logo


Cheshire Parker Schneider
Print This Page

Articles


Age and Criminal Activity

Criminal charges are filed in one of two places—juvenile or adult court. Where you end up depends largely on your age and the severity of the crime you have been accused of committing. In most states, minors under the age of 18 are considered juveniles and are handled according to specific statutes and sentencing requirements that typically include a probation or rehabilitation period designed to turn the accused person’s life around at a young age.

In North Carolina, however, state law currently requires 16- and 17-year-old offenders to be tried as adults, even if they have committed misdemeanors or other minor offenses. Now, legislators and advocates are pushing to change this law and provide better options for minors to serve their punishments and get their lives back on track. Currently, North Carolina and New York are the only states that treat 16 and 17 year olds as adults automatically.

HB 399 – Young Offenders Rehabilitation Act
Support for the proposed measure is coming from all sides, including lawmakers and law enforcement officials who spend a lot of time catching young people in the act of committing minor crimes. New Bern’s former police chief Frank Palombo shared his support in a statement: “If you don’t change this law, those kids out there, bunches of them are going to commit misdemeanors and they’re going to be subject to a lifelong commitment of a stupid mistake they made.”

The bill, HB 399, is known as the Young Offenders Rehabilitation Act. It focuses on providing options more appropriate to the accused person’s age and offense, options that focus less on punishment and more on rehabilitation. The bill would establish a juvenile jurisdiction advisory committee and create a civil citation process for juvenile offenders that includes anyone aged 16 and 17 who have committed misdemeanor crimes. In short, the bill would “raise the age” that separates adult and juvenile misdemeanor offenders from 16 to 18 years old.

Unfortunately, the bill does not seem to be going anywhere this session.

Why We Support Raising the Age
Scientific studies regarding the adolescent brain continue to illuminate how the brains of juveniles (those under 18 years old) differ from adults’ brains. This science is beginning to explain how those physical differences in the brain often lead juveniles to make bad decisions that they will come to regret.

In other words, science shows us that the bad actions of juveniles often do not reflect the character and judgment the young person will possess later in life. For that reason, juveniles should be treated differently by our criminal justice system than adults, and science further suggests that this leeway should be extended to 16 and 17 year olds.

People often deserve a second chance—a chance to show that they have learned from a mistake. Juveniles deserve this second chance even more than adults, though, because they are simply not yet fully-formed humans, and thus their character is not yet formed. They are therefore more likely to change their behavior.

So, rather than automatically treating 16 year olds as adults—often by sending them to prison, training them to be career criminals, and imprinting upon them the label “criminal” for life—we should be working to steer young people away from crime and help them learn from their mistakes and become productive adult citizens.

Raising the age legislation accomplishes these rehabilitative goals by allowing judges to decide whether to treat 16 and 17 year olds as juveniles, while still allowing them to treat certain 16 and 17 year olds as adults depending on the history and characteristics of the accused and the nature of the offense.

At Cheshire, Parker, Schneider, and Bryan, a Raleigh criminal defense law firm, we represent teens and young adults who have been charged with minor or serious crimes and may be facing a trial in adult court.

Juvenile offenders are more likely to commit additional crimes if they have spent time in adult prison, studies show, while rehabilitation and probation centers tend to correct bad behavior and establish better habits. By trying children as adults for even minor crimes, our criminal defense attorneys fear that the state will foster more criminal offenders.

If your child has been charged with a criminal offense of any kind and will be facing a hearing in adult or juvenile court, contact an attorney at Cheshire, Parker, Schneider, and Bryan to discuss your options today.

 

Facing Both State and Federal Court Charges

Many defendants face charges in both federal and state courts. When this happens, complex issues arise involving jail credit, the development of defenses and sentencing, and skilled Raleigh federal criminal defense attorneys can help navigate these issues to protect the accused from pitfalls that can lead to increased sentences or even double punishment.

When a case is charged in state court in North Carolina, it means that the state has brought the charges. Similarly, cases in federal court are brought by the United States Attorney’s Office and the person charged has been accused of breaking a federal law. Charges can be brought at either the state or federal levels or both, depending on the circumstances and the criminal activity involved.

