Attempted murder conviction vacated
October 2, 2012
The conviction of a 77-year-old Alta Sierra man who was found guilty of attempted murder was overturned by a judge Friday because his public defender did not realize the man faced a potential sentence of 34 years to life — and therefore did not adequately present a plea offer before his trial.
Instead, Morris Hyman will face eight to 12 years after getting a second chance at that plea agreement.
Hyman shot Thomas Demes, his stepson, twice from behind after they argued in the garage of their residence on April 28, 2011.
Hyman was found guilty in April of this year of attempted murder, as well as special allegations of personal use of a firearm, intentional discharge of a firearm and causing great bodily injury.
“Seven years is tolerable. Beyond that, I would die in prison.”
— Morris Hyman
The jury also found him guilty of assault with a firearm, causing bodily injury but dismissed an allegation of premeditation and deliberation.
Prior to the beginning of the trial, then-Deputy District Attorney Kathryn Francis made a plea agreement offer of
12 to 16 years in prison, which Hyman rejected. He also rejected a second offer of eight to 12 years.
Deputy Public Defender Tamara Zuromskis allegedly gave him faulty advice because she did not understand that the enhancements would add 25 years to life to his potential sentence and that her client was not eligible for probation.
Attorney David Alkire, who had been appointed to represent Hyman on the motion to order the prosecution to re-offer a plea agreement, argued in Nevada County Superior Court Friday that Francis had made a third offer, of seven years.
Alkire also argued that Hyman would have accepted the offer of eight to 12 years if he had understood what the maximum potential sentence actually was.
Hyman appeared confused and offered contradictory testimony in court Friday, telling Judge Sean Dowling that he is in the first stages of dementia or Alzheimer's.
He said that he does not expect to live past the age of 85, explaining that was the deciding factor in whether he would accept a plea agreement.
"Seven years is tolerable," he said. "Beyond that, I would die in prison."
Dowling said the evidence was clear that Hyman's attorney did not provide effective representation and ruled that there never was a firm offer of just seven years.
"So I'm looking at the eight- to 12-year offer … Would he have accepted (that)?" Dowling said.
"In my view, if there was a ray of hope that he would get out of prison alive, he would have accepted that ray of hope."
Dowling also found that the court likely would have accepted the plea and vacated Hyman's conviction.
Deputy District Attorney Jenny Ow re-offered the eight- to 12-year agreement, which Hyman accepted.
He is scheduled to return to court Monday to formalize the plea agreement, and sentencing will be set at that time.
"I think the judge did a careful, considered analysis," District Attorney Cliff Newell said after the hearing.
"I don't necessarily agree with the outcome, but he did a good job of listening to both sides."
To contact Staff Writer Liz Kellar, email email@example.com or call (530) 477-4229.
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