Manchester and Associates

Pennsylvania Criminal & DUI Defense

Criminal Defense

Posted: In Criminal Defense

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I am not eligible for an expungement can I get a pardon in Pennsylvania?

If you plead guilty or were convicted of an offense that is not eligible for a limited expungement the only other way to remove the offense from your Pennsylvania criminal background is through the pardon process. This process is very long and there is a significant waiting period to even be heard for the pardon. Not everyone will be able to receive a pardon as there are multiple steps that an individual must go through. If you fail just one step along the way it could mean a denial of the pardon. Even if you have successfully completed the pardon process by getting the board of pardons to recommend a pardon, it does not mean that the Governor of Pennsylvania will grant the pardon.

The first thing you have to do is submit an application for the pardon. This application is provided at the Pennsylvania Board of Pardons website. There is an application fee of $25.00. Once the application is completed you will receive confirmation via a letter from the board. At this point an Agent from the Board will contact you to investigate the possibility of the pardon. You must make yourself available to them for your interview and any information that they require must be submitted to them. They investigate the facts surrounding the crime(s) for which you are requesting a pardon and prepare a report concerning your present personal status. Items that will be looked into are your residence, marital status, employment status, other resources and debts, club memberships, religious affiliation, education, military service, and reputation throughout the community. If you are an inmate the Department of Corrections will create this report. All legal entities involved in the offense will be contacted about the request for a pardon for their impute into the possible granting of the pardon.

Once the report is created it is submitted to the board of pardons who will review the report and if two out of the five members approve you will then be granted a hearing. Otherwise the process is over and you will have to try again after 12 more months have passed or 24 months if you have already received one denial. If you are incarcerated under a life sentence or for a violent crime then three board member must approve for a hearing. If a hearing is granted all parties involved in the original offense will be notified, as will the local newspapers for the general public.

At the Hearing you will have only fifteen minutes to state your case to the board of pardons. These hearings are held in the Supreme Court Courtroom in Harrisburg. Speakers in support and those against will also be permitted to speak at the hearing.

After the hearings the board of pardons will leave the courtroom for a meeting, and then will return to deliver their findings. For your pardon to be forwarded on to the Governor of Pennsylvania you must receive a majority of the board of pardons in favor of the pardon. If you are an inmate on a life or death sentence the result must be unanimous. If not then your pardon is over and you can try again in 12 more months have passed or 24 months if you have already received one denial. If you are found in favor the recommendation for a pardon if forwarded on to the Governor of Pennsylvania

Reconsideration – A request for reconsideration of any decision may be made to the Board. The applicant must show a change in circumstances since the application was filed, or other compelling reasons, sufficient to justify reconsideration. Dissatisfaction with the Board’s decision is not grounds to request reconsideration.

Obviously the best way to prevent any of these issues is to not be convicted at all. Then you will not have to worry about obtaining a pardon.

It is extremely important to contact an experienced law firm right away if you or someone you know is facing criminal charges in Pennsylvania. If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.

Posted: In Criminal Defense, Juvenile

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Juvenile Justice System – Part 2: Child Delinquent Acts

This week we will discuss what to expect if your child is alleged to have committed a delinquent act.

The first issue you may encounter is if your child is detained.  A child may be placed in detention, prior to a formal adjudication of delinquency, where the detention is required “to protect the person or property of others or of the child or because the child may abscond or be removed from the jurisdiction of the court or because he has no parent, guardian or custodian or other person able to provide supervision and care for him and return him to the court when required or an order for his detention…. has been made by the court…”[1]

In essence a child may be detained prior to a finding of delinquency when the child is a danger to himself or others, where the child may run away from home, or where there is not a suitable adult to supervise the child while the delinquency process proceeds.  If a child is detained the court must hold a detention hearing within 72 hours to determine if the detention is proper and whether the detention should continue.[2]  During the detention hearing, the court will also determine if there is probable cause to believe that the child committed a delinquent act.[3]

In some jurisdiction this hearing may be held before a “master” rather than before a juvenile court Judge.  A “master” is an attorney who is assigned to hear certain matters in lieu of a Judge.[4]  A party may object to a matter being heard by a master and request a hearing before a Judge.[5]  However, that may delay the proceedings.  At the conclusion of the detention hearing, the court may order that the detention continue pending an adjudication hearing or may release the child to the custody of a parent or guardian pending the adjudication hearing.

