Tribe: Puyallup Tribe of the Puyallup Reservation
4.04.260 Rule 11.2 – Alternative resolutions.
(a) Deferred Prosecution, Also Called “Pretrial Diversion.” Deferred prosecution is an alternative to prosecution that diverts certain offenders who believe their charged conduct is the result of, or caused by, alcoholism, drug addiction, or mental health issues into a program of supervision and services administered by the Puyallup Tribe Probation Department (or other Tribal programs).
Deferred prosecution is offered in the sole discretion of the Prosecutor.
To be eligible, a defendant:
(1) Must not have been the subject of a deferred prosecution in a criminal matter before this Court within the last 48 months;
(2) Must not currently be the subject of a deferred prosecution in a criminal matter before this Court; and
(3) Must not have entered a plea of guilty or no contest to or been convicted of a Class A or Class B domestic violence offense in this Court in the last 12 months.
(b) Deferred Prosecution Agreements.
(1) At any time before trial, a Prosecutor and counsel for the defendant, or the defendant when acting pro se, may agree to a deferred prosecution for a specified period of time based on one or more of the following conditions:
(A) That the defendant shall not be convicted of any offense during the specified period of time;
(B) That the defendant shall not engage in specified activities, conduct, and associations bearing a relationship to the conduct upon which the charge against the defendant is based;
(C) That the defendant shall participate in a supervised rehabilitation program, which may include treatment, counseling, training, and education;
(D) That the defendant shall make restitution in a specified manner for harm or loss caused by the offense even though the defendant is not pleading guilty to and has not been convicted of the offense giving rise to the victim’s losses;
(E) Community service; and
(F) Any other reasonable conditions agreed upon by the parties.
(2) Contents of Agreement. All deferred prosecution agreements are subject to approval by the Court. The agreement must be in writing, must be signed by both parties, and must state that once the Court approves the agreement, a stay will go into effect until the agreement is terminated by date or violation of the terms of the agreement which results in the stay of proceedings being lifted; the agreement must also state that the defendant’s right to speedy trial will be stayed. The agreement may include stipulations concerning the admissibility of the police report, specified testimony, or dispositions if the deferred prosecution is revoked. The agreement must be filed with the Court along with a copy of the police report, testimonies, or dispositions, if they are included as stipulations in the agreement.
(3) Violations of Agreement. The prosecution must be deferred for the period specified in the agreement unless there has been a violation of its terms. As an alternative to lifting the stay of proceedings, sanctions may be imposed for a violation of the agreement without revoking the agreement in its entirety, with the consent of the defendant. If the defendant does not consent to sanctions, the stay of proceedings will be lifted and the prosecution resumed. The conditions of the agreement must be monitored by the Probation Department, the Court, or any other department named by the Court in the agreement. The agreement must state which department will be responsible for monitoring the agreement.
(4) Termination of Deferred Prosecution. Whenever the Court has deferred the prosecution and after expiration of the period of deferral and after the defendant’s successful completion of any conditions of deferral, upon motion by the Court, the defendant, or the defendant’s counsel, the Court shall enter an order of dismissal of charges.
(c) Deferred Prosecution Petitions. A person charged with a criminal offense in the Puyallup Tribal Court who believes their charged conduct is the result of, or caused by, alcoholism, drug addiction, or mental health issues may petition the Court to be considered for an order granting them entrance into a deferred prosecution program.
(1) Limitation. Any person who has been the subject of a deferred prosecution in a criminal matter pending before this Court within the last 48 months or who has entered a plea of guilty or no contest to or been convicted of a Class A or Class B domestic violence offense in this Court in the last 12 months shall not be entitled to petition for a deferred prosecution.
(2) Contents and Support of Petition. The petition for deferred prosecution:
(A) Must contain the petitioner’s sworn admission to specifically articulated facts constituting a violation of the Criminal Code, stipulation to the admissibility and sufficiency of the facts contained in the written police report or testing facility report or both, acknowledgment that the Court will not accept a petition for deferred prosecution from a person who sincerely believes that they are innocent of the alleged violation of the Criminal Code or sincerely believes that they do not, in fact, suffer from a problem with drugs or alcohol or both, and the written acknowledgement of the petitioner that they suffer from a problem with alcohol, drugs, or mental health; the admissions and acknowledgments will be automatically admissible in Court in proceedings to grant or revoke the deferred prosecution, but shall not be admissible in any other proceeding unless the deferred prosecution is revoked;
(B) Must be supported by a treatment facility report indicating either “SP-1” (significant problem requiring a one-year treatment program) or “SP-2” (significant problem requiring a two-year treatment program) and proposing a corresponding treatment program; the treatment facility report must be filed with the petition for deferred prosecution and served on the Prosecutor;
(C) Must contain the signed agreement of the petitioner, stating their obligation to comply with all the requirements of the treatment program proposed by the treatment facility report if the deferred prosecution is granted; and
(D) Must contain the specific written acknowledgment of the petitioner that if the deferred prosecution is revoked, the petitioner’s admission to facts under subsection (c)(2)(A) of this section will be automatically admissible and sufficient to support a finding that the petitioner committed a violation of the Criminal Code, and the Court will enter judgment to that effect.
If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petition is inadmissible in any proceeding or trial.
