Archive for November, 2010

Involuntary Commitment / PA Mental Health Act

Friday, November 19th, 2010

I recently represented a client facing a 180 day involuntary commitment to the Mental Health facility at Wernersville State Hospital under section 305 of the Pennsylvania Mental Health Act. After testimony before a Mental Health Hearing Officer the period of potential commitment was reduced to 30 days. Clearly, a favorable result for my client. While she will continue to recieve the treatment that she needs she will not be facing the possibility of a long stay in a restirictive facility.
Title 50 addresses mental health law in Pennsylvania. The law provides for the involuntary examination and treatment of individuals who, due to mental illness, lack the capacity to care for their personal needs to the extent that they pose a danger to themselves or others. The statutes can be found at 50 P.S. Section 7301 through 7305. Each section provides for examination by a physician and a period of time for which the commitment may last.
Individuals facing a 303, 304 or 305 hearing have the right to an attorney to represent them. It is particularly important for individuals and/or families of individuals facing involuntary commitment to hire an attorney to represent their interests. As with any situation where your liberty interests are at stake, you need to be prepared to present your best case.
Myself and my partners at Ebner, Nevins & McAllister have extensive experience representing individuals with mental health diagnosis. We are sensitive to the delicate nature of many of these cases and will zealously advocate for your interests. Please contact our office for a free consultation.

Kutztown University Student Gets ARD in Felony Aggravated Assault Case

Wednesday, November 17th, 2010

This past week I represented a Kutztown University student at an ARD Hearing in Berks County Court.  An ARD Hearing is a fairly simple hearing at which the Judge places a defendant on the Accelerated Rehabilitative Disposition Program, which is run by the Berks County Adult Probation Department.  If the program is successfully completed, the case against the defendant gets dismissed and any record of the case gets expunged.

Although the ARD Hearing itself didn’t take much time, the prior procedural history of the case is particularly noteworthy and complex.  Back in September of 2009, our client got into a verbal altercation with with another individual on the streets of Kutztown.  After some arguing back and forth, our client punched the other individual one (1) time in the face.  With that one (1) punch, our client knocked the other individual to the ground, causing some serious injuries that required medical treatment and surgery.  Importantly, our client did not continue to fight with the other individual.  It was one (1) punch, nothing more and nothing less.

Our client, who had never been in any trouble whatsoever prior to this incident, was arrested and charged with aggravated assault under 18 Pa.C.S.A. 2702(a)(1), a felony of the first degree, and simple assault under 18 Pa.C.S.A. 2701(a)(1).  Based on these serious charges, our client was facing a standard range sentence of somewhere around 4-8 years in state prison.

Attorney Liz Ebner handled the preliminary hearing and the negotiations prior to the ARD Hearing.  Based in part on Attorney Ebner’s research of Pennsylvania state caselaw, Attorney Ebner was able to convince the District Attorney’s Office to withdraw the charge of aggravated assault.  Even though the threat of a state prison sentence had been removed for our client, he was still in the unfortunate position of potentially having a misdemeanor conviction on his record for the rest of his life.  A simple assault conviction would have serious consequences for our client, who was a criminal justice major and was looking to pursue a career in the public sector.

Therefore, Attorney Ebner next sought to get our client approved for the ARD Program.  Although it can be difficult to get defendants placed on the ARD Program for violent offenses, let alone violent offenses where a felony was originally charged, Attorney Ebner wanted to exhaust every last option for our client.  Attorney Ebner wrote out a detailed letter to the Berks County District Attorney explaining the situation of our client.  After numerous back and forth negotiations, Attorney Ebner was able to secure the ARD Program for our client under the following circumstances: (1) our client must pay full restitution to the victim in the case, who did not have health insurance, and (2) our client must be under strict supervision on the ARD Program for a period of 24 months.  Any violation of ARD Program rules, and our client will be immediately kicked off of the ARD Program.

Our client was originally facing a felony of the first degree with a 4-8 year state prison sentence.  By the end of the case, our client will serve 24 months on the ARD Program, with the possibility of earning a full expungement of his charges and arrest record.  After two (2) years, there will be no record of this unfortunate event, and our client will be able to pursue the career of his choice without being labeled a “criminal”.

He was, of course, extremely happy with the outcome of his case.

Getting a Name Change in Berks County

Friday, November 12th, 2010

Over the course of my career, I’ve helped several different clients get their name formally changed through the courts.  Under Pennsylvania law, a Petition for a Change of Name must be filed in the Court of Common Pleas in the County in which the Petitioner resides.  To start the process, several documents are written up and filed at the Office of the Berks County Prothonotary; there is also a filing fee of $192.90.  Shortly after the documents are filed, the Judge that is assigned to handle the case will issue a court order stating the time, date, and location of a hearing on the Change of Name Petition.

Prior to the hearing, however, several other matters must be addressed under current Pennsylvania law.  Specifically, a record / background check is required, and proof of the completion of this must be presented at the hearing in front of the Judge.  Additionally, a title search must be conducted to determine if any judgments or liens have been filed against the Petitioner seeking the Name Change.  This information is required to re-assure the Courts and the Judge that the Petitioner is not trying to change his or her name in an attempt to commit some type of fraud.

