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CLAIR WILLIAM LANE, LTD. One West Elliot, Suite 106 Tempe, AZ 85284 (480) 897-0788 Clair W. Lane clair@cwlane.com State Bar #2805 Attorney for Defendant

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA IN AND FOR THE COUNTY OF PINAL

STATE OF ARIZONA, Plaintiff, vs. MARTIN MCDONALD, Defendant.)

)
)

Case No.: CR201002273

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) DEFENDANT'S MOTION TO DISMISS, ) AND FOR SANCTIONS } (Oral Argument and Evidentiary Hearing ) Requested)
)

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(Assigned to the Honorable Janna Vanderpool}

-------------------------------)
COMES attorney undersigned, NOW, the Defendant, MARTIN MCDONALD, by and through

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and hereby moves this Court to dismiss the charges in this case as to the facts, and accordingly, David Aviles inventories year

for the reason that there is no dispute committed no crime whatsoever reflect that

when he updated "mini

the City of Maricopa's goals" during

to accurately 2008.

the City did receive no crime, Defendant as this Motion

the calendar

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If Aviles committed In addition,

committed

no crime. Pinal County knew that Attorney, the City of

will disclose,

Deputy 2010,

Kristy

Hunt

(hereinafter

"Hunt"), purchased

as early as December "mini goals" in 2008,

Maricopa regarding defense

had in fact the purchase counsel

had received

documentation

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order and payment

method,

misrepresented

to this Court and in

(Lane and Gorman) her possession

of the proof of their purchase

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2008!
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and had failed to provide defense counsel with

a copy of the exonerating

material as mandated under the Arizona Rules of Criminal Procedure 15.1 (8) (8) and as required under Arizona Rules of Professional Conduct! ER 3.8(d). This Motion to Dismiss and for other relief is supported by the attached Memorandum of Points! Authorities and Law.

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RESPECTFULLYSUBMITTED this _3,·A.dday of October! 2011.

LANE, LTD.

air W. Lane o est Elliot! Suite 106 Tempe, AZ 85284 Attorney for Defendant

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JJ

MEMORANDUM This particular Aviles"),

OF POINTS AND AUTHORITIES Mr. David Aviles (hereinafter

case involves allegations that

an employee of the City of Maricopa, conspired illegally with Defendant! inventory records of the City of Maricopa to
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Martin McDonald to falsely "update"

reflect that the City in fact had in its inventory two (2) "drop down basketball hoops

in the calendar year 2008 (these basketball hoops are referred to as either "easy pop UpS", "basketball hoops" (Grand Jury Transcript), Maricopa Purchase Order), or "Bison mini goals
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"clamp on junior goals" (City of

(Shipping Receipt). Nevertheless, we

are talking about the same two (2) items which are small basketball goals that can be

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attached to a full size goal so that they can be either raised or lowered, as the case may be, so that younger players can participate in youth basketball. The allegations in this indictment are that "Aviles", whose job was to keep track of inventory, update inventory, etc, improperly falsified the City of Maricopa's

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inventories to reflect that the City did in fact receive two (2) of these "goals" in the calendar year 2008. These Bison mini goals were ordered from a company known as Sports Supply Group which has numerous subsidiaries, including Tomark, BSN and others. Sports Supply Group is the parent company. However, these particular mini goals are manufactured by an Omaha, Nebraska company known as Bison Industries, and as stated are often given various designations and titles. Before the Grand Jury, Detective Lenz, when asked by "Hunt" regarding the City's ownership of these mini goals in 2008, stated as follows:

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"I know for a fact that BSN had not sold these Easy Pop Ups in 2008/1 (G.J.T., page 78, lines 19-20, Attachment "1/1). During this Court's hearing on July 21, 2011, the question of whether or not the "mini goals" were owned by the City in 2008 became a critical issue. It was at the beginning of the second session that "Hunt" claimed the issue of the mini goals was "just a factual dispute" (see Transcript, page 3, lines 24-25, Attachment "2"). In an attempt to explain to this Court why he was calling Detective Lenz,

