The Mazza Law Group, P.C.
2790 W. College Ave., Suite 800
State College, PA 16801 March 10, 2016
(814) 237-6255

Fines/Restitution paid by Defendant ordered returned

Due process requires the return of money paid towards fines, costs and restitution follow a Defendant’s successful appeal where prosecution declines to retry the case.  In Nelson v. Colorado, at issue was a Colorado case in which the defendants were convicted, but those convictions were reversed on appeal.  When the prosecution decided not to retry their cases, they sought return of the thousands of dollars they had already paid in previously ordered fines, costs, and restitution.  Colorado had a scheme which require such individuals to file a civil suit and prove their actual innocence by a preponderance of the evidence in order to get a refund.

The United State Supreme Court issued a ruling invalidating Colorado’s statute, stating that fines, costs, and restitution paid by an individual who successfully appeals a conviction of a crime and who will not be retried, must be returned to the defendant.

In delivering her opinion, Justice Ginsburg stated that such Colorado’s procedure deprives individuals of their right to due process.  “Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions”.

Since the defendants did not stand convicted of the offenses, they were presumed innocent under the law, so it would be a violation of constitutional rights to require them to prove actual innocence in order to recover their money.  Noting that the convictions were invalid, “the state had no legal right to retain their money.”

If you have a case that was successfully appealed, you may be entitled to have any fines, costs and/or restitution you paid refunded. Likewise, if you or a loved one is facing a criminal trial or would like to file an appeal or post conviction relief petition, call the criminal defense lawyers at The Mazza Law Group for an assessment of your case.

H-1B Visa Enforcement under the new administration

Since taking office in January, President Trump and his administration have announced a “targeted approach” in the investigation of employment-based visa fraud.  Therefore, it is important for employers who hire foreign nationals on a temporary basis under the H-1B visa program to comply with the law and regulations of the program.

The H-1B visa program allows employers to temporarily hire highly skilled foreign nationals in specialty fields when there is a shortage of US citizens or lawful permanent residents to fill those positions.   Employers must meet specific requirements, such as filing a labor condition application with the Department of Labor.  This application requires an employer to establish that foreign nationals will be paid in accordance with the actual and prevailing wage, and that working conditions will be equivalent for both American and foreign nationals, to avoid unfair competition that arises when foreign workers are paid less than US citizens or lawful permanent residents for the same positions.

According to a recent press release, U.S. Citizenship and Immigration Services (USCIS) will conduct site visits to employers with a focus on:

  • Cases for which USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

If you are an employer of foreign nationals, it is important to remain informed of policy changes and the enforcement priorities under the new administration.  The lawyers at The Mazza Law Group are closely monitoring new developments in the law and policy on a daily basis.  If you need representation in an immigration matter, please call our office to schedule a confidential consultation today!

Custody & Visitation Rights – Incarcerated Parents

Judges in Pennsylvania are required to consider sixteen factors when deciding the custody schedule that is in the best interest of a child.  These relevant factors are listed in 23 Pa. C.S. §5328(a).  All of the factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being” are said to be important in deciding who should have custody and visitation rights.  The Court must give weighted consideration to those factors which affect the safety of the child.”

What happens when a parent is in prison? In the case of Etter v. Rose, 454 PA.Super. 138 (1996), the Superior Court outlined additional considerations to be evaluated when a parent is incarcerated. They include:  (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit;  (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past.

The Pennsylvania Supreme Court, in D.R.C. v. J.A.Z., 612 Pa. 519 (2011) added that the type of crime committed by the parent is relevant to the best interest of the child when deciding custody.  By statute, a parent must report whether they (or any other adult in their household) have committed a criminal offense if they are seeking a custody order.  While it may be a red flag warranting the attention of the Court, a conviction does not automatically prohibit visitation – even if it has resulted in the incarceration of the parent.