Another requirement that must be completed prior to the hearing is that notice of the hearing, including the time, date, and location, must be published in two (2) local periodicals / newspapers of general circulation.  There are specific time-lines and requirements for publication, and it is important that any order from the Judge is followed word for word.

The final step in the process is to attend the hearing itself.  The Petitioner seeking the Name Change will have to take the witness stand and testify in open court about the reasons for the name change.  Additionally, the Judge might have some questions that will be asked of the Petitioner.  Although it can be somewhat of a scary experience for someone who has never been inside a courtroom, it is relatively painless.

People often attempt to represent themselves in these Name Change cases.  There is, however, a significant amount of paperwork that must be filed in each case.  Furthermore, it can be a complicated process for someone who is not familiar with court offices, such as the Prothonotary.  In fact, on more than one occasion I have been hired by a client in the middle of the Name Change process.  That is, someone initially started out handling the case by themselves, only to seek out the services of an attorney after running into problems.

In the end, it is much easier to have an experienced attorney handling a Name Change Petition rather than trying to do one on your own.  The legal fees for a name change are one-time “flat fees” and are very reasonable.  If you are interested in filing for a Name Change in Berks County or Reading, please contact my office to setup a free consultation.  I’d be happy to meet with you to discuss your specific situation in more detail.

Retail Theft Charges Withdrawn At Preliminary Hearing

Tuesday, November 9th, 2010

Last week, I represented a client at a district court hearing who was charged with Retail Theft, 18 Pa.C.S.A. 3929, as well as criminal conspiracy.  My client was a frequent customer of Home Depot located in Berks County, Pennsylvania.  Months ago, an employee of Home Depot was arrested, charged and prosecuted with “under-ringing” merchandise.  Following his arrest, the employee of Home Depot implicated my client as the supposed “mastermind” of this “under-ringing” scheme.  My client and I both believe that the Home Deport employee pointed the finger at my client in an attempt to get a better outcome in his own case.

My client had no prior record in Pennsylvania and had served in the military.  Therefore, we prepared a vigorous defense to get the charges dismissed; this was not the type of case that was going to be a plea bargain.

At the preliminary hearing, I met with the assistant district attorney assigned to the case as well as the police officer who had filed the charges.  After discussing the specific aspects of the case, as well as presenting some case law that was extremely favorable to my client, the Commonwealth agreed to withdraw each and every charge against my client.

Initially, my client was facing the potential for jail time and/or the possibility of a lengthy period of probation under the supervision of the Berks County Adult Probation Office.  Additionally, if convicted, my client would have been ordered to pay a significant amount of court costs and fines, and he would have had a misdemeanor record for the rest of his life.

After court, however, my client walked out with no jail time, no probation, no fines, no court costs, and no criminal record.  Needless the say, he was very happy with the result.

If you have been arrested or charged with a criminal offense in Reading, Pennsylvania, or Berks County, Pennsylvania, please call the office to setup a free consultation.

Pennsylvania Traffic Citations – 9 License Points & Departmental Hearing Successfully Reduced To Driving Class With 0 Points

Thursday, November 4th, 2010

The other day I represented a client at a district court hearing in Montgomery County.  My client was issued three (3) citations back in September while driving home from the Philadelphia area.  She was charged with 75 Pa.C.S.A. 3714, Careless Driving, 75 Pa.C.S.A. 3310(a), Following Too Closely, and 75 Pa.C.S.A. 3362(a)(2), Speeding 88 MPH in a 55 MPH zone.  Each of these citations carry a mandatory three (3) points, for a grand total of nine (9) points.  After an initial accumulation of six (6) points, PennDOT mandates that a written exam be taken and passed; in the event a driver fails to take the exam or doesn’t pass the exam, their driver’s license become indefinitely suspended.    Additionally, since the speeding citation was for exceeding 31 MPH, state law mandated a PennDOT departmental hearing if my client was found guilty.

I was prepared to fight the citations at a hearing, especially because at least two (2) of the citations appeared to be issued on information received.  That is, the State Trooper may not have witnessed the traffic violations first hand.  The witness who reported the erratic driving would need to be present to testify as to what took place; any testimony about what this witness allegedly “said” would be hearsay.

Nevertheless, I discussed with the State Trooper the option of working the case out to a lesser charge.  I brought up the fact that my client is employed full-time, and my client was also smart enough to be very respectful to the State Trooper when she was initially pulled over.  Based at-least in part on those two (2) factors, the State Trooper was willing to to reduce the citations.  Ultimately, we agreed that my client would attend a one-day safe driving school in Montgomery County; the cost of the driving school is $75, and, upon completion, my client will be issued a certificate by the school.  I will then submit the certificate to the court.  In exchange, the State Trooper agreed to withdraw the Careless Driving citation, 75 Pa.C.S.A. 3714, as well as the Following Too Closely citation, 75 Pa.C.S.A. 3310(a).  Furthermore, the State Trooper agreed to amend the Speeding citation, 75 Pa.C.S.A. 3362(a)(2), to Failure to Obey Traffic Control Devices, 75 Pa.C.S.A. 3111(a).  Importantly, this section of the vehicle code carries no points that would be applied to my client’s driver’s license.