A federal charge is not necessarily more serious than a state charge (although the potential punishments are often greater in federal court), but when a person is charged in both state and federal court, the person often faces complications not present in a normal case. For example, the accused may face a wider variety of charges requiring the development of additional defenses, and the penalties in state and federal court may or may not overlap, meaning that the real possibility exists that the accused may face double punishment for the same offense.

Other complications arise from the different sentencing procedures. Below are a few of the complications that need to be worked out by a criminal defendant and the defense attorney in a case where the accused is charged in both state and federal court.

Custody Issues
The first step to take when facing federal and state charges in a case where the defendant is in jail is to determine which jurisdiction will exercise primary custody. Primary custody determines whether the accused will get credit against any sentence for time served in jail prior to trial or plea. If the accused is first arrested on the state charges, it is unlikely that he or she will received credit for time served in jail to reduce an eventual federal sentence.

When possible, it is important to consult with Raleigh federal criminal defense attorneys early on in a case to try to ensure that any time spent in custody will count towards a sentence in the event of a conviction.

Sentencing Issues
The federal and state sentencing structures differ dramatically, as do the practices in those courts regarding plea bargaining. For example, in state court in North Carolina, the Structured Sentencing provisions control and require that a sentence be within a certain range based on the class of the offense—with Class A felonies requiring life in prison or the death penalty and Class H and I felonies requiring probation or short prison sentences for those with light criminal records.

In federal court, on the other hand, the judge must consider the United States Sentencing Guidelines in fashioning the sentence, but the judge, in most cases, can sentence the defendant to whatever sentence the judge determines is appropriate under the facts up to a maximum set by law (usually 5, 10 or 20 years). Moreover, in state court, the government does not generally conduct a detailed pre-sentence investigation (except in Chatham County where a pilot program is underway).

In federal court, the pre-sentence investigative process is lengthy, detailed and very important for the outcome of the sentencing. It is therefore important to consult with Raleigh federal criminal defense attorneys when faced with possible charges in both state and federal court.

Select the Right Attorney to Represent You in Both Courts
A variety of custody and sentencing issues can crop up when a person has been charged with criminal activity at both the state and federal levels. An attorney who is familiar with both courts can help you prevent pitfalls and can provide a thorough defense in both arenas. At Cheshire, Parker, Schneider & Bryan, our Raleigh federal criminal defense attorneys represent clients in both the state and federal courts and help determine how best to navigate complexities involved in dual jurisdiction cases.

 

Video Sweepstakes on the Radar

With the help of federal officers, the state’s Alcohol Law Enforcement (ALE) teams are leading the charge against video sweepstakes by launching several recent raids on businesses throughout eastern North Carolina. These efforts are aimed at shutting down illegal operations and seizing sweepstakes and other similar machines.

According to Don Connelly, spokesman for the U.S. Attorney, there are ongoing investigations and searches in “multiple locations” throughout the Eastern District of North Carolina, which runs from Granville, Wake, Harnett, Cumberland, and Robeson counties to the coast. And earlier this month, multiple warrants were served at sweepstakes establishments by the federal agents who were assisting the regional team.

It is currently unclear whether charges are forthcoming, but it is known that the federal government has seized millions in assets from businesses using the federal asset forfeiture procedures in its anti-sweepstakes efforts.

What’s the Legal Issue?
Video sweepstakes and video poker players usually purchase an online access card or a phone card to play these games, and with the card, they can gain game time on the sweepstakes machines. These machines offer an opportunity to win cash prizes. Throughout the state, there are many sweepstakes halls, some of which regulate the games with zoning rules and tax assessments that they claim legalizes the practice.

For many years, North Carolina’s Attorney General has been pushing for an end to video poker and video sweepstakes games throughout the state, and he is a vocal supporter of the state laws that ban these machines. Other critics of the video games say that players are paying money to gamble and that the additional products purchased to obtain game time are unnecessary and often unused as a result.