Most recently, in the case of M.G. v. L.D.,  decided on February 8, 2017, the Superior Court confirmed that the nature of the criminal conduct that led to the parent’s incarceration should be considered when determining the child’s best interest.  The M.G. v. L.D. court evaluated the incarcerated mother’s crime (shooting the child’s other parent) as well as her other behaviors in deciding whether she should have telephone contact, written correspondence or visitation with her daughter. Even though fundamental parental rights are protected by the First and Fourteenth Amendments to the Constitution, the child’s best interest should be of paramount concern to the Court.  Incarceration, in and of itself, does not prevent a parent from seeing a child, but visitation must be adjusted to account for the unavailability of the parent.   If you want to learn more about custody and visitation rights of parents, whether incarcerated or free, consult with an experienced family law attorney at the Mazza Law Group, P.C.

Is Petit Larceny in NY equal to Retail Theft in PA?

Every retail theft is a petit larceny, but not all petit larcenies are retail thefts…

On March 1, 2017, the Superior Court issued a ruling in a matter of first impression- that being whether an individual’s prior convictions for petit larceny in New York constitute prior offenses for determining the proper grading for the offense of retail theft in Pennsylvania.

In Commonwealth v. Vandyke, the defendant stole $14.50 worth of items from a Dollar General store, was prosecuted for Retail Theft, and pleaded guilty.  She had two prior convictions for the offense of petit larceny in New York- both shoplifting-related incidents- and those offenses were counted by the court as prior retail thefts, making this case a felony and punishable by up to seven years in jail.

Ms. Vandyke appealed the Judge’s ruling, arguing that petit larcenies should not count as prior offenses and the charge should have been therefore treated as a summary offense punishable by no more than 90 days for a first offense.  At issue in the appeal was whether New York’s petit larceny was “similar” to Pennsylvania’s retail theft statute- and also, whether the court could review police reports and look into circumstances of prior, out-of-state convictions to determine whether the facts underlying them were similar to Pennsylvania’s retail theft statute.

As the court stated, “A conviction for petit larceny would apply to the theft of items from a retail establishment, but would also apply to theft of a bike from outside a home, tools from a construction site, or any number of crimes not involving retail thefts.”  In pointing out the differences between these two crimes, the Superior Court decided that it was error for the sentencing court to count them as priors, finding that she was guilty only of a summary offense, not a felony.

If you or a loved one are charged with a crime and have a prior offense, it is important to have an experienced criminal defense attorney review the case and your prior record thoroughly.  Call the criminal defense lawyers at the Mazza Law Group to discuss your case confidentially.

Procedure for Mental Health Commitment Expungements Clarified

For individuals who have been subjected to an involuntary mental health commitment under the Mental Health Procedures Act, there may be collateral consequences of that commitment.  First of all, such a commitment prevents an individual from possession of or purchase of a firearm.  Secondly, the record may become available in the even the individual applies for a security clearance or certain professional licenses and other types of employment.

There is a process by which an involuntary mental health commitment can be expunged.  An individual may petition for expungement of the records of the commitment by filing a petition to ask the court to review the sufficiency of the evidence upon which the commitment was based.  If the evidence is sufficient, the commitment records provided to the Pennsylvania State Police shall be expunged.

While the law provided for such an expungement proceeding, courts and practitioners were left with questions as to how the law would be applied and how the court would determine the sufficiency of the evidence.  In the matter of In re Vencil, decided January 19, 2017, the petitioner requested expungement of a mental health commitment.  The trial court denied the petition, but the Superior Court held that Ms. Vencil was entitled to a de novo hearing, and that clear and convincing evidence to support the commitment must be presented.

The Pennsylvania State Police appealed this decision to the Pennsylvania Supreme Court, which reversed the Superior Court and clarified the legal standard for an expungement, by stating:

“The trial court’s review is limited to the findings recorded by the physician and the information he or she relied upon in arriving at those findings, and requires deference to the physician, as the original factfinder, as the physician examined and evaluated the individual in the first instance, was able to observe his or her demeanor, and has particularized training, knowledge and experience regarding whether a 302 commitment is medically necessary.”

This standard seems to limit the review to whether the physician’s decision was reasonable based on the information available to the physician at the time of the examination, and does not seem to allow for extrinsic evidence to be considered.

However, there may be relief available to an individual who is precluded from possession of a firearm in the form of a petition to restore firearm rights, which may be granted if the individual can prove to the court he or she may possess a firearm without risk to self or others.