The next step in the process is an adjudication hearing.  The timing for scheduling an adjudication hearing depends on whether the child is detained.  If the child is detained an adjudication hearing is to be scheduled within 10 days of the filing of the petition.  If the child is not detained the adjudication hearing is to be scheduled within a reasonable time.[6]  As a practical matter, most courts attempt to schedule an adjudication hearing as soon as possible regardless of whether the child is detained or not.  Counsel for either side may request a continuance if they are not ready to proceed to a full adjudication hearing on the scheduled date.  At the adjudication hearing the burden is on the Commonwealth to prove to the court, beyond a reasonable doubt, that the child committed a delinquent act and that the child is in need of treatment, supervision, or rehabilitation.[7]  A child may elect to forgo a full adjudication hearing and enter an admission to all or some of the allegations.[8]    Following an adjudication hearing or an admission, the court will enter an order formally finding the child to be delinquent or not delinquent.

If the child is found delinquent the next step in the process is a dispositional hearing. [9]  The purpose of this hearing is to determine how to provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable the child to become a responsible and productive member of the community.[10]  In order to aid the court in fashioning an appropriate order the court may order a social case study to be prepared or may order the child to undergo a health, psychological, psychiatric, drug and alcohol, or any other examination it deems appropriate to aid the court. [11]  A dispositional hearing is to be held within 20 days of the finding of delinquency if the child is detained.  If the child is not detained the dispositional hearing is to be held within 60 days of the finding of delinquency.[12]

Next week I will discuss the possible dispositions that a child may face if they have been adjudicated delinquent.

*Information contained in this blog does not constitute legal advice and does not create an attorney client relationship.  You should always obtain counsel to address the specific circumstances in your case.

 

[1] 42 Pa.C.S.A. § 6325

[2] Pa.R.J.C.P. 240

[3] 42 Pa.C.S.A. § 6332

[4] 42 Pa.C.S.A. § 6305

[5] 42 Pa.C.S.A. § 6305

[6] Pa.R.J.C.P. 404

[7] In the Interest of N.C., 171 A.3d 275 (Pa.Super. 2017)

[8] Pa.R.J.C.P. 407

[9] Pa.R.J.C.P. 512

[10] 42 Pa.C.S.A. § 6352

[11] Pa.R.J.C.P. 513

[12] Pa.R.J.C.P. 510

Posted: In Criminal Defense

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Loss of Child Custody

A Criminal Conviction Can Cause Loss Of Child Custody

Unfortunately, it is true. A criminal conviction can be used against you in a custody dispute. There is even a statute that covers this. Below is that statute.

  • 5329.  Consideration of criminal conviction.

(a)  Offenses.–Where a party seeks any form of custody, the court shall consider whether that party or member of that party’s household has been convicted of or has pleaded guilty or no contest to any of the offenses in this section or an offense in another jurisdiction substantially equivalent to any of the offenses in this section. The court shall consider such conduct and determine that the party does not pose a threat of harm to the child before making any order of custody to that party when considering the following offenses:

18 Pa.C.S. Ch. 25 (relating to criminal homicide).

18 Pa.C.S. § 2702 (relating to aggravated assault).

18 Pa.C.S. § 2706 (relating to terroristic threats).

18 Pa.C.S. § 2709.1 (relating to stalking).

18 Pa.C.S. § 2901 (relating to kidnapping).

18 Pa.C.S. § 2902 (relating to unlawful restraint).

18 Pa.C.S. § 2903 (relating to false imprisonment).

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

18 Pa.C.S. § 3121 (relating to rape).

18 Pa.C.S. § 3122.1 (relating to statutory sexual assault).

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. § 3126 (relating to indecent assault).

18 Pa.C.S. § 3127 (relating to indecent exposure).

18 Pa.C.S. § 3129 (relating to sexual intercourse with animal).

18 Pa.C.S. § 3130 (relating to conduct relating to sex offenders).

18 Pa.C.S. § 3301 (relating to arson and related offenses).

18 Pa.C.S. § 4302 (relating to incest).

18 Pa.C.S. § 4303 (relating to concealing death of child).

18 Pa.C.S. § 4304 (relating to endangering welfare of children).

18 Pa.C.S. § 4305 (relating to dealing in infant children).

18 Pa.C.S. § 5902(b) (relating to prostitution and related offenses).

18 Pa.C.S. § 5903(c) or (d) (relating to obscene and other sexual materials and performances).

18 Pa.C.S. § 6301 (relating to corruption of minors).

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).

Section 6114 (relating to contempt for violation of order or agreement).

