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Manchester and Associates

Manchester and Associates

Pennsylvania Criminal & DUI Defense

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Legal Blog

April 17, 2020 By Greg Davidson

COVID-19 AND THE CRIMINAL JUSTICE SYSTEM

Just as COVID-19 is wreaking havoc across the United States in terms of sickness, deaths, and lost jobs it is also wreaking havoc on the criminal justice court system. In Pennsylvania as of April 2, 2020, the courts are essentially closed down until May 1, 2020. There are some exceptions to the closure of the courts. Cases involving Protection from Abuse Petitions and Orders, certain other emergency petitions, and hearings involving people who are incarcerated are still happening just not in the way they traditionally were.  Many hearings are being conducted using “advanced communication technology.”  Well, what does that mean? It means video and telephone. Video and telephone communication have been used in the business sector for decades but not in the criminal justice court system. As a result, the courts are now trying to piece together systems to conduct necessary hearings.  It is up to each jurisdiction to determine which systems to use and how. There is not one unified system used by the various courts, jails, or lawyers in the state. It is a hodgepodge system being set up as it goes. This makes it more difficult to communicate confidentially with your client during a hearing.   It also makes it harder to cross-exam witnesses as you can’t “show” someone their prior statement or testimony or any other physical evidence.

Criminal cases are also being continued throughout the state because a lot of court proceedings are conducted in large groups where dozens or hundreds of cases are heard at one time with packed courtrooms. These hearings are rightfully being continued because lots of people in one room is very dangerous at this time.  You simply can’t practice “social distancing” in a courtroom with 100 defendants, their attorney, court staff and the prosecuting attorneys.   Criminal charges are stressful enough but with cases constantly being continued, the stress is building up even more due to the uncertainty of not knowing when a person is getting their day in court. One of the most concerning issues for a criminal defendant is that Rule 600 has been suspended during this declared judicial emergency. Rule 600 is the Pennsylvania speedy trial rule. The speedy trial rule dictates that a person has to be brought to trial within 365 days of being arrested. Of course, there are exceptions to this rule in “normal” times. However, this unprecedented move to create a blanket suspension of Rule 600 is unprecedented and will likely be litigated in the future.   Although Rule 600 has been suspended a person’s constitutional rights to a speedy trial and to due process remain in place.   How the Pennsylvania Supreme Court’s suspension of Rule 600 will affect those constitutional rights is also an issue that will be litigated in the coming months.

The pandemic has pointed out many inefficiencies in the court system.  Among these are the communications issues I discussed above.  In addition, it has highlighted the number of counties that do not participate in the statewide electronic document filing system.  Mandatory participation would eliminate the need for each county to create email addresses for filing documents to prevent in-person filings and comply with social distancing requirements. Things will constantly be changing in the next several weeks, and hopefully not months. However, this firm is and will be constantly monitoring those changes, informing our clients about them, and exposing inefficiencies and lobbying for changes in the criminal justice systems once things get back to normal.

Filed Under: Court Procedure, Criminal Defense, News Tagged With: Coronavirus, Covid-19

April 17, 2020 By Greg Davidson

Domestic Violence Charges in Pennsylvania (2)

People often call our office and say they have been charged with Domestic Violence.  When we hear that, we always ask what the exact charges are because in Pennsylvania “Domestic Violence” is not an actual charge. It is a label that is applied to other offenses which can make the punishment more serious.  The typical offenses that are charged in a “domestic violence” incident are Harassment, Simple Assault, Aggravated Assault, Reckless Endangerment, Strangulation, and Unlawful Restraint. What makes them domestic violence related is when these crimes occur where the victim is a spouse, boyfriend, girlfriend, domestic partner, child, or family member of the person accused of these crimes.

A charge labeled as domestic violence related is treated differently and more harshly by the law. The harsher treatment starts at the investigation stage. When a police officer investigates a crime and it is determined to be domestic violence related and they see any physical signs of injuries the police officer may and usually do take the defendant into custody. For example, if a person calls the police and says their husband hit them and they have a bruise or scratch, then the police officer most likely will take the defendant into custody right away and file charges before an in-depth Investigation is completed.  

If you are charged with crimes that are designated as “domestic violence” the Magisterial District Judge who sets bail in your case can add conditions of bail preventing you from contacting your alleged victim or even preventing you from entering any residence the alleged victim lives in, even if you pay for that residence. For example, if a husband accused of assaulting his wife and they own a house together, a bail condition will likely be that the husband can’t go back to his own house.