If you or a love one have been the subject of an involuntary commitment, you may have a question about your rights and whether the records can be expunged.  Contact an experienced attorney at the Mazza Law Group, who will discuss your case confidentially to determine whether you may be entitled to some relief.

Superior Court rejects enhanced penalties in DUI refusal cases

In a decision issued January 31, the Superior Court of Pennsylvania decided that increased penalties may not be imposed as a result of an individual exercising his or her right to refuse a blood test in a DUI refusal case.  In Commonwealth v. Giron, the court noted the US Supreme Court’s decision in Birchfield v. North Dakota, which held that consent for a blood test is not given voluntarily if done so to avoid increased criminal penalties.  Without a warrant or exigent circumstances, an individual cannot be subjected to enhanced criminal penalties, such as are called for in Pennsylvania’s DUI law, for exercising his or her constitutional right to refuse a blood test.

This case could have a profound impact on an individual’s sentence for DUI, particularly those with prior offenses both in terms of the mandatory minimum and the maximum possible sentence.  For a second offender, the mandatory sentence with refusal is 90 days minimum to five years maximum, but as a general impairment offense, the mandatory sentence would only be five days minimum to six months maximum.

In its decision, the court did not address issues involving non-criminal penalties, such as a driver’s license suspension for a refusal.  In fact, the Supreme Court noted approval of civil penalties for refusal to take a blood test, such as the automatic 12-18 month suspension for a refusal, regardless of whether there is a conviction.

If you or a loved one are charged with a DUI, or have been convicted and sentenced for a DUI “with refusal” you should discuss this ruling with an experienced DUI lawyer to find out whether your minimum and/or maximum sentence may be reduced if you take prompt action.

To speak with an experienced DUI lawyer about your rights to refuse to take a blood test, call the Mazza Law Group today.

Same Sex Marriage: Pennsylvania allows dissolution of same sex civil unions under divorce laws

The Pennsylvania Superior Court has recently ruled that same sex civil unions may be dissolved in Pennsylvania under the same laws that apply to married couples.  The significance of the decision in this case, Neyman v. Buckley, is easier to understand from a historical perspective.

In 2000, Vermont became the first state to allow civil unions between couples of the same gender.  Because civil unions did not create the same rights and benefits of the current, more common marriages, the way to terminate the relationship was undefined. In 2009, when the Vermont legislature recognized same sex marriage, they established separate legal methods for dissolving a civil union or divorcing a marital spouse. Since same sex couples can now marry and divorce in any state, it is unclear whether those joined in civil unions must return to Vermont to officially end their relationship.

On June 26, 2013, the U.S. Supreme Court, in the case of U.S. v. Windsor, 133 S. Ct. 2675 (2013), held that it was unconstitutional under the 5th Amendment for the government to issue laws denying individuals the right to marry based on their sexual orientation.  As a result, state courts and legislatures have tried to develop fair and consistent laws about marriage and divorce for same sex couples. In Pennsylvania, Middle District Federal Judge John E. Jones first ruled on May 20, 2014 that the state laws limiting marriage rights to a man and a woman were unconstitutional, in the case of Whitewood v. Wolf. (See our Blog on the Whitewood case)

Most significantly, in 2015, the U.S. Supreme Court ruled in the landmark case of Obergefell v. Hodges, 135 S.Ct. 2584 (2015), that each state must recognize same sex marriages entered in other states.   Since the Supreme Court only referenced “marriage” as the subject of their decisions, the question remained whether individuals ‘wed’ through civil unions rather than marriages may have their unions dissolved in any state jurisdiction.

Recently in Pennsylvania, on December 28, 2016, in the case of Neyman v. Buckley, the Superior Court ruled to that Pennsylvania courts may dissolve civil unions under the existing Divorce Code.  The Court ruled that “a Vermont civil union “creates the functional equivalent of marriage for the purposes of dissolution.”  The trial Court had previously dismissed Freda Neyman’s complaint in divorce against Florence Buckley, saying that Pennsylvania did not have jurisdiction to dissolve a civil union created under Vermont law because the Divorce Code allows divorce only from “bonds of matrimony.”   Considering the legal principle of “comity” on appeal, the Superior Court found instead that the laws of another state should be enforceable “out of deference and mutual respect.”  Since civil unions are treated as the equivalent of marriage, the Court ruled that same sex couples in unions deserve the same divorce options as others, including opposite-sex couples, when their marriage fails.

