So, the local magistrate reminded me today about a case where the Alaska Supreme Court got it wrong. In Alaska Board of Nursing v. Platt 169 P3d 595 (Alaska 2007), the Supreme Court gutted the idea of a suspended imposition of sentence. Alaska Statute 12.55.085 authorizes the superior court to suspend the imposition of a sentence and thereafter set aside a conviction if the defendant successfully completes a probationary period. It is not truly expunged but it was the best we had. The Court allowed the Board of Nursing to use the prior set aside convictions against her and refused to allow her to become a nurse. The question of whether or not she should have been a nurse is not the question. The question is 'what is the value of an SIS in Alaska'? The answer is 'not much'. It may take a defendant out of the presumptive sentencing scheme (which I can explain if people want) but Platt allows the collateral consequences of the conviction to remain. So, now I find it hard to recommend this 'deal'. The downside to an SIS is that the defendant is not sentenced. So, in theory, their exposure may be greater if they screw up. Let me explain. Let's say I can resolve a felony for 24 months with 20 months suspended OR get an SIS. The SIS would allow the fact of the felony conviction to be set aside if the client is sucessful on probation. But if he is not, the Court, depending on the facts, may be free to impose all of the possible 5 years on a C felony. It is a little more technical than that (with the "Austin" Rule and aggravators and mitigators) but I won't bore you with that. The point is the Court in Platt had two ways to go. And they chose the way that led to less freedom. I always hate that. I hope they do the right thing when Kadee's PFD appeal gets there.

Comments

Anonymous said…
"Her victims
were older persons who had befriended Platt, brought her into
their homes, and were vulnerable to her actions. She was given a
suspended imposition of sentence, requiring her to serve six
months in jail and be on probation for five years. While on
probation, Platt was convicted of misdemeanor thefts and was
required to serve additional time in jail, and her probation was
extended. The board relied heavily on these facts particularly
that Platt repeatedly preyed on older, vulnerable persons who had
trusted her to deny Platts application.
The position for which Platt sought certification would
have put her into frequent contact with persons who, by reason of
their medical condition, left them extremely vulnerable to their
caregivers. As the hearing officer noted, many patients under
the care of certified nurse aides are vulnerable and dependent.
The Board of Nursing, attaching more significance to the specific
facts underlying Platts convictions than her rehabilitative
efforts following her convictions, placed particular weight on
[Platts] serious and repeated criminal conduct and the close
relationship between the victims and [Platt]. Although
reasonable minds may disagree with the correctness of the boards
reliance on Platts criminal history in light of evidence
suggesting that Platt had turned her life around, the boards
decision clearly is supported by substantial evidence and is
therefore affirmed.36"

I do not think they got it wrong. The greater concern for harm to the most vunerable of society by someone that took a 40 hr class to be a nurses aide is what concerned the court. Thefts, assaults, drug convictions all are fare game to exlude a nursing aide from being the most available critical care worker person in an home or hospital setting. Hell, even with the SIS she can't get in to Canada to go to a hockey match for the day.
Ummmm....I specifically said that whether she SHOULD have been the nurse was not the issue. The issue is whether the SIS has any value. Certainly, in your mind it does not. Apparently rehabilitation and redemption are not possible for you. How sad.
Dan said…
Platt was a fool to take her case up to the Supremes. Her fact pattern (as Anonymous sets forth) were really egregious and the nursing board knew it. I think for the average first time youthful felony offender sentenced on a simple drug possession or credit card fraud/theft Platt decision doesn't hurt them at all. Platt's case was fairly unique and it was a poor LEGAL decision on her attorney's part to appeal. A more cautioned reasonable approach (presuming her civil attorney had a "come to Jesus" talk with her) to the nursing board's decision would have been better. Of course hindsight is 20-20.

