writ. There are time limits to filing a writ and you didn't say how long ago this occurred, whether it was a felony or misdemenor, nor whether or not you are still on probation or parole. Third, the defendant would to aver that they were not advised of their rights, did not waive them and that the outcome of the case would have been different. Otherwise, it's harmless error and you lose.

FACTS make a difference. If you don't want to provide any useful information and continue to play word games, I'm done. You can take what you have to a local attorney and let them review it an advise you.

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"What I am asking is that if neither the minutes nor the audio were

produced when the motion/petition to set aside the plea was denied, is

it grounds for relief at the appellate level.

The reason why I ask is because neither the reporters notes nor an

audio was produced."

Your passive sentences make questions a lot more vague than they need to be. Who failed to produce the transcript of the plea hearing? You are making the motion, so it's your job to come up with it and show that the requirements were not met. It is not the state's job to get that.

"Question: would the same audio taken at arraignment be used at the next

(change of plea and sentencing) hearing?"

I don't understand the significance of this. Why would the transcript of the arraignment hearing be needed at the hearing where the plea was entered?

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GuessAgain you stated that FACTS make a difference, what type of useful information do you need because I am not playing word games might be overally cautious but definitely not playing word games with you.

Here is some material facts;

1. My plea was induced by a promise

which was incorporated into the record and consummated into the rendition of judgment:

2. Promise was later breached:

3. Record was purged of the tape:

By purging record of the tape it destroyed any evidence that waivers were explicitly knowingky and voluntarily. This record reflects that no waiver’s of rights were taken on the required form where initials were required to be: there is a grocery list of more material facts present in this case. . .

What is the type of writ are you talking about? habeas corpus or error coram nobis? The reason I ask is because I am no longer in government custody? And Yes I not only averred that the outcome of the proceedings would have been different but provided proof that in fact the proceedings were leading to a different path had I not negotiated the plea.

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I ask for specific information and you ignore it-that's playing games to me. I asked if you were represented by counsel, if the conviction was for a felony or misdemeanor and whether or not you are still on probation or parole.

There's no requirement that there be a written plea form provided or completed. By acknowledging that there was a recording, and then arguing that the purging eliminates any evidence you were properly advised, leads me to the conclusion that you were properly advised and you know you were . Even anonymously, I will not participate or assist in any effort to perpetrate a fraud on the court. As to any "promise," laws change and collateral consequences of convictions can be effected without the defendant being entitled to attack the conviction years later.

If you want specific legal advice, you're gonna have to pay for it. Open up the yellow pages and consult a local attorney.

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I must have overlooked or didn’t see the specific questions, you asked whether: was I represented by counsel answer is YES, you asked whether the conviction was a misdemeanor that answer is YES, you further asked whether was I on probation the answer is NO probation terminated long ago.

As to the "promise," so your saying that the government can make any promise whatsoever and not be bound simply by claiming a change of law, wouldn't that defeat the entire purpose of negotiating an arrangement to conclude the matter by the parties agreement, what your saying is like selling a car then years later saying that the contract is void and null because the price of the car went up and selling found a buyer that has afford more for it.

If what your saying is true it’s simply a bad message it will be sending, future defendants and the public should be extremely wary of negotiating or entering into contracts with the government because where their allowed to change positions the general public is not and without checks and balances its win, win for the government and lose, lose for the opposite party. . .CHAOS. .

My circumstance prevents me from retaining counsel, so I must use all the tools I a have at my reach.

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If your no longer on probation or parol and this "promise" wasn't directly related to immigration consequences, it's generally too late to pursue any collateral attack on the conviction at this point in time. Laws do change and as result, consequences of a conviction change from what was the case at the time. For example, someone who pled to a robbery in 1977 was not advised and had no way of knowing that when they commit a petty theft offense in 2009, that prior robbery would not only be used to elevate the petty theft to a felony but would also be used as a strike offense, preclude him from getting probation vs. prison and double that time in prison he would now have to serve. Likewise, a guy that committed and pled to a DUI in 2002 was told that it would serve as a prior offense for the next 7 years. Well, the law changed and it's now a prior for 10 years or until 2012. Neither of those situations makes the original plea and conviction attackable. Lastly, you did get to sit on stuff for years and years and then decide you want to change the decision you made way back when. The law favors finality and your conviction is and has been final.

y reach.

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So your saying that if this “promise” does directly relate to immigration consequences there is ample grounds to sustain a collateral attack upon the entire conviction because of the collateral consequences which was suffered.

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No, I'm not saying that. The law regarding giving immigration advisements and the immigration laws themselves have changed. The court and/or counsel is supposed to advise a defendant at the time of entry of the plea of existing immigration consequences if they apply to that person. If you're a US citizen, it's a non-issue. A non-citizen who was not advised at all, depending on how long ago the plea occurred, may be able to raise the issue. OTOH, if he was told there was nothing to worry about regarding immigration and the conviction under the immigration laws that existed at the time of the entry of the plea resulted in deportation proceedings, then the defendant can try to have the judgment set aside.

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Now are your speaking of what is known as statutory motion to vacate/set aside a judgment? and what does “OTOH” mean. Wouldn’t the same rules for waiver of constitutional rights apply to advisement of the special consequence to non-citizens.

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..."and

what does 'OTOH' mean."

That's a common internet shorthand for "on the other hand."

"Wouldn’t the same rules for waiver of

constitutional rights apply to advisement of the special consequence to

non-citizens."

The advisement of immigration consequences only matters to non-citizens. If U.S. citizens are not advised of the immigration consequences of the plea, there is no harm to the defendant because he or she, as a citizen, is not subject to those consequences.

Because the law provides that generally you must appeal any plea or conviction within a short period of time, courts and other government agencies will delete some records after a period of time because it is no longer needed. Thus, in most cases, you cannot succeed years later by complaining that the court didn't do the right thing at the court hearing and point to the lack of the transcript to back you up. If the time to appeal or file a habeaus corpus writ has expired, you are probably stuck with the conviction now. Again, it would be a good idea for you to have an attorney assisting you with trying to get the plea set aside. If you try (assuming there is some avenue open to you at this point) and fail, it'll be over and you won't get to try it again.

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Thanks for the meaning of OTOH but I figured it out what OTOH meant after I asked the question, would it help if you point out that that there is a high likelihood that a copy of the proceedings still in fact exist? And the court ignored or overlooked this material fact.

Again I am not ignoring your wise suggestion but my circumstances inhibits my ability from having my case fairly reviewed.

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I did not look to back up my claims because of the lack of tapes/transcripts on the contrary I was forced to look beyond the “tapes/transcripts” and decipher the proceedings which eventually exposed deficiencies underlying conviction.

Fact of the matter is the circumstances presented forced me to “push” forward on the lack of record but I would be more than ecstatic if the “tapes/transcripts” would simply reappear so my claims wouldn't inhibited and bound due to the lack of record and can be reviewed accordingly. . . .

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