My client was originally facing a possible nine (9) license points, a written exam administered by PennDOT, and PennDOT departmental hearing, which included the possibility of a 15-day license suspension.  In the end, my client ended up having to attend a one-day safe driving school in Montgomery County.  Additionally, my client will receive no (0) points on her license.  She was, of course, extremely happy with the outcome of her case.

If you have been issued a traffic citation in Berks County or Montgomery County, please contact the firm to setup a no-cost consultation with one of our attorneys.

School Zone Drug Charges in Reading, PA (Berks County, PA)

Wednesday, November 3rd, 2010

Possession with Intent to Deliver Drugs in Pennsylvania is a very serious charge with potentially serious consequences. Sentencing laws are strict and include mandatory minimum jail sentences under certain circumstances. This is a part of a series of posts meant for educational purposes for individuals or those who have friends or loved ones charged with Narcotics offenses such as Delivery or PWI of Marijuana, Cocaine, Heroin or other substances prohibited by the Drug Act.

“School Zone Mandatory”
One of the most commonly applied sentencing mandatories is the Drug Free School Zone statute found at 18 Pa.C.S. Sec. 6317. Individuals face a mandatory minimum of 2 years imprisonment if they are convicted of dealing drugs or possessing narcotics with the intent to deliver within 1,000 feet of the real property of a school or 250 feet of a playground or on a schoolbus. This mandatory applies regardless of the type or amount of narcotics involved and regardless of whether the individual knew he was inside of a school zone.

I recall representing a young man about two years ago who was facing a school zone mandatory in Reading, PA. Attorneys practicing Criminal Defense in Berks County are well aware that given the geographical layout of the City of Reading almost every locale in the City is a School Zone. This particular young man, 18 years old, had been sitting on the stoop outside of his home on a sunny summer afternoon with a few friends. Police in the area saw two of my client’s friends pass an unidentifiable object or objects between themselves. Police believed that this gave them justification to search each and every individual who was hanging out on the stoop that day. My client was found to be in possession of three blunts, a small amount of money and a cell phone. Remarkably, Police believed that this was enough evidence to charge my client as a suspected drug dealer and subject him to a 2 year school zone mandatory. He had no prior record, was a recent high school graduate and, at worst, was smoking marijuana at his home. Fortunately for my client we were ultimately able to beat his charges. I filed a pre-trial motion for Suppression of Evidence based on the bad search of my client’s person. The Judge dismissed the case, but by the time he did my client had spent about two months in jail. Had he been charged (correctly) with possession of a small amount of marijuana he would have likely paid a small fine or served 30 days of probation.

In contrast, individuals facing non-school zone PWI or Delivery of Marijuana typically recieve probation. While still a Felony, PWI of under 1 pound of marijuana has an Offense Gravity Score (OGS) of 3. Other charges carrying the same OGS include relatively minor midemeanors such as Simple Assault, Library Theft or Bad Checks.

Obviously there is a great discrepency in sentencing depending of where the alleged activity took place. What is clear is that whether you or a loved one is suspected of PWI or Delivery of Drugs in Reading, PA or Berks County, PA you need an experienced attorney. Please contact our office for a no cost consultation.

Firearms Charges in Berks County

Tuesday, November 2nd, 2010

I recently represented a client who was charged with firearms not to be carried without a license, which is codified under 18 Pa.C.S.A. 6106(a)(2).  Although this charge is typically graded as a felony, my client was charged with a misdemeanor of the first degree since he was otherwise eligible to receive a concealed weapons permit.  Nevertheless, a misdemeanor of the first degree is still quite serious and carries a maximum punishment of 2.5 – 5 years in state prison.

After reviewing the facts of the case and discovery with my client, I decided the best course of action would be to file an omnibus pre-trial motion in an attempt to suppress the evidence against my client.  As I began to research the caselaw in more detail, it became apparent that the legal principles involved were not entirely favorable to my client.  The odds of winning the pre-trial hearing began to wane.

However, I continued to prepare for the hearing.  On the day before the pre-trial hearing was scheduled to take place, though, I contacted the assistant district attorney assigned to the case.  I discussed with him the possibility of a negotiated plea agreement in exchange for withdrawing the pre-trial suppression motion.  Although the assistant district attorney was prepared to proceed, I was able to convince him to agree to a negotiated sentence of three (3) years probation for my client.  Additionally, my client will be eligible for early termination of probation after serving only half of that time.  This was a significantly reduced sentence from the initial offer to my client.

In the end, my client was very happy with the outcome.

If you have been charged with a firearms related offense in Berks or the surrounding counties, please contact my office to setup a no-cost consultation.