In December of 2012, the North Carolina Supreme Court ruled that a law passed in 2007 banning video sweepstakes games is constitutional and must be enforced. In some counties, law enforcement agencies responded immediately, shutting down gaming centers and confiscating machines, while other counties have been slower to react, leaving the games and machines untouched. However, legal battles continued over various enforcement actions.

Then, in April 2015, the North Carolina Supreme Court declined to review two Court of Appeals opinions upholding the criminal convictions of business owners for violating the anti-sweepstakes law. Law enforcement authorities have interpreted this court action as a green light to begin strongly enforcing the law.

Call an Attorney
As law enforcement officials continue to crack down, business owners offering video sweepstakes, video poker and other gaming activities should be wary. To discuss your case with a Raleigh criminal defense attorney, contact the team at Cheshire, Parker, Schneider, and Bryan for a consultation today.

 

Dividing Your Family Business After a Divorce

A family business can be a great way to balance responsibilities, ensure quality time with your children and keep your family prospering financially. When your business partner is also your life partner it is often easier to handle complications. When the marriage frays the family business is impacted.

Equitable Distribution
The family business is usually marital property or part-marital property. When a couple separates, the marital property is divided in “equitable distribution.” The company presents a challenge since most businesses can’t be divided into two parts.

Buying Out
Most often, one spouse retains the business asset and pays the other spouse for his or her share of the marital portion. The valuation of business ownership can be extraordinarily complex involving appraisals and specialized consultants. It can also be a straightforward determination of book value. Once a determination is made about the company’s marital value, structuring a pay-out occurs. Factors to consider when structuring pay-outs include ability to pay, operating capital, work-in-progress, accounts receivable, cash flow, forecasts, installment agreements, security instruments, offsets by using other marital assets, and many other factors.

Co-Owning
Another option for a divorcing couple is to share the business as joint owners. Written Operating Agreements can be negotiated that specify the role of each spouse along with terms relating to management, oversight, compensation and other financial matters. This option is challenging but some couples do manage to successfully co-manage the family business.

Being the Outsider
A troublesome consequence of a family business and divorce occurs when one spouse becomes unemployed as a result of the marital separation. This fact can occur in small family businesses as well as large complex organizations. Alimony and child support payments are impacted when a spouse is no longer earning a salary or receiving benefits from the family business.

Experienced Advice
Valuing and dividing a family business takes experienced, competent, legal advice from lawyers who have tackled these complex issues before. The family lawyers at Cheshire Parker Schneider & Bryan have the experience and legal know-how that is needed when a family business is involved.

 

North Carolina Court of Appeals

If you have been found guilty in a criminal trial or liable in a civil action, the judge usually imposes a sentence or civil judgment based on the severity of your crime or civil wrong and the laws and penalties associated with that crime or civil wrong. When this happens, you may feel like you are out of options. You may believe that your case was mishandled or the jury wrongly convicted you of a crime you did not commit or held you accountable for a civil wrong you were not responsible for.

But a criminal sentence or civil judgment is not the end of the road for many people, according to Raleigh criminal appeal attorneys. The North Carolina Court of Appeals can give convicted felons who are dissatisfied with their sentence, trial or any other aspect of their due process right to present their cases one last time.

Created in 1967, the North Carolina Court of Appeals is the only court of its kind in the state. The constitutional amendment that instituted the Appellate Court designates it as “an intermediate court of appeals to relieve pressure on the North Carolina Supreme Court.” The 15 members of the appellate court take turns sitting in groups of three to hear cases.

These judges are chosen by statewide elections, and serve for eight years in staggered terms. The Court of Appeals hears all civil appeals, as well as non-capital criminal appeals and direct appeals from administrative groups from the state’s District and Superior Courts.

The Process

In appellate court, the majority of appeals are decided on the basis of briefs that present arguments for why the appellant should get relief and records created in the trial court. Appeals do not conduct a new trial where witnesses testify and a jury makes another decision. Therefore, many criminal appeal attorneys in Raleigh place heavy emphasis on constructing a compelling brief. In order to prepare for an appeal, appellate lawyers need to reconstruct the evidence from the record and present their client’s arguments for relief in a written brief.