(3) Contents of Treatment Plan. The written treatment plan must be contained in the treatment facility report filed with the petition for deferred prosecution as required in subsection (c)(2)(B) of this section. The following requirements must be contained in the written treatment plan:
(A) Total abstinence from alcohol and all other nonprescribed mind-altering drugs;
(B) Participation in an intensive inpatient or intensive outpatient program in a KCC or a Court approved alcohol or drug treatment program;
(C) Participation in a minimum of two meetings per week of an alcoholism self-help recovery support group or drug self-help recovery support group or both, as determined by the treatment facility, for the duration of the treatment plan;
(D) Participation in an alcoholism self-help recovery support group or drug self-help recovery support group or both, as determined by the treatment facility, from the date of Court approval of the treatment plan to entry into intensive treatment;
(E) Weekly approved outpatient counseling, group or individual, for a minimum of six months following the intensive phase of treatment;
(F) Monthly outpatient contact, group or individual, for the remainder of the deferred prosecution period;
(G) The decision to include the use of prescribed drugs, such as disulfiram, as a condition of treatment, must be reserved to the treatment facility and the petitioner’s physician;
(H) All treatment within the purview of this section must occur within or be approved by the treatment facility or a Court approved alcoholism or drug treatment program;
(I) Signature of the petitioner agreeing to the terms and conditions of the treatment plan;
(J) The promise of the treatment facility to provide the Court and the parties with a statement every three months for the first year, and for two-year programs, every six months for the second year regarding: (i) the petitioner’s cooperation with the treatment plan, and (ii) the petitioner’s progress or failure in treatment. These statements must be made as a declaration by the person who is personally responsible for providing the treatment;
(K) The promise of the treatment facility to immediately report to the Court and parties any noncompliance by the petitioner with the requirements of their treatment ordered under this deferred prosecution program.
(4) Hearing on Petition for Deferred Prosecution.
(A) The petition for deferred prosecution and the treatment center report must be filed with the Court and served on the Prosecutor no less than 14 days prior to the hearing on the petition.
(B) The Court shall not grant a petition without a hearing in open Court attended personally by the petitioner.
(C) Before entering an order for deferred prosecution, the Court shall make specific findings that:
(i) The petitioner has stipulated to facts constituting a violation of the Criminal Code and has stipulated to the admissibility and sufficiency of the facts as contained in the written police report or the testing facility report or both;
(ii) The petitioner has stipulated to the admissibility of these facts in any hearing on the underlying violation held subsequent to revocation of the order granting deferred prosecution, and that in the hearing such stipulated facts would be used to enter a finding that the petitioner did commit the violation;
(iii) The petitioner has acknowledged and waived the right to testify, the right to a speedy trial, the right to call witnesses to testify, the right to cross-examine, the right to present evidence in their defense, and the right to a jury trial; and
(iv) The petitioner’s statements were made knowingly and voluntarily.
Such findings must be included in the order granting deferred prosecution.
(D) If the Court approves the treatment plan and the petitioner agrees to comply with its terms and conditions and agrees to pay the cost, if any, of the treatment, the Court shall make an entrance upon the person’s Court docket showing that the person has been accepted for deferred prosecution. A copy of the treatment plan must be attached to the docket, which must then be removed from the regular Court dockets and filed in a special Court deferred prosecution file.
(E) If the petition is not approved or is withdrawn before approval, evidence pertaining to or resulting from the petitioner’s statements in the petition or from the treatment center report is inadmissible in any trial on the alleged violations, but will be available for use after a determination that a violation was committed in determining an appropriate sanction.
(F) An order granting deferred prosecution must require compliance with the program proposed by the treatment center report for the specified period (one year or two years) during the term of the deferred prosecution.
(5) Revocation of Deferred Prosecution. If a petitioner, who has been accepted for a deferred prosecution, fails or neglects to carry out and fulfill any term or condition or both of the petitioner’s treatment plan or any term or condition or both of the deferred prosecution order, or violates any provision of this section, the treatment facility shall immediately report such breach to the Court, the Prosecutor, and the petitioner or petitioner’s attorney or spokesperson of record, together with its recommendation. The Court upon receiving such a report shall hold a hearing to determine whether the petitioner should be removed from the deferred prosecution program. At the hearing, evidence must be taken of the petitioner’s alleged failure to comply with the treatment plan and the petitioner will have the right to present evidence on their own behalf. The Court shall either order that the petitioner continue on the treatment plan or be removed from deferred prosecution. If removed from deferred prosecution, the Court shall enter judgment based on the sworn admission of facts contained in the petition and any other evidence adduced at the hearing, and the Court shall then lift the stay of the proceedings, and the prosecution will commence.
(6) Order on Successful Completion of Deferred Prosecution. A hearing must be held after the conclusion of the one-year or two-year program. At least 14 days’ notice must be given before the hearing, and it may be noted by either party and scheduled by the Court Clerk. At the conclusion of the hearing, if it appears to the Court that the petitioner satisfactorily complied with the order of deferred prosecution and the treatment plan, the Court shall then dismiss with prejudice the allegations on which the offense was based.
(d) Deferred Judgment. Also called “deferred adjudication,” may occur when a defendant has entered a plea of guilty or no contest. At the discretion of the Judge, the Court will not enter the defendant’s guilty or no contest plea, and instead must require the defendant to satisfy conditions of the deferred judgment, which must be the same or similar to the conditions set forth in subsections (b)(1)(A) through (F) of this section. When the defendant successfully completes all conditions, the Court shall dismiss the charges against the defendant and the defendant is released from further obligation. If the defendant does not successfully complete all conditions of the deferred judgment, the Court shall enter judgment and sentence. [Res. 100418A (04/10/18)]
Read Full Text of Puyallup Tribal Codes 4.04.260