If you are ultimately convicted of a domestic violence related offense you can be sentencing to a period of probation up through a state prison sentence depending on the offense you are convicted of.  You will also be required to participate in domestic violence related counseling.  Failure to complete that counseling can be the basis for a revocation of your supervision.  There are also collateral consequences if you are convicted of a domestic violence related offense. If a person is convicted of domestic violence, they lose their right to possess a firearm forever. It could even cost a person their professional license or security clearance.

Filed Under: Assault, Criminal Defense, Felony or Misdemeanor Charges Tagged With: Aggravated Assault, Domestic Violence, Simple Assault

April 17, 2020 By Greg Davidson

Felony DUI in Pennsylvania

Up until December of 2018, the only time you could be charged with a felony related to a DUI offense is if someone was seriously injured or killed. If someone was seriously injured the charge would be Aggravated Assault by Vehicle While DUI. If someone was killed the charge would be Homicide by Vehicle While DUI. The actual DUI charge itself was still graded as a misdemeanor even if someone was hurt or killed.

On December 24, 2018, that all changed. On that day the new DUI grading and sentencing law came into effect in Pennsylvania. Certain DUI offenses are now graded as felonies. A felony DUI now has a mandatory minimum of one year with a maximum of seven years. The way the law is written now the jail time has to be served in state prison.

A person’s third offense in ten years with a BAC of .16 % or higher or if the DUI is drug-related is now graded as a felony. All fourth DUI offenses in ten years are now felonies. The only exception to the one-year mandatory minimum in state prison is if it is a fourth offense and a person has a BAC below .10 % or is charged with a general impairment DUI. A person can be charged under the general impairment section in Pennsylvania if that person has imbibed a sufficient amount of alcohol to make them incapable of safe driving.

As I said above drug-based third or fourth offense DUI charges in ten years mean a person is facing a minimum of one up to seven years in state prison. Drugs include prescription drugs that are legally taken as prescribed, as well as prescription drugs that are prescribed. It also includes prescribed medical marijuana.

People who call us for representation in these matters often ask how we defend against these DUI charges. The answer is more than just aggressively and hard like most lawyers say. Aggressive and hard are not enough. We defend these charges using decades of experience and most importantly science. My team is trained in field sobriety testing, analytical chemistry, pharmacology, and many more areas relevant to defending DUI cases. We are constantly learning to know as much, if not more than, the police, lab technicians, and toxicologists the government always calls as witnesses in these cases. This firm also keeps up on new developments with the law.

Here is one example of how knowing analytical chemistry and what to look for saved a client from state prison in an alcohol-based DUI. The person was charged with her third offense in 10 years. The lab said her BAC was .17 % with an uncertainty of +/- .01. with 99.87% uncertainty. That means the lab was 99.87% certain that her blood is anywhere from .16 %to .18 %. In Pennsylvania .16 %or greater is the highest tier and for a third offense in ten that is a mandatory minimum of 1 year in state prison. The DA was unwilling in this case to lower the offense to a middle-tier first-degree misdemeanor offense with a mandatory minimum of 90 days that can be spent in county jail.

What we did was subpoena all of the data on the test from the lab. About 250 pages worth of data. The data was revealing. Turns out there were three test results and .17 % was none of them. They had three different test results and the lowest was .167 %. The lab averaged them to .17 % and reported it to the police. The lab never told the police officer that the lowest test result was .167 %. That is significant. That means with an uncertainty of +/- .01 and a confidence interval of 99.87% the range of possible test results was now .157 % to .177 %. The lowest possible result,  .157 %, is less than .16 %. The confidence interval of 99.87% means that every test result is equally as likely to be the true test result. Thus, .157 %is equally as likely to be the true test result as .177 %. As a result, the prosecution would not be able to prove beyond a reasonable doubt that our client’s blood was greater than .16 % thus making it a felony DUI. Once we showed this data to the DA the case was settled favorably for a county sentence.

A good example of keeping up with the law recently helped another of our clients who was facing a felony DUI based on Medical Marijuana. In Pennsylvania, it is still illegal to drive with any amount of THC in a person’s blood, even if the THC comes from lawfully prescribed medical marijuana because THC is a Schedule I drug. However, a case was recently decided that takes Medical Marijuana out of schedule I if the medical marijuana patient is complying with the medical marijuana laws. We presented this new case to the prosecutor and it resulted in a very favorable result for our client. Our client will not be a felon or go to state prison because of the case law we presented to the prosecutor.

Filed Under: DUI Tagged With: Driving Under the Influence, DUI

January 6, 2020 By admin

Why Is A Bail Hearing Required?

