Talking to the District Attorney

My cousin got in trouble, but he has never been arrested before. I think the District Attorney is prosecuting him way too hard. I want to contact the DA's office and explain to them that my cousin isn't such a bad guy and that he shouldn't get 5-10 years, but instead a county sentence or probation. Is it ok to contact the DA?

In my experience, I generally tell all people who ask me this question to NOT contact the DA. Sometimes people even ask me about contacting the Judge and I tell them never to contact the Judge. I digress.

The real reason I tell people not to contact the DA is because they have no idea how the DA will use their conversation against their loved one. For example if you were to say that your cousin knows better, the DA could turn around at sentencing and say to the Judge, even his family admitted to me on the phone that he knows better. Hit this clown tough, he KNOWS BETTER.

Contacting the DA is generally a bad idea. I have ever only had one occasion where it was to my client's benefit.

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Expungement of a Summary Offense

Over the last couple of weeks I have received several questions about the "Expungement of a Summary Offense." While I have always received questions in this regard, I have always told people that basically, we can't get them expunged except in very rare circumstances. However, there is a new Senate bill that the Senate has passed, the Governor says he will sign and the PA Board of Pardons says they encourage, that is listed as PA Senate bill 232. Under this proposed law, people with Summary, Misdemeanor of the second, and Misdemeanor of the third degree may now be eligible for an expungement. See below for more details. (P.S. bill 232 changes the rules on ARD expungements for indecent exposure cases. Therefore, if you got ARD for flashing, get it expunged now while you still can!!!)
§ 9122. Expungement.

(b)  Generally.--Criminal history record information may
be expunged when:
(1)  [an] An individual who is the subject of the
information reaches 70 years ofage and has been free of
arrest or prosecution for ten years following final release
from confinement or supervision[; or].
(2)  [an] An individual who is the subject of the information
has been dead for three years.
(3)  (i)  An individual who is the subject of the
information petitions for expungement of the information
and the individual has been free of arrest or prosecution 
following final release from confinement or supervision for
the greater of the following time periods:
(A)  In the case of a summary offense, five years. 
(B)  In the case of a misdemeanor of the third degree,
seven years.
(C)  In the case of a misdemeanor of the second degree,
ten years.
(ii)  This paragraph shall not apply to any individual
who has been convicted of:
(A)  An offense punishable by imprisonment of more than
two years.
(B)  Four or more offenses punishable by imprisonment of
one or more years.
(C)  A violation of section 3126 (relating to indecent
assault).
(D)  A violation of section 3129 (relating to sexual
intercourse with animal).
(E)  A violation of section 5511 (relating to cruelty
to animals).
(b.1)  Prohibition.--A court shall not have the authority
to order expungement of the defendant's arrest record where
the defendant was placed on Accelerated Rehabilitative
Disposition for a violation of any offense set forth in
any of the following where the victim is under 18 years
of age:
Section 3121 (relating to rape).
Section 3122.1 (relating to statutory sexual assault).
Section 3123 (relating to involuntary deviate sexual
intercourse).
Section 3124.1 (relating to sexual assault).
Section 3125 (relating to aggravated indecent assault).
Section 3126 (relating to indecent assault).
Section 3127 (relating to indecent exposure).
Section 5902(b) (relating to prostitution and related
offenses).
Section 5903 (relating to obscene and other sexual materials
and performances).

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Megan's Law Mandatory Sentencing

Today's question is my own: Did the legislature pass new law that has mandatory minimums for Megan's Law related crimes?

I was in court yesterday doing a preliminary hearing in a potential Megan's Law related case in Philadelphia. The majority of those cases are all in one courtroom. As I was waiting for the judge to appear, I saw an Assistant District Attorney walk in who is a bit more experienced and if not assigned to preliminary hearings. After that ADA checked-in, I said to them, "Why are you here?" They told me that there was a preliminary hearing listed that had the 25-50 Megan's Law mando and they were specially assigned. I asked what mando?

In a nut shell, it you have been previously convicted of any offense that requires you to register under Megan's Law at the time of any new offense that requires you to register under Megan's Law, your case holds a mandatory minimum of 25-50. If it is the third, life.

My only questions is how the sentence is imposed if the statutory maximum is less then 25-50, or life respectively? Perhaps the PA Supremes will help me on this as time goes by. Clearly, this seems inconsistent as a matter of law and is probably unconstitutional to boot. However based on Kennedy v. Louisiana, 554 U.S. ___ (2008), decided just this week, I would guess that at least four of the nine Federal Supreme Court Justices would say this type of sentencing is absolutely fine.

I have attached the relevant statutes for your reference. The first is the new mando statute. The second is the statute of the require offenses under the new mando.