Sometimes the Court of Appeals will hear oral arguments from a defendant’s lawyer. In North Carolina, these oral arguments are typically addressed in the Court of Appeals courthouse in Raleigh, although sometimes the court will hold them in a law school or some other appropriate venue. After the oral argument hearing, the panel of 3 judges confers in private and votes on how to decide the case. Their decision is later announced and explained in a written opinion that is sent to the lawyers and published on the Court of Appeals’ website.

Other Duties

The Court of Appeals also hears motions and petitions, including the following:
• Writ of supersedeas – seeking a stay of a lower court’s decision
• Writ of certiorari – seeking review of a lower court decision when a person’s right to appeal has been lost by failure to take timely action and in certain other special circumstances

File Your Appeal

Convicted defendants can file for an appeal if they feel that a mistake has been made at any point in their case, or if they feel they have been unjustly convicted or penalized too harshly. At the Law Offices of Cheshire, Parker, Schneider, and Bryan, we represent convicted persons who have been abused by the system and deserve a second chance in the courtroom.

If your case has been handled improperly, you believe the prosecutor, defense attorney or judge on your case made a mistake, or your rights have been violated at any time during your arrest, the investigation, booking or your trial, contact one of our criminal appeal attorneys today to discuss your options for appeal.

 

Mediate Your Divorce

The process of divorce can be painful, difficult, and far too public in most cases. Most couples could greatly benefit from mediation services, and many divorce mediation attorneys in Raleigh promote this as a first step—or even the only step—to obtaining a resolution.

Many states require couples who have filed for divorce to attend mediation sessions before they go to trial. In North Carolina, couples must try mediation before their child custody and equitable distribution trials can take place. For most couples, mediation may not have been their first thought when filing their lawsuit, but the process can be much easier, less public and more amicable than a trial in court.

What is Mediation?

Mediation is a dispute resolution option that allows a divorcing couple to air out their grievances and concerns and discuss terms for settlement in front of a neutral third party — the mediator. The mediator can be an attorney or other professional who has been trained in dispute resolution and can help the couple work through their issues.

In mediation, the divorcing couple has the power to make decisions, unlike in a courtroom, where the judge determines the arrangements. Mediation also gives couples an opportunity to “tailor make” their arrangements, hopefully with each side being understanding to the other’s needs.

Raleigh divorce mediation attorneys say the process is typically friendlier because the spouses can state their concerns and fears and work with the neutral mediator who assists them in understanding the other spouse’s perspective. Mediators can help couples determine what would be in the best interest of their children and what would be a reasonable financial resolution.

You Still Need a Lawyer

Although mediation is a great alternative to allowing a judge to decide the issues, a mediator cannot offer you and your ex-spouse legal advice. The mediation process works best when combined with the counsel of an who is well-versed in mediation and negotiations and who can provide the legal perspective for separating assets, determining child custody agreements and evaluating alimony and child support proposals.

If you have opted to use mediation, typically, you are responsible for the fees charged by your attorney, as well as the half of the mediator’s fee. This can be a more economical option for some people, as lawsuits require more resources and time investment.

At Cheshire, Parker, Schneider and Bryan, we have attorneys who serve as mediators to assist you in reaching an agreement with your spouse. We also have years of experience representing clients in the mediation process. Our divorce mediation lawyers urge clients to try mediation as a dispute resolution alternative. Mediation can help couples reach a compromise without dragging their families through a drawn-out, costly and, potentially, ugly court process. Please contact us if you are in need of a mediator or a divorce mediation attorney to discuss your options for alternative dispute resolutions.

 

White Collar Crimes: Hacking

News reports have been filled with stories of hacking and internet security breaches in recent months, from the leak of several celebrities’ nude photos after a massive-scale iCloud security breach to the hacking attack on Sony Pictures that unleashed a torrent of secret emails and messages from high-level executives.

Hacking is the newest, most pervasive form of theft.  A hacker can easily access financial records and personal information over the internet to take over bank accounts, assume a person’s identity or leak sensitive information.

