As a criminal defense attorney in Somerset, Pennsylvania, I have appealed many criminal cases to the Pennsylvania Superior Court. In fact, I currently have a DUI case on appeal to the Pennsylvania Supreme Court.
One important appeal issue I have run into many times is the filing or lack of filing a post sentence motion before an appeal. It is imperative to file a post sentence motion within ten (10) days of the sentencing hearing if you plan to take an appeal of your sentence. In fact, if an appeal is taken and the post sentence motion was not filed, the appellate courts will not even consider any request for modification of your sentence. Even if more than ten days has elapsed since the sentencing hearing, the appropriate route is to get post sentence motion rights reinstated before the appeal. If you plan to appeal a criminal sentence please contact my office.
In Pennsylvania, the protection from abuse or PFA act provides a process which can result in the person on the wrong end losing the right to go to their own house, to see their kids, to possess firearms, the list goes on. To make matters worst, this can all take place intitially without you even knowing. For example, say your spouse or your girlfriend/boyfriend goes to legal aid, which provides legal representation for free, and tells them that you hit him or her. Legal aid will draw up a PFA petition and within a couple of hours your significant other will be testifying before a judge. Now regardless of the truth of the testimony, if the judge believes your significant other, possibly say good bye to going to your own house, seeing your own kids, and possessing your own guns for the time being. Concerned yet? As an attorney I sure am, talk about a process that could easily be abused, and one that often is.
Now luckily, that intital PFA Order is temporary and you are entitled to a hearing within ten (10) days of entry of the order. At the hearing your probably now ex-significant other has the burden of proof to establish grounds for a permanent PFA order. If your ex is successful at the hearing, you could lose your right to go to your house, to see your kids, and to possess your firearms for up to three (3) years. As such it is imperative to have a good defense attorney and a solid defense prepared to fight at this hearing. If you have had PFA filed against you please call my office immediately.
A Note on Pennsylvania PFAs and Firearms
PFAs are one of the most common ways I see people losing their firearms rights. As discussed, in Pennsylvania it is relatively simple for a person to get a temporary PFA, which in most cases results in automatic loss of firearms rights. A permanent PFA if entered after the hearing, generally also automatically results in loss of firearms rights. Unfortunately, while Pennsylvania law would allow you to keep your firearms rights if relinquishment of firearms is not ordered by the Judge, conflicting Federal Law (18 U.S.C. 922) in most cases prohibits firearm possession and purchase during the duration of the PFA order.
One issue that often arises in child custody is whether one parent may move their residence with the child. The answer is it depends on whether said move would qualify as a relocation. Pennsylvania custody law defines a relocation as a move that substantially affects the custody rights of the other parent. A parent must get written approval from the other parent, or court approval, before relocating, otherwise the parent moving away risks losing custody rights to their child.
There is no bright line rule as to what is a relocation, it depends on the circumstances. For example, if the parents live in the city, and one parent moves five miles away out of the city outside where public transportation goes, and the other parent relies on public transportation to get the children from the other parent, this would probably be found to be a relocation. Alternatively, say the parents live in a rural area like myself, and both parents have a vehicle, a five mile move by one of the parents probably would not be a relocation.
The custody relocation law applies regardless if a custody case has been filed. Therefore, it imperative that if you are a parent and considering moving away, or moving your residence away from the other parent, it is imperative you seek legal counsel first to avoid losing your right to see your children.
The most misleading law I have run across in my career is that of the definition of "Crime punishable by imprisonment exceeding one year" under the Pennsylvania Uniform Firearms Act.
If one was to look at the Pennsylvania law that governs whom may not possess a license to carry a firearm in the state of Pennsylvania, they would discover a blanket restriction against anyone “charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year" from obtaining a license to carry a firearm. (See 18 Pa.C.S.A. § 6109, “Licenses”)
Almost identical language appears in the Federal Crimes Code which provides that “[i]t shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year" to possess a firearm. (See 18 U.S.C. § 922(n)).
In Pennsylvania, a misdemeanor of of the second degree is punishable by imprisonment for up to two (2) years. Examples of misdemeanors of the second degree include Recklessly Endangering Another Person, and certain types of DUI offenses.
Therefore, from a review of Pennsylvania and Federal Law, if one is currently charged with or been convicted of a Pennsylvania Misdemeanor of the Second Degree they cannot buy or possess a gun, or have a license to carry a gun, right? Well, not exactly...
Here is where the confusion in the law comes into play. The definitions section of the Pennsylvania Uniform Firearms Act reads as follows: "Crime punishable by imprisonment exceeding one year." The term does not include any of the following: . . . (2) State offenses classified as misdemeanors and punishable by a term of imprisonment not to exceed two years." (See 18 Pa.C.S.A. § 6102)
Likewise, the Federal Crimes Code's definitions section states that “The term “crime punishable by imprisonment for a term exceeding one year” does not include— . . . (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less." (See 18 U.S.C. 921(20)).
With these definitions in mind, a Pennsylvania misdemeanor of the second degree (punishable by up to two years in prison), would not bar someone from owning a firearm under the blanket restriction pertaining to crimes punishable by up to one year. This contradiction in the law has led to many individuals being charged with lying on a firearms form when purchasing a firearm unjustly, and has led to confusion in law enforcement, the courts, and in defense attorneys in Pennsylvania.
In fact, I currently have motion before the Court of Common Pleas of Somerset County, in which this very law and subsection is at issue.
It should be noted though that Pennsylvania and Federal Law in the realm of firearms and crimes is EXTREMELY technical, and there are many misdemeanor level offenses in Pennsylvania, including many Misdemeanors of the Second Degree that would make one ineligible to buy, own, or possess a firearm and/or a license to carry a firearm in Pennsylvania. In fact, almost all drug offenses in Pennsylvania, regardless of their grading, result in loss of the offender's firearm rights. There is also a list of enumerated offenses, regardless of grading, which result in loss of the offender's firearm rights. Also if one is on probation, they cannot possess a weapon, regardless of the offense. Therefore, it is imperative that anyone who is unsure if a prior offense, even a DUI, would bar them from buying a firearm, or obtaining a license to carry a firearm, should consult with an experienced criminal defense attorney BEFORE going to the gun store or applying for the license, to avoid answering a question wrong on the forms and being charged with lying on a firearms form which is itself a felony.
Today a substantial change in DUI law took effect in Pennsylvania. For the first time in history, a person can be charged with a Felony for driving under the influence in Pennsylvania. Under the new law, any person who is charged with a DUI and has three or more DUI offenses within the past ten years will now be charged with a Felony of the third degree. Also, third time DUI offenders under certain circumstances, such as a minor being present in the vehicle, will also be charged with a Felony of the third degree. A felony of the third degree is punishable by up to seven (7) years in prison and a $10,000.00 fine. DUIs in Pennsylvania, even certain types of first offenses, continue to carry mandatory jail/prison time under the new law. As such seeking counsel immediately when charged with any type of DUI is imperative.
Commonwealth v. Olson, Supreme Court Grants Appeal
Recently I had a case certified for appeal to the Pennsylvania Supreme Court. It will be a landmark case in Pennsylvania for DUI law. The Pennsylvania Supreme Court will be applying Birchfield v. North Dakota, a landmark United States Supreme Court case regarding DUI traffic stops and blood testing. The case will directly impact the way DUI’s are prosecuted in the state of Pennsylvania. I represent Mr. Olson, the Defendant in the case on appeal Commonwealth v. Olson. For more information about the case visit the following link: https://paablog.com/commonwealth-v-olson-allocatur-grant/.