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Attorney Dennis Gorman addressed the Court and stated as follows: "THE COURT: The Miranda hearing. MR. GORMAN: Yes. I'm assuming that he's going to testify now that he's aware that Mr. Aviles updated the inventory and that it's accurate. And if that's the case,
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then there shouldn't be any allegations in this nine-count Indictment that they (the updates) are fraudulent or deceitful. " (Transcript, page 4, lines 21-line 1, page 5" Attachment "3"). (Emphasis ours). Interestingly, the Court and Ms. Hunt responded as follows: liTHE COURT: Okay. Let's find out from the State. Do you expect that testimony?" MS. HUNT: No, Your Honor. If that was the testimony, we would have dismissed the case." (Transcript, page 5, lines 2-5, Attachment "4"). Apparently Ms. Hunt was still disputing the fact, in spite of her own personal knowledge and actual written documentation, of whether or not the City of Maricopa purchased and received any Bison mini goals in the calendar year 2008. This Court should understand that in the companion cases there are factual

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disputes or mistaken memories of how the mini goals were ordered, how they were paid for, who paid for them, who thought they paid for them, and when they were actually delivered. However, the undisputed fact that everyone now agrees to be is that the City of Maricopa received two (2) Bison mini goals in the calendar year 2008. During the hearing undersigned counsel agreed with this Court, that if a factual issue existed, unless other grounds exist, then a remand or dismissal was perhaps not appropriate. However, undersigned counsel reminded this Court that if in fact the State admitted that the Bison mini goals in fact arrived in 2008 at any time, then Detective

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Lenz had testified falsely and in error to the Grand Jury and the State simply has no case if in fact the Bison mini goals were purchased or received in 2008. There would

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therefore be no factual issue at all and the Court, as a matter of law, would be
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required to dismiss this case against both defendants. When questioned by the Court as to whether the State was agreeing that the goals arrived in June or July of 2008, "Hunt" stated as follows: "MS. HUNT: Judge, Mr. Lane does this allover the motions. That is not what I said. I said, Mr. Lane provided me with a letter from BSN. I've never talked to them. We've never interviewed them. There has never been confirmation that letter is accurate. And since we have two documents filed in the court that we're alleging are forged, I just don't trust what the Defense gives me. I agree Mr. Lane sent me a letter that says that, but we have not verified it. I did not say I am agreeing to that. I said that IS the information he's given to me." (Transcript, page 9, lines 15 - 24, Attachment "5"). (Emphasis ours). Interestingly, each of the underlined factual statements is a fabrication or false statement. Attached to this Motion is an email exchange {provided to Defendants late in the day on 7/21/11} between "Hunt" and the Supply Sports Group (the parent company of "Hunt" in fact verified with

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BSN and Tomark). On December 16th and 17th of 2010,

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BSN and the City of Maricopa that the two (2) Bison mini goals were in inventory in 2008. The exchange starts with an email from "Hunt" to Sports Supply Group (copied

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to Detective

Lenz) enclosing a copy of the Bison Industries invoice supplied by

undersigned counsel to "Hunt". "Hunt" asked; how it originated and who paid for it. The email exchange then involves a response back to Ms. Hunt later the same day
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from a Ms. Crawford of Sports Supply Group, who provided Ms. Hunt with the City of Maricopa Purchase Order for the mini goals dated 5/29/08, Order dated 5/3108, a Sports Supply Group proof of

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the Sports Supply Group Invoice dated 6!12/08,and

payment. (Emphasis ours).
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Subsequent emails to Sports Supply Group regarding the Bison mini goals questioned whether the mini goals which were listed as "hanq down goals" on the invoices were the same as the "Bison mini goals". The response from Sports Supply Group the next morning to "Hunt" confirmed that the mini goals were the same, are manufactured by Bison Industries, were shipped to the City of Maricopa and paid for by the City of Maricopa in 2008. (See Attachment 1/6"). It is impossible to look at the email chain or review the transcript of the July 21 st hearing and determine anything other than the fact that "Hunt", abetted by Detective

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Lenz, were misleading this Court by not being frank in their disclosures or statements, and were keeping exculpatory evidence from the defendants and this Court in this case. Interestingly, "Hunt" was also trying to coerce offer while hiding the emails from THE LAW The duties of a prosecutor are clear cut, both as to their requirements to produce timely exculpatory information to defense counsel, and also their candor to the Court. The Rules of Criminal Procedure mandate timely disclosure by "Hunt" of: All then existing material or information which tends to mitigate or negate the defendant's guilt as to the
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Aviles" into accepting a plea

Aviles" and Mr. Gorman. (See Attachment "7").

