Pro Se | Motions for Reconsideration

"can i help and file a motion to reconsider sentencing for my son to the judge because his public defender he cant get a hold of him and my son is in prison and dont have any stamps to mail a letter to the judge that sentence him to teach him a lesson because he know the guy thats blaming my son."

You always have a right to proceed pro se. So you can get your son to file his motion for reconsideration himself. If he has no stamps, you can get it from him at the prison and take it to the court house and file it for him. You can also contact the public defender and let him know that your son wants this filed; do this in writing. If the public defender doesn't do it, your so may be able to file a motion under the post conviction relief act (pcra) to get his appellate rights reinstated. 

Your motion for reconsideration must be in writing and it must be filed within ten days of sentencing. In a previous post on this blog, I suggested that you make actually have 29 days to file your motion for reconsideration. However, that is not the law and the judge can simply deny the motion as untimely. The idea is that you have 30 days to file an appeal. However, within the thirty day period from the sentencing until that notice of appeal deadline, the sentencing court still has jurisdiction over the sentencing order, because until 30 days passes its not a final order. Therefore, you could file a motion for reconsideration nunc pro tunc and the sentencing judge would still have jurisdiction over the case. 

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2255 | Third Circuit Court of Appeals

In the Third Circuit Court of Appeals I believe I have a very good issue under 2255. My lawyer did a really bad job and missed something that would have resulted in a totally different outcome. My new lawyer tells me that I should really do my direct appeal first because if I do the 2255 first, I waive my direct appeal rights. She might be right, but I thought that you can include issues from your 2255 in your direct appeal. My lawyer tells me that is a bad idea. Can you explain why?

On a direct appeal your case goes directly to the third circuit court of appeals. If you do a 2255 your case originates in the trial court for in the district court, like the eastern district of pa. At the district court you can request an evidentiary hearing. If you include any issues  for your 2255 in your direct appeal, you give up your future right to file a 2255 in the district court and you give up your right to request an evidentiary hearing. At the evidentiary hearing many lawyers will admit they made a mistake if they in fact did make a mistake. Without that hearing, that lawyers assertion would not be in the record and would prevent you from winning your 2255.

Don't include it. Do them separately.

Third Circuit Court of Appeals

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Increased Bail | Time Credit

To +Brian Zeiger, my attorney tells me that he wants to have my bail increased so that I get proper time credit on my case. He says its called putting bail on me. How can this be right? It seems like my lawyer is trying to screw me. Can you explain?

There are two scenarios where you can be sitting in jail with no bail on you, where you are actually consider out of custody on your case. If this happens you are not getting any time credit. Having bail put on you or increased is actually the correct thing to do. The two examples of when increasing bail or having bail put on you follow.

First, if you are locked-up on a new case while you are on probation or parole. The bail on the new case is set at zero or ROR, but before you get released your probation officer buts a detainer on you so you sit in jail on the old probation case. You will not get any credit for your new case because there was no bail on you, so you want your lawyer to ask for bail to be put on you for the new case so you get time credit.

Second, you have an open case that you had bail on but you paid the bail and now you are out on the street. While you are out on the street, you pick up a new case. On the new case, your bail is a million dollars and you can't post that much money. You are now in on the second case only because you paid the bail on the first case, so the first case is not holding you in custody. Therefore, you want your lawyer to go and have your bail increased on the first case so you start to get time credit for both case.

Increased Bail | Time Credit

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Bench Warrant from Ten Years Ago

To +Brian Zeiger, I have a bench warrant from a car theft from ten years ago in Philadelphia county. Assuming I turn myself in and the bench warrant is removed, will they still prosecute me and assuming the answer is yes, what is the likelihood that I am convicted of anything?

When you are arrested in Philadelphia, you are immediately finger printed and given a pp number. Your finger prints are logged with your pp number. The case that you got arrested on will be associated with the pp number. When the bench warrant is lifted ten years later, they still have your finger prints. When they go back to court to prosecute you ten years later, they can bring in the finger print card to compare it to your finger prints on the day in court. If the finger prints match, the prosecutor does not need to show identification for you as the person arrested.

Also, at the preliminary hearing, the owner of the car is not necessary. The judge is not going to throw out your case because the DA does haven't the owner of the car at the preliminary hearing after a ten year bench warrant. As long as the finger print match and they have the arresting officer, they will prosecute you.

Thereafter, at trial, they need the owner or last possessor of the car, but if they have all of these people, they can make out a theft case against you. It happens all the time.

Finger Prints

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Murder by Poison

To +Brian Zeiger, I read the lottery winner from Illinois who won $475,000 from a scratch-off died from cyanide poisoning. The police have ruled his death a homicide. How can they rule the death murder by poison without more evidence?