Bail hearing can be scheduled by either party, either by the Commonwealth or by the Defendant.  Most of the time a bail here is requested by the Commonwealth because they are either asking to have the bail increased or to have the bail revoked for some alleged violation of the bail conditions.  A Defendant can ask for a bail hearing to either reduce the amount of bail set, to change the type of bail set, or to remove a condition of bail.

The most common types of bail are:

ROR (released on your own recognizance): here you do not have to post any funds or property the Court is relying on your word that you are going to show up for Court when scheduled to do so in the future.

Unsecured bail: here the Court is releasing you without having to post any bail, however if you violate a bail condition you could owe the Court the amount of money that the Court set as the unsecured amount.  Thus the Court is saying as long as you show up to court and do not violate any conditions we are good, however if you violate then we will come after you for the money.

Monetary bail: here the Court will not release you until after you post the amount of money that the Court sets.  This can be posted either through a bail bondsman or through your own funds.  In addition you could use property as collateral for the Court such as your house.

Some Courts mostly Federal, but some State Courts require what is called a Nebbia Hearing before anyone can post bail for you.  This is also called a bail source hearing.  The Courts request this hearing because they want you or whoever is posting your bail to prove that the funds in which you are using to post the bail are from legitimate sources and not the proceeds of illegal activity.  The most frequent type of case in which these hearing are mandated is in drug related cases.

It is extremely important to contact an experienced law firm right away in you or someone you know is charged with a crime 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.

Filed Under: Bail, Criminal Defense

February 20, 2019 By admin

ROR Bail

One of the most common types of bail is ROR Bail, or “released on own recognizance.”

What Is ROR Bail?

What it actually is, is a promise to appear at all future court proceedings, not requiring any form of cash or property collateral like other forms of bail. There are often conditions imposed by the court that you will read about soon.

Can You Get ROR Bail?

All charges except for homicide are eligible for bail.

Whether or not you can get ROR bail from a court depends on a list of factors such as:

  • The severity of the offense.
  • Your history of prior offenses and whether you’ve made your past court hearings.
  • If you are considered a flight risk.
  • Your background check.
  • Family and ties to the community.
  • Your employment status.

Examples of criminal offenses that are commonly approved for ROR bail are:

  • DUI
  • Drug Crimes
  • Other non-violent offenses.

Overall, you must not be seen as a threat to the community and the judge is sure you will appear for court. You also must not be seen as a flight risk.

What Happens If ROR Is Granted or Denied?

If ROR is denied then you will need to post bail whether it is with cash or property as collateral.

If it is granted, you may face many stipulations such as:

  • Travel restrictions.
  • Stay-away orders.
  • Rehab classes.
  • Check in with a supervising officer.

What Happens If I Violate My ROR Bail Conditions?

Your bail will be revoked and you will be brought back to jail.

Unlike unsecured bail, there’s no monetary penalty set for a bail violation. However, by violating your bail conditions whether it is court-imposed restrictions or not appearing for a court date, you may face steeper legal penalties if convicted of what you were charged with.

What Is Next After ROR Bail?

Generally if you are granted ROR bail, the crime you are charged with is eligible for the Accelerated Rehabilitation Disposition (ARD) program. The ARD program is often where a lawyer comes in.

An experienced lawyer can successfully help you apply for ARD and have your charges dismissed or expunged after completion of the program.

Those who don’t qualify for ARD often are eligible for probation rather than jail time.

Why Bail Type ROR May Be Denied

Why ROR may be denied is for similar reasons it is granted, but with a few differences:

  • The nature of the offense.
  • Lack of ties to the community.
  • A prior criminal record.
  • Past instances of non-compliance with bail.
  • Past attempts to flee prosecution.
  • Your character.
  • Any known addictions to alcohol or drugs.
  • All other relevant factors.

What Do I Do If I Need Help With Bail?

Throughout the years, Brian Manchester and his associates have helped their clients be released on ROR bail whether it’s by getting them in touch with the best bondsman serving Pennsylvania or guiding them through the process themselves.

Filed Under: Bail

January 21, 2019 By admin

What is Institutional Sexual Assault and its Punishments?

18 Pa.C.S.A. § 3124.2§ defines Institutional sexual assault.

Institutional sexual assault specifically applies to sexual contact between two individuals who have a specific relationship. The law includes out many individuals who may be charged with this offense, including employees of the following:

  • Department of Corrections or another correctional authority.
  • Juvenile detention facilities run by the state or county
  • Youth forestry camps, Youth development centers.
  • Groups homes or other residential facilities that serve youth.
  • Mental health facilities. Employees of any of these institutions may be charged with institutional sexual assault if they have sexual contact with a resident, patient, or inmate of the facility in which they work.