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offense charged, or which would tend to reduce the defendant's punishment therefore." ER 3.8(d), 3.4(A} and Rule 15.1 (b}(8) Arizona Rules of Criminal Procedure. Further, our United States Supreme Court has ruled on numerous of occasions that a due process right to a fair trial mandates that prosecutors disclose information favorable to the Defendants. United States v, Agurs, 427 U.S. 97, 96 S. Ct. 2392 (1976); Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963). In addition, the

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current provisions of Arizona Rules of Professional Conduct, ER 3.8(d), expand this requirement by mandating disclosure not only of the "existence" of favorable evidence, but of the evidence itself. "Hunt" also violated her ethical duty of candor towards this tribunal. ER 3.3(a}( 1) reads as follows: "A lawyer shallnot knowingly make a false statement of material fact or law to a tribunal. "

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Clearly that is exactly what happened here. Undersigned counsel has reread the hearing transcript numerous times and has tried to determine whether or not Ms. Hunt was merely mistaken, had forgotten, or

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what her motive was for the false or misleading statements made to this Court on the afternoon of July 21, 2011. Try as I may, no reason can be found. CONCLUSION As the Court can see, there is no issue of fact in this case and it is undisputed that the City of Maricopa received two (2) Bison mini goals in the calendar year 2008, and that City employee" Aviles" committed no crime whatsoever by properly updating

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the City's inventory to accurately reflect items that were on hand in 2008. The State now reluctantly admits this fact. Unfortunately the State presented just the opposite facts to the Grand Jury, alleging that Aviles falsified documents to show as inventory mini goals that were not on hand in 2008. In addition, the State acknowledges that they received a letter from undersigned

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counsel documenting the fact that the City was shipped Bison mini goals in 2008/ and admitting the fact that the shipping date appeared to be May 2008, not February that witnesses mistakenly assumed. Nothing was ever done to attempt to cover up this discrepancy. However/ this Court should understand that based upon lack of disclosure of this absolutely exonerating and confirming evidence in this particular cause number/ undersigned counsel was required to expend significant hours of legal time on a

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needless search in an attempt to find the "delivery receipt" for the mini goals to the City of Maricopa in 2008/ when in fact "Hunt" and Detective Lenz sat on their hands for approximately seven months/ and in effect wasted a ton of undersigned counsel's time proving a fact they already knew to be true, all in a misguided attempt to coerce a plea from "Aviles" and wrongfully convict at all costs. The practice of law is an honored profession in which both parties/ State and defense alike, must seek the truth. It is not a place for playing qarnes. one-upmanship or deception. Attorneys practicing before our Courts are always held to the highest

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standards for obvious reasons. Those standards were clearly and intentionally violated here. Accordingly, Defendant Martin McDonald would ask as follows:
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1.

That the charges against Defendant, Martin McDonald, in Cause No. CR201002273 be dismissed.

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2.

That this Court consider removing Deputy County Attorney

Kristy Hunt

from further involvement in the prosecution of this case or any other cases involving Defendant Martin McDonald.

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3.

Determine whether or not Deputy County Attorney "Hunt's"

conduct is

required to be referred to other state agencies for further investigation of her obviously intentional disclosure violations and lack of candor.

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air W. Lane On est Elliot, Suite 106 Tempe, AZ 85284 Attorney for Defendant
Original filed this ~ day of October, 2011 with: Clerk of the Court Pinal County Superior Court Copies hand delivered this day of October, 2011 to:

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The Honorable Janna Vanderpool Pinal County Superior Court Kristy Hunt Deputy County Attorney PO Box 887 Florence, Arizona 85232 Attorney for the State

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Attachment" 1"

78

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7

the

court

to basically of the Correct. inventory and
I

say

again

Martin

McDonald

is

innocent A. it. The

charges? It also was had a cover it and of sheet attached to

behind

then that

somebody Word

created it it

a Word

document -- and

on the don't

front the it

document but

indicated was 2008

know

exact said:

verbiage, Updated at

a little found

alarming under Martin

because

inventory his

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McDonald's

doorstep

residence, Q. attached

anonymous. And to that's the what was actually filed with the court

motion? is the in the court. David Aviles admitted products he were motion, that is correct,

