On April 10, 2019, Attorney Leake argued before the Pennsylvania Supreme Court. The argument was televised on PCN and the entire argument can be viewed through the PCN app. The case is titled Commonwealth v. Olson. Attorney Leake represents Mr. Olson who was found guilty of a DUI in the Court of Common Pleas of Somerset County.

Attorney Leake appealed the case the whole way to the Pennsylvania Supreme Court. Far less than 1% of cases are even granted review before the Supreme Court. Attorney Leake’s case represents one of the first cases involving a DUI to ever be heard by the Pennsylvania Supreme Court in history.

If the case is not decided in his client’s favor, Attorney Leake plans to ask for review by the United States Supreme Court.

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.

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.