Employees of these institution may be charged with ISA if they’ve had sexual contact contact with a resident, patient, or inmate of the facility where they work.

Punishments for Institutional Sexual Assault

Punishments for Pennsylvania institutional Sexual Assault can include:

  • Jail or prison up to 7 years.
  • Fine from $2,500 to $15,000.

The punishments for ISA are rather severe. This is because the employees are responsible for the safety and welfare of those they deal with. In most cases, the person who is sexually assaulted is unable to leave the facility, adding to the severity of the chargers.

Examples of Institutional Sexual Assault Charges

In 2018, Lackawanna County Prison recently had a high profile case where 7 current and former Correctional Officers were charged with Institutional Sexual Assault (among other crimes) of inmates occurring over a period of several years. The guards allegedly used their positions of authority to coerce the women into performing sex acts on them in multiple locations including cells and utility closets. The guards promised the women things like extra phone time, food and cigarettes.

In 2017, a female prison guard was also charged with, and convicted of, institutional sexual assault. A 42 year old Chambersburg woman pled guilty and stated that she touched a male inmate’s in his 20’s genitals. She was sentenced to 2 months of incarceration and 4 months of electronic monitoring.

If Charged, Call an Experienced Lawyer

If you find yourself, or a loved one finds themselves accused of Institutional Sexual Assault, it is crucial to call a Criminal Defense Attorney immediately. For a Free Strategy Session, contact Manchester & Associates immediately to begin building the defense against these charges. We want to help.

 

Filed Under: Sex Crimes

December 27, 2018 By admin

Distribution of Child Pornography | Case Study

Distribution of Child Pornography

Child Pornography charges have tremendous consequences for those convicted in the State of Pennsylvania. In “Child Pornography Charges in Pennsylvania”, we discussed how these charges can effectively result in a ‘life sentence’.

Now we will examine US v Scott, a child pornography case that shows how possession of child pornography can lead to distribution charges, and how those distribution charges can be fought against.

                US v Scott 

Jason Scott pleaded guilty to one count of possessing child pornography and was sentenced to 108 months in prison and a lifetime term of supervised release. He appealed the district court’s calculation of his Sentencing Guidelines range as well as the length and conditions of his supervised release.

A grand jury indicted Scott on one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and three counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He originally pleaded guilty to one count of receiving child pornography and was sentenced to 235 months in prison and a ten-year term of supervised release. However, this conviction was vacated after Scott filed a motion alleging that he pleaded guilty because his lawyer assured him that the district judge had told a mutual friend that Scott would get “hammered” if he went to trial, but that the judge would “take it easy on him” by sentencing him to only five years if Scott pleaded guilty.

The second time around Scott pleaded guilty again to a single count of possessing child pornography. This plea’s stipulated factual basis agents conducting an investigation into the use of a computer program called LimeWire determined that Scott’s computer “was actively downloading and possessing child pornography.” Law enforcement was able to download three illicit videos from the “shared” Limewire file folder on Scott’s computer. Through a forensic examination of Scott’s computer they confirmed that those videos were downloaded from the internet. The placement of files in the shared folder is part of Limewire’s default (but optional) settings.

Scott’s Presentencing Report (PSR) stated that he had used LimeWire to traffic in child pornography. The PSR recommended a five-level enhancement under U.S. Sentencing Guideline § 2G2.2(b)(3)(B) for “distribution [of child pornography] for the receipt, or expectation of a thing of value, but not for pecuniary gain.” Scott objected to this enhancement, arguing that a two-level enhancement under § 2G2.2(b)(3)(F) for “distribution other than distribution described in subdivisions (A) through (E)” should be applied instead. The PSR disagreed with this position, telling the court that Scott “had the file sharing function of [LimeWire] turned on … allowing him to not only receive … but to ‘distribute’ child pornography.” The PSR added that § 2G2.2(b)(3)(B) applies when a defendant trades in child pornography in exchange for child pornography.

Scott disagreed and argued to the court that he had been convicted of possession, not distribution, of child pornography. He stated that Government had not presented any “evidence that he knew he was making child pornography available to others or that he was a sophisticated computer user who might be presumed cognizant of the sharing.”

  • 2G2.2(b)(3)(B); Receipt, or Expectation of a Thing of Value

The issue in Scott’s case was whether he distributed child pornography “for the receipt, or expectation of receipt, of a thing of value” so as to warrant a five-level enhancement. The Fifth Circuit stated that a sentencing court must make a “requisite finding” that a defendant used LimeWire to “download and distribute child pornography” within the meaning of § 2G2.2(b)(3)(B). The sentencing court had concluded that Scott “by using LimeWire and other peer-to-peer file sharing programs, agreed to share the child pornography he gathered.” The 5th Circuit Court of Appeals remanded Scott’s case back to the sentencing court with instructions that the court must determine “whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in ‘the kind of exchange contemplated by § 2G2.2(b)(3)(B).’”