The former 75 Pa.C.S. § 3731 (relating to driving under influence of alcohol or controlled substance).

75 Pa.C.S. Ch. 38 (relating to driving after imbibing alcohol or utilizing drugs).

Section 13(a)(1) of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, to the extent that it prohibits the manufacture, sale or delivery, holding, offering for sale or possession of any controlled substance or other drug or device.

(b)  Parent convicted of murder.–No court shall award custody, partial custody or supervised physical custody to a parent who has been convicted of murder under 18 Pa.C.S. § 2502(a) (relating to murder) of the other parent of the child who is the subject of the order unless the child is of suitable age and consents to the order.

(b.1)  Parent convicted of certain sexual offenses.–

(1)  Notwithstanding any provision of this chapter to the contrary and subject to paragraph (2), if a parent who is a victim of any of the offenses set forth in this paragraph objects, no court shall award any type of custody set forth in section 5323 (relating to award of custody) to the other parent of a child conceived as a result of any of the following offenses for which the other parent has been convicted:

18 Pa.C.S. § 3121.

18 Pa.C.S. § 3122.1.

18 Pa.C.S. § 3124.1, where the offense involved sexual intercourse.

18 Pa.C.S. § 3124.2 (relating to institutional sexual assault), where the offense involved sexual intercourse.

18 Pa.C.S. § 4302.

(2)  A court may award any type of custody set forth in section 5323 to a parent who has been convicted of an offense under paragraph (1) if:

(i)  the parent who is a victim had an opportunity to address the court;

(ii)  the child is of suitable age and consents to the custody order; and

(iii)  the court determines the award is in the best interest of the child.

(3)  Paternity of the child shall be established by voluntary acknowledgment of paternity or blood, genetic or other paternity testing acceptable to the court. The cost of the testing shall be borne by the parent who was convicted of the offense.

(c)  Initial evaluation.–At the initial in-person contact with the court, the judge, conference officer or other appointed individual shall perform an initial evaluation to determine whether the party or household member who committed an offense under subsection (a) poses a threat to the child and whether counseling is necessary. The initial evaluation shall not be conducted by a mental health professional. After the initial evaluation, the court may order further evaluation or counseling by a mental health professional if the court determines it is necessary.

(d)  Counseling.–

(1)  Where the court determines under subsection (c) that counseling is necessary, it shall appoint a qualified professional specializing in treatment relating to the particular offense to provide counseling to the offending individual.

(2)  Counseling may include a program of treatment or individual therapy designed to rehabilitate the offending individual which addresses, but is not limited to, issues regarding physical and sexual abuse, the psychology of the offender and the effects of the offense on the victim.

(e)  Subsequent evaluation.–

(1)  At any time during or subsequent to the counseling under subsection (d), the court may require another evaluation to determine whether further counseling is necessary.

(2)  If the court awards custody to a party who committed an offense under subsection (a) or who shares a household with an individual who committed an offense under subsection (a), the court may require subsequent evaluations on the rehabilitation of the offending individual and the well-being of the child subsequent to the order. If, upon review of a subsequent evaluation, the court determines that the offending individual poses a threat of physical, emotional or psychological harm to the child, the court may schedule a hearing to modify the custody order.

(f)  Costs.–The court may order a party to pay all or part of the costs of the counseling and evaluations under this section.

(Apr. 12, 2012, P.L.241, No.32, eff. 60 days; Oct. 1, 2015, P.L.172, No.40, eff. 60 days; May 4, 2018, P.L.112, No.21, eff. 60 days)

 

2018 Amendment.  Act 21 amended subsec. (a) intro. par.

2015 Amendment.  Act 40 added subsec. (b.1). Section 3 of Act 40 provided that subsec. (b.1) shall apply to any action regarding custody of a child under Chapter 43 or 53 that is filed on or after the effective date of section 3.

2012 Amendment.  Act 32 amended subsec. (c).

Cross References.  Section 5329 is referred to in section 5330 of this title; section 1904 of Title 42 (Judiciary and Judicial Procedure).

 

It is extremely important to contact an experienced law firm right away if you or someone you know is charged with a crime in Pennsylvania.The possibility of a criminal conviction is bad enough but the loss of your children is a serious and life altering consequence all by itself.  If you, your son, daughter, or loved one in Pennsylvania has been arrested for a crime in state or federal court in Pennsylvania you need legal representation   Here at Manchester and Associates we represent people across the Commonwealth of Pennsylvania. For a free consultation we can be contacted at 1-800-243-4878.