I don't think Platt impacts 99% defendants who receive an SIS (provided they don't screw up while on probation).
Anonymous said…
Are there any statistics out there that support the idea that most defendants get their convictions set aside? How effective is the "SIS" actually? (Pre-trial diversions are proven successful, but any word on "post-conviction diversions"?)
Umm, again, lets look at the broader picture of an SIS. This was NOT about Platt. This IS about whether the Supremes fucked us on the value of an SIS. Focus people.
Anonymous said…
Give your renters an "SIS" and move them back in, they are young, you can see the value of rehabilitation and redemption. The Platt decision was a civil issue just like your rental.
And Dan, she won in the Superior Court on the administrative appeal. So I'm not sure how that was poor advice. And it DOES affect everyone. The collateral consequences are still there. We are expected in Kenai to specifically advise our clients of Platt before they plead to an SIS deal.
Anonymous said…
After years of practicing here, I've come to realize that an SIS is an illusory promise in Alaska. It has no real practical benefit to defendants, other than the narrow non-presumptive example you cite. In my experience, if the DA is willing to consider an SIS, either the defendant is very jury friendly or the case is very weak. In the former instance, the case will eventually be dismissed. In the latter, go to trial. I do not recommend SIS deals to clients.
Dan said…
Ben, you're right as to the Superior Court decision. This is what happens when I don't read the case in a long time.

Anonymous who writes, "in my experience, if the DA is willing to consider an SIS, either the defendant is very jury friendly or the case is very weak." All I have to say is HUH? Now I just practice in a venue that has PIH so this is pretty much what I do EVERY SINGLE DAY - make SIS offers on felonies to resolve cases. I've NEVER HEARD from a defense counsel that an SIS is a bad deal for his/her client. I'd actually say that's malpractice.

For example, steal $2,500 from your employer. It's a two witness case and you've provided a written admission to your employer. You're 35 years-old, six or seven prior misdos but no assault convictions (which would make you SIS ineligible) and I (the DA) offer you a 3 year SIS. You're telling me that YOU AS THIS PERSON'S ATTORNEY would "not recommend SIS deals to client"? That's a PCR just waiting to happen. You've got 5 or more misdos, that's an aggravator for your sentence. You're NEITHER a youthful offender NOR a first-time offender. You're telling me, AS A CRIMINAL DEFENSE ATTORNEY, that you can do better at trial than an SIS? No way. Your client will get a sentence of record after trial given the factors I just listed. An SIS is a great way to get your client out of trouble and probably save the client from a felony tag on their record. Jesus, the collateral consequences of the actual felony conviction are super-harsh. Why wouldn't you advise your clients to try at all costs to avoid such a label?
Anonymous said…
Dan, the SIS still doesn't meaningfully help the client in even that slam dunk situation. They still have felony probation and PTRs and still have all of the practical ramifications of the felony, except the presumptive issue that both Ben and I already acknowledged as legitimate. Practically speaking, they are not in any better situation than if they had the felony conviction. Does anyone believe that a potential employer actually cares whether you had a felony theft or a "felony SIS"? No, they do not.

My point was that a decent defense attorney would turn down any misdo SIS offer and would not advice their client to take your felony SIS offer. I would not give in, keep filing motions, wait for you to go on vacation, wait for you to be in trial, and keep getting continuances and tell that client to wait for a misdo on even your hypo case. (And reality is that while once in a blue moon an iron clad case comes along, 99% of cases are not as strong as the one you propose in your hypo.)

In my experience, I can get my client the misdo in even your extreme example 90% of the time. Only a sucker bites at your felony SIS offer.

And that, my friends, is what SIS's are for...bait for suckers.
Well I am not I entirely disagree Anon. But I would certainly add one thing. We MUST take the SIS to the client. Explain the pro's and con's and the risks and leave it up to them. I mainly wrote this post to remind fellow defense counsel to add Platt to the assessment. Many clients simply don't want to push as hard as you suggested.
Anonymous said…
Agreed. I said I do not "recommend" them to clients. It's unethical not to mention them when offered or to seek them if the client wants one.
I feel the same really. That is why I posted. The SIS is 'dead' (assuming it was ever alive, which I doubt).
cheri said…
Are you considered a felon until your sis is completed?
Yes, you are a felon until after the SIS is completed. And maybe even after. It depends on what jurisdiction is asking the question. Call a lawyer for more specific advice.
Matt said…
Hi I have a question in jan of 2003 i took an sis for criminal mischief in the third degree. did a year of probation everything is good. now nine years later i found my dream job had the interfiew it went extremely well.They had me fill out a backround form I put no on the felony conviction question. I was under the impresion I was not a felon. Did I just blow my chances. This happened In fairbanks AK.

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