A.
which Q. couldn't there A. also that Pop Ups was

That

is what with

filed And
say

then
--

just

to verify, the

that

although say

basketball arrived? --

now,

he couldn't and

when

they

Yeah, and I'm

there's at

a little that that

I think

there's

looking for

as well. BSN had not

I believe sold these Easy

I know in

a fact

2008. David Aviles said that he -- when he didn't he inputted personal

Q.
this

But

information when he

in the

inventory, it? gave it to

have

knowledge

inputted Marty computer

A.
Q.

Correct. And the

him. to the City of

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records

belong

Attachment "2"

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5

PRO THE COURT: and I understand Judge McCaLvilie.

C E E DIN

GS

All right.

Mr. Lane, you are here

that you had quite a morning with

So-we're all here now ready to go on the Motion To Dismiss Mr. Lane. 201001327 raised by Mr. Gorman and joined by State versus Davi~ Aviles and as well as 201001966, all are

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CR201002274, and 201002273,

State versus Martin Jason McDonald. We have Mr. Gorman, Mr. Lane, both codefendants present, the prosecutor, Ms. Hunt, is present

as well and looks like investigator OFFICER LENZ: Lenz.

-- don't remember.

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THE COURT. 15 16 17 18 19 20 21 22 23 24 argument. to Dismiss.

Officer Lenz.

Thank you.

And'we're

ready to proceed with the Motion by Mr. Gorman. It

It was raised in writing

was joined verbally by Mr. Lane and on behalf of his client. And we're ready to proceed with oral argument, it; is that right? as

I understand -testimony?

Are we going to be taking

MR. GORMAN: MS. HUNT:

Your Honor, I assumed testimony. And Your Honor, to me, it's legal there's no legal to testify to. And in It's

As I said in my motion,

recourse for this.

There is nothing

-25 just a factual dispute.
-DANA -D.SI1I-"fH,
.".

That's a jury trial.
(SR, RPR, -GR-ND.

-50566

Attachment "3"

4

1

criminal Grand because on

law,

this

was

actually cause. right

an

Indictment, There's no

so the testimony, the case based

2 3

Jury you

found don't

probable have the

to

dismiss

4
5

factual

dispute. THE MS. COURT: HUNT: evidence, but Right. You can remand could my case, you on can certain due

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7

suppress process dispute. don't you

my

and you

you can't what

dismiss for in my

8 9 10
11

grounds, So I --

dismiss
I

factual motion. any do. expecting to way
I

That's to

said

knowhow can do what

else the

respond. is

I don't asking who you were

see to you

that

Defense Mr.

12

THE testify? MR. THE MR. THE Court to

COURT:

Gorman,

(
'"

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-

14 15 16 17 18 19 20 21 22 23 24 25 to testify in the

GORMAN: COURT: GORMAN: COURT: this

Detective On factual

Lenz. issues? Your that Honor. to allow the

Absolutely, And how is

going

dismiss MR.

case? I believe hearing The we even I'm got a little hint

GORMAN:

voluntariness THE MR. COURT: GORMAN: that that

that

assuming

Miranda I'm

hearing. assuming that Mr. And that Aviles if in that's this he's going the case,

Yes. he's it's be

now and

aware

updated the

inventory then there

accurate. any

shouldn't

allegations

nine-count

DANA D. SMITH, (SR, RPR, (R NO. 50566

5

1

Indictment

that they THE COURT:

are fraudulent Okay. Let's that

or deceitful. find out from the State.

2 3 4

Do you expect MS. HUNT: testimony, we would

testimony? If that the case. was the The-the
2008,

No, Your Honor. have dismissed

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11

Just to give you the background, testimonYls Martin were still it's the inventory wants of was last updated that

July

but

McDonald

us to believe So whatever

the items

ordered

in February

'08.

Mr. Aviles never

did, it1s

not an accurate accurate, because

inventory. the July

We'll
'08

stipulate was Mr. Aviles
I

inventory case. What

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inaccurate did still

to prove doesn't

Mr. McDonald's Martin

(

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make

McDonald

innocent

because

it was already according

-- the

inventory

was already

inaccurate

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to Mr. McDonald. It's complicated. THE COURT: I don't think Mr. Gorman I think is arguing he's arguing

that

it makes

Mr. McDonald

innocent.

it makes

his client MS. HUNT:

innocent. Well, actually, in order to make innocent his of

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22

client part

innocent,

it has to make

Mr. McDonald

of the charges. And no, our stand was false added lS absolutely information, says that it lS because the

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not an update. goals that

There

Mr. Aviles

on there

2008.