In short, the sentencing court did not make an “express finding” that Scott “knowingly used LimeWire to exchange child pornography” sufficient to create an “agreement” to distribute child pornography stored on his computer in exchange for “additional child pornography.”

Because of this the Fifth Circuit remanded Scott’s case back to the sentencing court with instructions that the court determine “whether the Government has met its burden of proving by a preponderance of the evidence that Scott knowingly used LimeWire in ‘the kind of exchange contemplated by § 2G2.2(b)(3)(B).’”

 

 

 

Filed Under: Sex Crimes

November 12, 2018 By admin

Student Crimes

Every parent wants their child to reach their full potential. However, your child’s future can be seriously compromised if he or she is accused of committing a crime, or accused of violating a high school, college, or university’s Code of Conduct. Depending on the type of allegation, your child may be required to attend a student disciplinary hearing and could potentially be criminally prosecuted. Irrespective of whether the allegations are mere violations of school policy or involve breaking state or federal law, your child needs aggressive legal representation to preserve and defend their future if charged with student crimes.

Common Student Crimes

Student disciplinary hearings can stem from behavior either on or off campus. The hearing may be instigated in one of several ways, for instance, an investigation by the Office of Student Conduct, or by a similar group or department. If the alleged behavior is criminalized, for example, assault, rape, or theft of property, criminal charges may be filed by a prosecutor.

Students are commonly charged with or accused of several code violations and criminal offenses, which can include:

  • Alcohol-Related Charges
  • Intoxicated Driving
  • Public Intoxication
  • Underage Drinking
  • Drug Possession and Distribution
  • Cocaine Possession
  • Ecstasy Possession
  • LSD Possession
  • Marijuana Possession
  • Selling Marijuana
  • Drunk Driving/Driving Under the Influence (DUI)
  • Breathalyzer Refusal
  • Marijuana DUI
  • Open Container Violations
  • Fake ID Charges
  • Making Fake IDs
  • Selling Fake IDs
  • Using a Fake ID to Buy Alcohol
  • Sex Crimes
  • Rape
  • Revenge Porn Offenses
  • Sexual Assault
  • Statutory Sexual Assault (Statutory Rape)

Other Offenses:

  • Bomb Threats
  • Cheating
  • Disorderly Conduct
  • Gun Possession/Possession of Weapons
  • Hate Crimes
  • Hazing
  • Identity Theft
  • Plagiarism
  • Shoplifting
  • Vandalism/Destruction of Property

Penalties for Violating a School’s Code of Conduct

The punishment for violating a student Code of Conduct – or for breaking state or federal laws – is varied and depends on factors like:

  • School policies, if the matter is non-criminal.
  • The severity of the alleged offense.
  • The student’s history and background.
  • Whether there were aggravating or mitigating factors.

Depending on the specific policies at the particular academic institution, the school may impose a variety of sanctions ranging from minor punishments to permanent expulsion. These potential punishments could include:

  • Expulsion
  • Letters of Reprimand
  • Probation
  • Suspension
  • Transcript Notations
  • Written Warnings

If law enforcement and prosecutors become involved in the investigation and charges are filed, the student can face much graver consequences. The consequences are particularly grave if the student is 18 or older, and if the charge is especially serious. The penalties for a criminal offense depend largely on whether the crime is a felony, summary offense, or a misdemeanor, as well as the degree of felony or misdemeanor. The criminal penalties for these offenses depends on the severity of the charges, the student’s age and history, and other factors. These penalties could include fines and restitution, mandatory community service, probation, and even jail or prison time. Further, there are certain allegations that cause a juvenile to be charged and tried as an adult.

 

Both parents and students need to remember that every scholastic institution has its own procedure for dealing with student Code of Conduct violations. Hiring a defense attorney who understands the procedures and regulations used at your child’s school is paramount.

If You or a Loved One Are Facing Charges While in School – Call Now!

If your son, daughter, or grandchild was arrested and charged with a crime at college, or is under investigation for suspected violations of their school’s Code of Conduct, defense attorney Brian Manchester is ready to fight aggressively to protect their rights. For a free and confidential legal consultation about a student hearing or criminal charge against a student or minor, contact our law offices at 1-800-243-4878.

Filed Under: Title IX/Student Discipline

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