Today, we can be online at any time, from almost any location with our phones, desktops, laptops or tablets, and more and more information can be stored and accessed from anywhere. While sharing systems that utilize online storage can be convenient time and money savers, these systems make it easier for non-authorized users to gain access. As more and more people rely on internet storage systems for personal information, hacking crimes reach increasingly new levels, which can lead to serious criminal penalties.

Computer and Internet Fraud

Any instance of breaking into a computer system, regardless of what your intention is, is considered hacking. Most often, hackers have the goal of accessing sensitive information or modifying existing information. Malicious hacking can be any instance of illegally gathering computer data or any information stored on a device.  However, increasingly seemingly innocuous conduct can be viewed as hacking as well.

North Carolina law classifies any instance of unlawful access into a computer with basic intentions—i.e., not with the intent of defrauding, obtaining information, or scheming against the owner of the information—as a Class 1 misdemeanor. If the hacking is done with malicious intent—scheming, defrauding, or stealing information or property valued at more than $1,000—the crime is considered a Class G felony. If the computer is government property, hacking crimes are bumped up to Class F felonies.

In Federal Court, unauthorized access to a computer or interception of an electronic communication can constitute a felony.  There are, however, Federal misdemeanors that cover this conduct as well.

Defending Against Hacking Charges

As hacking becomes more prevalent and more sophisticated, it has become more difficult to prove a person’s involvement without hard evidence. Hackers can use “zombie” networks and remote access to hide their tracks, and in order to make hacking charges stick, Raleigh white collar defense lawyers say law enforcement officials need to find proof that a suspect was using one of these devices or networks at the time the hacking took place.

Because of the types of information that are stored on computers and online, these crimes are taken very seriously. In the course of an investigation, suspects may find their computers and personal devices (phones, iPads, etc.) seized and searched, sometimes without due process on the part of the law enforcement officials. Investigators may be reviewing a suspect’s emails, messages and internet browsing history, which could turn into a violation of the suspect’s rights, especially if no formal charges have been filed.

If you are under investigation for a white collar crime, you need the help of a defense attorney immediately, even if the accusations against you are completely false. At Cheshire, Parker, Schneider and Bryan, we work with clients who have been accused of hacking or other white collar crimes. To get started on your case, contact one of our white collar defense lawyers in Raleigh today.

 

The Stakeholders Chief Justice Martin Left Out

In a Letter to the Editor in today’s Raleigh News & Observer, Joe Cheshire and I note a glaring omission from North Carolina Chief Justice Mark Martin’s recent State of the Judiciary address to the North Carolina General Assembly. “There comes a time when leadership demands subordinating political considerations to do what’s right.” Read more here.

 

College Drinking

In schools across America, college students have been known to spend their weekend nights at parties, sporting events and bars, celebrating the end of a week of courses and internships by sharing a few cold drinks with their friends. Alcohol is a time-honored tradition at many schools, and students enjoy the chance to let off steam and experience life on their own.

As students get older and move into off-campus housing, the popular spots often move farther away from the student’s residence.  And while many campuses offer shuttle services, such services may not always be an option for students hoping to get home after a night out.

Far too often, after a few drinks, students make the decision to drive home, rather than cab or Uber, and many get arrested or into an accident in so doing. What some students may not realize is that being charged with drunk driving at the college level can bring more consequences than simply the penalties outlined in the state’s laws, DWI lawyers in Raleigh say. Students should be aware that their universities and colleges may get involved and a DUI/DWI charge can have a lasting impact on their education and careers.

In addition to possible school sanctions, a DUI/DWI charge will follow you on your school record and may have to be disclosed on internship and job applications. Thus, a DWI could affect your options for graduate school and future employment.  It may even prevent you from obtaining scholarships or other forms of financial aid.

Commuting

Commuter students do not have the luxury of walking from their dorm rooms or apartments to their classes, and they often rely on their own vehicles to get them to school every day. A DWI charge in North Carolina can lead to a license suspension in some situations and can cut down a commuter student’s options for transportation. In these cases, a judge may be willing to consider granting temporary limited driving privileges so the student does not have to miss classes.