§ 9718.2. Sentences for sex offenders


(a) MANDATORY SENTENCE.--

(1) Any person who is convicted in any court of this Commonwealth of an offense set forth in section 9795.1(a) or (b) (relating to registration) shall, if at the time of the commission of the current offense the person had previously been convicted of an offense set forth in section 9795.1(a) or (b) or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction, be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon such conviction, the court shall give the person oral and written notice of the penalties under paragraph (2) for a third conviction. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2).

(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more offenses arising from separate criminal transactions set forth in section 9795.1(a) or (b) or equivalent crimes under the laws of this Commonwealth in effect at the time of the commission of the offense or equivalent crimes in another jurisdiction, the person shall be sentenced to a term of life imprisonment, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required.

(b) MANDATORY MAXIMUM.-- An offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating to sentence of imprisonment for felony) or any other provision of this title or other statute to the contrary.

(c) PROOF OF SENTENCING.-- The provisions of this section shall not be an element of the crime, and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The sentencing court, prior to imposing sentence on an offender under subsection (a), shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender. If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section. Should a previous conviction be vacated and an acquittal or final discharge entered subsequent to imposition of sentence under this section, the offender shall have the right to petition the sentencing court for reconsideration of sentence if this section would not have been applicable except for the conviction which was vacated.

(d) AUTHORITY OF COURT IN SENTENCING.-- Notice of the application of this section shall be provided to the defendant before trial. If the notice is given, there shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsections (a) and (b) or to place the offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

(e) APPEAL BY COMMONWEALTH.-- If a sentencing court shall refuse to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for the imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.


§ 9795.1. Registration


(a) TEN-YEAR REGISTRATION.-- The following individuals shall be required to register with the Pennsylvania State Police for a period of ten years:

(1) Individuals convicted of any of the following offenses:

18 Pa.C.S. § 2901 (relating to kidnapping) where the victim is a
minor.

18 Pa.C.S. § 2910 (relating to luring a child into a motor vehicle).

18 Pa.C.S. § 3124.2 (relating to institutional sexual assault).

18 Pa.C.S. § 3126 (relating to indecent assault) where the offense is graded as a misdemeanor of the first degree or higher.

18 Pa.C.S. § 4302 (relating to incest) where the victim is 12 years of age or older but under 18 years of age.

18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses) where the actor promotes the prostitution of a minor.

18 Pa.C.S. § 5903(a)(3), (4), (5) or (6) (relating to obscene and other sexual materials and performances) where the victim is a minor.

18 Pa.C.S. § 6312 (relating to sexual abuse of children).

18 Pa.C.S. § 6318 (relating to unlawful contact with minor).

18 Pa.C.S. § 6320 (relating to sexual exploitation of children).

(2) Individuals convicted of an attempt to commit any of the offenses under paragraph (1) or subsection (b)(2).

(3) Individuals currently residing in this Commonwealth who have been convicted of offenses similar to the crimes cited in paragraphs (1) and (2) under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(b) LIFETIME REGISTRATION.-- The following individuals shall be subject to lifetime registration:

(1) An individual with two or more convictions of any of the offenses set forth in subsection (a).

(2) Individuals convicted of any of the following offenses:

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).

18 Pa.C.S. § 3124.1 (relating to sexual assault).

18 Pa.C.S. § 3125 (relating to aggravated indecent assault).

18 Pa.C.S. § 4302 (relating to incest) when the victim is under 12 years of age.

(3) Sexually violent predators.

(4) Individuals currently residing in this Commonwealth who have been convicted of offenses similar to the crimes cited in paragraph (2) under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(c) NATURAL DISASTER.-- The occurrence of a natural disaster or other event requiring evacuation of residences shall not relieve an individual of the duty to register or any other duty imposed by this chapter.

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Reasonable Bail

My brother got arrested and was charged with all misdemeanors in his case. The bail seems to be outrageously high. What constitutes reasonable bail? How can I get the bail reduced?

Bail should initially be composed of three factors: 1. The Defendant's prior record of convictions and the seriousness of those prior convictions; 2. The seriousness of the instant case; and 3. The Defendant's prior failures to appear in court (bench warrants).

Based on those factors bail is usually set to somewhat reasonable amount. Put yourself in the shoes of the person setting the bail and ask yourself what is the purpose of bail. Obviously, the purpose of bail is to ensure that you appear for your trial and the factors that are considered weigh whether you actual show up to court and what kind of time you are looking at in your case. In Philadelphia County, there are actual bail guidelines that instruct the bail commissioner on what bail is reasonable considering the above mentioned factors. However, those guidelines are simply that: guidance only.

After the bail is set, you can always appeal the bail to a Judge in the Court of Common Pleas to adjust it to a more appropriate number. In my practice, I wait until after the first preliminary hearing date to see if the complainant or the cops actually show up to Court so that I can argue a new fourth factor: a change in circumstance. When the initial authority set the bail, they assumed that the prosecution would continue until trial, but when witnesses fail to appear at a preliminary hearing, that makes the case less serious altering my third factor from above.

While bail is a serious matter to all, bail is not super complicated. I hope this answer helps.

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