Police and district attorney's office can say whatever they want. The question is what can they prove. They can charge someone with killing Kennedy, it doesn't mean they are going to get a conviction. In the case of the Illinois lottery winner, they haven't CHARGED anyone with murder by poison. They have an open investigation and can keep investigating, but unless they can show some person has some type of link to the murder, they can't charge anyone. Cyanide poisoning is very rare. Cyanide is very hard to get. Also, if you eat too many almonds and/or lima beans, your body could have a reaction similar to cyanide poisoning, where all the tests will come up positive for the poison.

If they can track all the cyanide sales in the area, and they can link that to anyone he knew or knew circumstantially, that would be a the most useful fact for me.

Until someone is charged, murder by poison is just a theory.

Murder by Poison

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Computer Theft Crime

To +Brian Zeiger: a warrant was served on my house for my computer. On the warrant it read that I was using stolen credit card information to purchase items online. The crime alleged is theft; the police officer called a computer theft crime or cyber crime. How can the police know it was me?

Very good question. The police do not know it was you and they most likely cannot know for sure it was you. However, in criminal prosecutions the burden of proof is on the government to prove beyond a reasonable doubt that you committed the crime. They government can do this through direct or circumstantial evidence. Direct evidence is when the see you do it, they find the proceeds of the crime on your person, or there is eyewitness testimony. Circumstantial evidence is like going to bed and the pavement is dry, then waking up to find it wet. You can say circumstantially it rained--that is, under the circumstances of your observation, you can say with some measure of certainty that it indeed rained.

In your case, the police can look to the IP address of the computer from where the transaction was made and then get a warrant for that computer. They can search the house to see if anyone else lives in the house. They can search the other rooms and mail, etc. The police can look to see who signed for the packages and the email address for the orders that were made online. They can use video or photos from the delivery truck. They can show a photo spread to the delivery person. The police can also look to see how the credit card information was stolen and try to link it back to you.

Also, often times in these cases people are not acting alone. If you are charged with conspiracy, then anything they can put on other people they can put on you. Also, if any of your co-defendants snitched on you, they can use the co-defendants' statement against you.

computer theft crime | cyber crime

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Knowingly, Intelligent, and Voluntary

The man who killed multiple people in the movie theater, James Holmes, wants to plea guilty, but I understand the judge will not let him. To +Brian Zeiger, why can't he plea guilty and admit his crime of murder?

In order to plea guilty, it must be a knowingly, intelligent, and voluntary plea. That means the defendant must understand when he pleas, to what he is pleaing, he is competent to make the decision and the medications he is on are not preventing him from understanding where he is. In other words, no one forced him or convinced him to plea guilty, he is pleaing guilty because he did it, because he committed murder.

In this case, the judge needs to make sure that the man is competent to enter the plea.

James Holmes

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Marijuana Posession

We received a the question below this paragraph that I have put in quotation marks so our reads can see the way charges are sometimes written on charging documents by police and District Attorney's offices. However, the question translated to English is, "I had some marijuana on me. I was charged with both possession of narcotics and possession of marijuana. Why two charges?"

The actual question from the reader was:

"Why would Purc/Rec of cont subst by unauth per, Int poss of a cont subs by per not reg, and poss of marijuana all be charged at the same time if a person only had marijuana on them?"

The distinction here is based on two statutes  First, lets look at the general statute for possession of narcotics in Pennsylvania:

Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

Now lets look at the the statute for possession of marijuana:

Notwithstanding other subsections of this section, (i) the possession of a small amount of marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marihuana but not for sale. For purposes of this subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be considered a small amount of marihuana.

The real answer lies in strategy, but it is a hollow action by the District Attorney because the weight of the pot is what truly controls this analysis.

At the time of the arrest, if the defendant only has marijuana on them, the police officer should be able to make a quick weigh of the pot. If it comes back as less than 30 grams, then only possession of marijuana should be charged. If the amount of marijuana is greater than 30 grams, general possession should be charged.

The only reason everything would be charged is if the arresting officer has no ability to weigh the weed. If this is the case, everything should be charged, and after the marijuana is weighed, the District Attorney should only proceed on the relevant offense. If the District Attorney refuses to do this, then your lawyer can file a motion to quash the inappropriate bill or file a a writ of habeas corpus in regard to the inappropriate bill.

This question was published today for all of our readers contemplating a move to Seattle or Boulder.

Marijuana

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Miranda & DUI

I was arrested for DUI; I wasn't read my rights (Miranda Warnings). Can I beat the case because I was given my rights?

This is a much harder question than you would think. The basic misconception about Miranda Warnings, or "your rights" is that the police must give them to people every time they make an arrest. This completely not true. The only time that Miranda Warning must be read is a custodial interrogation. That means that you have to be in custody and not free to leave, and that you are being questioned.

Many scenarios come up where you would not be entitled to your rights. For example, if the police see you commit a crime and simply arrest you. You would not get your rights because they would not question you. Another instance is where the police stop you on the street and ask you if you would chat with them. This is not custodial, so again you would not get your rights.

There are exceptions to the Miranda rules. In DUI cases, you do not get Miranda Warnings before you take a breath or blood test. The rationale is complicated but the end result is that your blood levels would change while waiting for the lawyer to arrive, so they can take your blood or breath without giving you your rights.