Reckless Driving

In some cases, a student may be facing a combination of drunk driving charges and reckless driving charges, which could result in jail time. A student facing sentencing that would involve jail could be forced to miss classes and fall behind as a result. Reducing your charges or the sentence may help you keep on track for graduating on time and obtaining the job and future you have worked so hard for.

At the law offices of Cheshire, Parker, Schneider, and Bryan, our Raleigh DUI lawyers represent student and adult drivers who have been charged with driving under the influence of drugs or alcohol. A DUI/DWI charge does not have be the end of your education or career. To discuss your case and explore your defense options, contact one of our attorneys today.

 

FBI Director Acknowledges Racial Bias of Law Enforcement

James Comey, the Director of the FBI, spoke on the issue of biases of law enforcement (and all Americans) at Georgetown University recently.  His comments are refreshingly candid.  He began by explaining that law enforcement has a legacy of racism.  For example, the nickname “paddy wagon” comes from law enforcement’s bias against Irish immigrants “as drunks, ruffians, and criminals.”  Although “[t]he Irish had tough times,” he continued, “[their experience] little compares to the experience on our soil of black Americans.”

Comey then noted that “[m]uch research points to the widespread existence of unconscious bias.”  He then quoted the Broadway hit, Avenue Q:

Look around an you will find,
No one’s really color blind.
Maybe it’s a fact
We all should face
Everyone makes judgments
Based on race.

His talk then turned to the specific affect of  such “unconscious bias” on law enforcement officers, saying, “something happens to people in law enforcement.  [They] develop different flavors of cynicism . . . , lazy mental shortcuts.  For example, [they come to believe that] criminal suspects routinely lie . . . , and the people [they] charge are overwhelmingly guilty.  That makes it easy for folks in law enforcement to assume that everybody is lying and that no suspect . . . could be innocent.  Easy, but wrong.”

As for race, he recognized that the same type of cynicism develops in police officers who “work in environments where a hugely disproportionate percentage of street crime is committed by young men of color. . . .  After years of police work, officers often can’t help but be influenced[by unconscious bias.]”

He then explicitly acknowledged the developed racial bias of officers working in urban areas, saying, “A mental shortcut becomes almost irresistible . . . . The two young black men on one side of the street look like so many others the officer has locked up.  Two young white men on the other side of the street–even in the same clothes–do not.  The officer does not make the same association about the two white guys . . . , [a]nd that drives different behavior.”

After acknowledging what we’ve all known, he moves on to discuss how he sees law enforcement moving forward despite these “latent biases.”  He says that law enforcement “must . . . [try to know] what it feels like to be a law-abiding young black man walking on the street and encountering law enforcement. . . .  We must resist the lazy shortcuts of cynicism [i.e. the assumption that he is a liar and criminal] and approach him with respect and decency.”  This is obvious, but instructive.  “We must work . . . to really see each other.  Perhaps the reason we struggle as a nation is because we’ve come to see only what we represent, at face value, instead of who we are.  We[, law enforcement,] simply must see the people we serve,” he says.

He concluded,

We have spent the 150 years since Lincoln [ ] making great progress, but along the way treating a whole lot of people of color poorly.  And law enforcement was often part of that poor treatment.  That’s our inheritance as law enforcement and its not all in the distant past.  [Law enforcement] . . . must confront the biases that are inescapable parts of the human condition.  We must speak the truth about our shortcomings as law enforcement, and fight to be better.

***

FBI Director Comey’s speech was refreshing in its honesty.  Recognition is the first step toward reaching a solution.  And for too long, racial bias has been an off limits topic.  The statistics show that black men are discriminated against by the criminal justice system.  Now the top official at the FBI, our nation’s premier investigative agency, has recognized that the racial bias of police officers has been one of the causes of this discrimination.

We certainly have a long way to go.  But this is an important first step.

 

 

 


Follow Us  

Cheshire Parker Schneider, PLLC 133 Fayetteville Street Suite 400 Raleigh, NC 27601 | Phone: (919) 833-3114