As of

DANA D. SMITH,

(SR, RPR, (R NO. 50566

Attachment "4"

5

coo,
1

Indictment

that

they

are fraudulent Okay. Let's that

or deceitful. find out from the State.

2 3 4

THE COURT:

Do you expect MS. testimony, HUNT:

testimony? If that was the the case. The -the
2008,

No, Your Honor. have dismissed

5
6
7

we would Just

to give you the background, was last updated that

testimony Martin were still it's

is the inventory wants of

July

but

8

McDonald

us to believe So whatever

the items

ordered

9
10

in February

'08.

Mr. Aviles never

did, it's

not an accurate accurate, because

inventory. the July

We'll

stipulate was

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12

'08 inventory case.

inaccurate did still it was

to prove doesn't

Mr. McDonald's Martin

What Mr. Aviles because

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make

McDonald

innocent,

already

-- the inventory

was already

inaccurate

according

to Mr. McDonald. It's THE COURT: complicated. I don't think Mr. Gorman
I

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24

is arguing he's arguing

that

it makes his

Mr. McDonald client

innocent.

think

it makes

innocent. Well, actually, in order to make innocent his of

MS. HUNT: client part
of

innocent,

it has to make

Mr. McDonald

the charges. And no, our stand
lS

absolutely

that it is because the

not an update. goals that

There

was

false

information, says

25

Mr. Aviles

added

on there

2008.

As of

DANA D. SMITH,

(SR, RPR, (R NO. 50566

Attachment "5"

9

(

1 2 3 4

about

what

is

known

at

the

time.

THE COURT:
MR. then this is LANE:

Right. If that, Motion ln To factJ is not in dispute,

a correct No.

Dismiss.

5
6 7 8 9 10 11 12 the Jury mini was

MS. HUNT:
MR. goals they that it on LANE:

They in

are

not

disputing Their

anymore in you

that Grand

arrived didn't. they got

'08. now in

position to

They them

acknowledge '08. not to Do in That

verbally case and

destroys facts. on the that July of

this We're record.

is proper them. We

if we're just All want

disputing put you June for them agree or

agreeing

THE COURT:
admitting takes the that the

right. arrived you would Mr.

(

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goals that

'08 out? the

evidence

use

conviction this allover Lane to

MS. HUNT:
motions. provided We've That me

Judge, what from

Lane

does

is not

I said. BSN. I've There

I said, never has

Mr. talked

a letter interviewed that filed just sent

them.

never

them. is the

never

been we have are I

confirmation two documents

letter in

accurate. court what that the that say

And we're

since

alleging gives that, me.

forged, agree have that. not been

I don't Mr. Lane

trust me

Defense says
I

a letter
I

but

we to It's yet.

not
I

verified said --

it.

did

not

am

agreeing given in me.

that's

the we

information -we're

he's not

because

don't

trial

(,-;
DANA D. SMITH, CSR, RPR, CR NO. 50566

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Attachment "7"

14

(

1

So McDonald matters

I'll here

just

affirm

that

we

do

have

the

2 3 4

tomorrow. my recollection. What time do we

Refresh start? Is it

1:30 or 9:00 in the
HUNT: COURT: HUNT: for

morning?

5
6 7 8 9 10 11 12 the from record

MS. THE MS. the

9:00 in the 9:00 in the
Your Mr. Honor, Aviles.

morning. morning, if
I

okay. just put on the

could

plea

THE MS. defendant probation

COURT: HUNT: is to

Yes. It's a Class at
1 misdemeanor.