The interesting part of the question regarding Miranda Warnings with DUI cases, is at the very beginning of the case. When the initial stop is made, if there is an accident or the driver stinks like booze, what officer would every let the driver leave the scene? Therefore, the driver is not free to leave and is in custody. So, if the police officer asks the driver, "have you been drinking?" Any answer to that question is a Miranda violation and should be suppressed.

The question was can I beat my case based on this violation? I don't think you can because the police officer could have arrested you for DUI even without asking you if you had been drinking. Therefore, even if you get the statement suppressed, the chemical testing is still going to come into evidence and police officer's observations are still coming into evidence, and that might be enough for many judges for a conviction.

Miranda Warnings & DUI

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Special Probation

I was sentenced to 2-4 years plus 5 years special probation. I did three years. I met my state parole officer and reported as scheduled. I walked off my 1 year of parole. I am now on my special probation. I went to report for the special probation and I was told that my special probation tail was transferred to Philadelphia County Probation Department. I went there to report and no one has any file for me. I have called and called and I have gone by there about 12 times. I don't want to get a bench warrant. What should I do?

I agree that you should be somewhat concerned about your situation. I think you should contact your old state parole officer and ask him or her for some help. Something is wrong. If you pick up a new case, the Pennsylvania Board of Probation or Parole could attempt to violate you on your special probation.

If the state parole office won't help you, I would hire a lawyer to go before your back judge and file some type of motion to bring clarity to your situation. You do not want any uncertainty with a state probation tail.

Special Probation

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Abatement

My daughter recently passed away from a serious medical condition. She had an open bad checks case at the time of her death in Philadelphia County. Obviously, she did not appear in court for her last hearing. She got a bench warrant. I would like to get the bail money back that I put up. How can I get my bail money back?

You should hire a lawyer to file a Motion for Abatement. First the lawyer should file a motion in miscellaneous criminal court to have the bench warrant lifted. Then the lawyer should file for an abatement. After the abatement is granted, you can get your bail money returned.

Abatement

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Cost to Get a Detainer Lifted

My husband has a detainer and I want to get it lifted. How much does it cost to get a detainer lifted?

In general, you cannot "pay" to have the detainer lifted. However, there are two scenarios where you will need money to get the detainer lifted.

Sometimes at the Gagnon I hearing the judge or commissioner conducting the hearing may say that they will lift the detainer pending the payment of some fine/cost/restitution from the back case. If this is so, you will need pay that amount to get the detainer lifted.

Second, if the detainer is not lifted at the Gagnon I hearing, but the Gagnon II isn't happening yet because he has a new open case, you may have to hire a lawyer to attempt to the get the detainer lifted. Sometimes, the public defender or a court appointed lawyer may tell you that you have no chance of getting the detainer lifted for various reasons. However, for whatever reason, you disagree and you want to take a shot to get it lifted regardless of their advice. If this is the scenario, you can hire a lawyer just for the purpose of getting the detainer lifted and doing a detainer hearing in front of the judge herself who put the detainer on your husband. This hearing is still a Gagnon I hearing. To hire a lawyer for this hearing,your will need to pay the lawyer.

Get a Detainer Lifted

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Murder and Mental Health

I suffer from extreme mental health problems and have a true mental health diagnosis. I killed someone and have been charged with Murder. At the time of the killing, I was not on my meds and I was not in my right mind. I want to be able to tell the jury about my mental health condition during my murder trial. My attorney told me that I might be able to bring in my mental health issue to reduce the level of culpability of the murder, but it depends on how the district attorneys charges the case. I don't understand this at all. I think I should be allowed to bring it in no matter what. Can you explain this to me?

My answer assumes this is not a death qualified case. Also, my answer is going to over simplify the question for purposes of this article. If this is really your case, you should speak with your lawyer about the specifics of how the district attorney is charging you to get a better answer.

You can argue mental health issues only if you are charged with Murder 1 or Murder 2 and argue that you be found guilty of Murder 3 because it negates your intent. However, if you are only charged with Murder 3, your mental health issue is not relevant any more because it cannot negate the intent on Murder 3.

If you truly have the mental health diagnosis, its clear that you are the killer, and the district attorney doesn't have a good Murder 1 case, a smart district attorney may only move on Murder 3 so as to prevent your mental issue from coming into evidence so the jury won't feel bad for you and nullify to Manslaughter.

If you are the killer, and that fact is undisputed, you would much prefer to be found guilty of Manslaughter than Murder 3 because the the amount of time you would be facing is FAR less. If your mental health state comes in to evidence the jury could feel bad for you and find you guilty of only Manslaughter even though the jury instruction will be that the mental health only effects the difference between Murder 1 and Murder 3.

Therefore, to prevent the jury from feeling bad for you, the district attorney should not move on Murder 1 and just move on Murder 3 and your mental health issue from coming in. But, if the district attorney moves on Murder 1, your mental state at the time of the killing should come in.

Murder and Mental Health

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