And get 1

if

convicted prison. expire What several? Yes. my

trial,

he

could a Class

anywhere

I have two was he

it as

(

13

misdemeanor THE clas~ification MS. Judge. is an

and

does

weeks

from

today. with

14
15 16 17 18 19 20 21 22 23 24 25 all, just felonYt Class

COURT: of HUNT: have or

charged

with,

I do have calculator person.

to with

do me

some to

additions, see if this

I don't eight THE and

person COURT.: two

twelve Four

Class

4 felonies, and he's

one been

Class offered

5 one

Class

6 felonies

1 misdemeanor. MS. THE MS. HUNT: COURT: HUNT: of Correct, And any Your Honor. as to sentencing? That's

agreement it's just

I believe probation.

probation.

a term

DANA D. SMITH, (SR, RPR, (R NO. 50566

15

1

THE COURT: MS. HUNT: THE COURT: years and a $4,500

A term Yes. Okay.

of probation?

2
3

Which

could

be up to three fine for a Class 1

4 5 6 7 8 9 10
11

fine, up to a $4,500

misdemeanor. Just to make Mr. Aviles, consequences might felony as well that sure you understand, and that those are the --

that is the offer

of the Class

1 misdemeanor

for a class of each

go over the consequences

of the

clarifications. For a Class 4 felony conviction, aren't I don't here.

12

know

where

my guidelines

are, but they
l

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13 14

MS. HUNT: THE COURT:

I can find them Let's of start

Judge. Class with 6. A Class 6

with

IS' has an absolute
16 17 18 19 20 21 22 23 24 four Class anywhere maximum Class

minimum

.33 years

an absolute That's for each

of two and a presumptive 6 felony and you've For Class between a half been

of one. charged

with

two of them. is years with 5

5, the range year

of sentence

and two and a half And with. charged with there's

a presumptive felony that

of one and a half. you've been charged

one Class

And then you've 4 felonies.

been

three is

--

The range

of sentence

there

anywhere two;

between

one year

and 3.75 with

the presumptive

of

(

25

is that

correct?

DANA D. SMITH,

CSR, RPR, CR NO. 50566

16

(

1
2

MS. HUNT: THE COURT: with serve early 85 percent release.

Two and a half, Two and a half. each of those, you would release,

Your

Honor.

Okay. be required for any those of to

3 4 5 6 7 8 9 10 11 12

you would

before And upon

be eligible

if you violated to the Department

conditions Corrections.

you would T~atls

be sent back the prison

term. for a conviction term of 4 felony. And on any

If you got probation or all of these, probation that term fine also would you would

-- the maximum on the Class

be four years

includes

up to one year

in the County there's

Jail as a a maximum discussed

of probation.

And on any felony, There's

(~

13 14 15 16 17 18 19 20 21 22 23 24

of up to $276,000. you would

-- We haven't or

whether

be sentenced

to concurrent

consecutive

sentences

with probation.

Generally, If these

it would were

be a concurrent alleged guilty times, to have of them then

sentence been

for any or all. found

and the jury

that they were and different which means of to

committed

on different

days

you could sentences or upon

be subject if you went

to stacking,

consecutive Corrections

to the Department

a probation

violation,

if you went

the Department

of Corrections. So I think that really sort of covers ~t if that -- any the

range

of sentence

that

you would

be looking or within

(

25

convicted

by a jury

of all of them

DANA

D. SMITH,

CSR,

RPR,

CR NO. 50566

17

(

1

of

them. Have MS. THE HUNT: COURT: I left No, anything Honor. And with again, the offer appears out, Ms. Hunt?

2
3 4 5 6
7

Your

Okay.

to be And

a Class with

1 misdemeanor the and Class violated to serve

a probation if maximum in you

guarantee. were placed you

also

1 misdemeanor, that, is term the

on probation would Jail. Class be

term the

that County on a

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

required the

six of

months

That's

maximum

incarceration

1 misdemeanor. MR. THE MR. GORMAN: COURT: GORMAN: to Judge, Yes. My understanding in the on that plea is if I might?

that that.

it's

a plea the

a conspiracy the All on

last

time

doing

That's THE

hang-up, Okay. negotiation

conspiracy right. the

plea. I don't know what if he

COURT: for

there pleads

is

room

concept

of

to. But In any event, Ms. Hunt, the offer
lS

open

how

long. MS. HUNT: Two more was an weeks, insisting He to Judge. on has his eight I had no idea. I

I thought had I'm eight no

th~

defendant was plead that

innocence. counts out and of

idea he

there could but

issue. guilty

sure

a misdemeanor discussed.

counts,

was

never

DANA D. SMITH,

(SR, RPR, (R NO. 50566

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