It remains to be seen how the court will decide issues of property division and support in cases involving both civil unions and subsequent marriages of same sex couples.  If you want to know more about divorce laws and related issues, contact the Mazza Law Group to speak to an experienced family law attorney.

Immigration Status following Inauguration

What does the change in administration, and potential change in immigration policy mean to my immigration status?

Given that a new President is being Inaugurated, many immigration lawyers have been receiving an increased number of inquiries from individuals concerned about whether the new administration’s immigration policies will affect their status, or their plans to apply for a green card, citizenship, employment authorization, or any other immigration benefit.

Right now, our country’s immigration statute, the INA (Immigration and Naturalization Act) remains in full force and effect.  Any changes to that law would require an act of Congress.

However, there are areas of immigration law that have been shaped by Executive Actions- for example, the Deferred Action for Childhood Arrivals (commonly known as DACA) which was enacted in 2012 by President Obama and expanded immigration benefits.  Another example of an Executive Action, which limited immigration benefits, was President Obama’s recent decision to end the policy which allowed Cuban refugees who reached the shores of the United States to have a fast track to permanent residency. The executive branch of our federal government also has the ability to make priorities in terms of enforcement of the immigration laws which are in place.

Right now, there is no way to accurately predict which Executive Actions will be issued, what prosecutorial discretion will be exercised, and how immigration policies will change in the coming months and years.

Now more than ever, it is important to consult an immigration lawyer before filing any immigration applications.  Immigration lawyers will be diligently reviewing any new Executive Actions or changes in the law and policy and can advise you of the best course of action in your case.

If you have a question about becoming a legal permanent resident, citizen, or have any other question about your immigration status or that of a loved one, contact the Immigration Lawyer at the Mazza Law Group.

Is your New Year’s Resolution to create a Will?

An Estate Plan begins with a Will, the document used to convey your property upon your death.  The Estate Plan may also include documents such as Power of Attorney, Health Care Power of Attorney,  Living Will, or Trusts. It would depend on your personal situation as to whether some or all of these additional documents are necessary.  You may be under the impression that you can create these documents on your own. While that certainly is true, you must take into consideration that a Lawyer can help you prepare these documents while answering questions you have probably already asked yourself.  These include:

  • Should I convey my Real Estate in my Will or will that have some tax consequences?
  • Do I need an Executor and what exactly does this person do?
  • If I become incapacitated will a Power of Attorney give a person complete control of my Estate?

These are just a few examples of why it is important to seek legal representation for creating an Estate Plan.  Properly executed documents ensure your financial and personal property assets are handled as you wish. These are important decisions to make and you do not have to face them alone.

In addition to the tough questions faced when creating an estate plan, you also need to consider the Laws governing estates which require specific instruments contain specific language.  A good lawyer will know what those are.

If you are asking yourself where to begin, call us and someone can schedule you an appointment to meet with an Estate Planning Lawyer.

Plea Agreements defeat SORNA court says

Pennsylvania’s Sex Offender Registration and Notification Act (SORNA) was enacted on December 20, 2011 and established a three-tiered system for classification and defined sexually violent offenses.  The Superior Court issued an Opinion on December 21, 2016 in Commonwealth v. Ritz that found SORNA unreasonable and in violation of Due Process Rights if applied retroactively.  This decision addressed the interesting legal question of whether the legislature is in violation of the Contract Clauses of the United States and Pennsylvania Constitutions in modifying the terms of a plea agreement through SORNA.

Jonathan Ritz was one of many individuals who were drastically affected by the enactment of SORNA.  SORNA replaced Megan’s Law and extended registration times and added additional registration requirements for specific sex offenses. Many cases were negotiated pleas and Defendants were advised of how long they would be required to register as a sex offender. In Jonathan Ritz’s case, he accepted a plea agreement to indecent assault in 2005. Under Megan’s Law (in effect at the time) he was required to register as a sex offender for 10 years.  In 2012, SORNA came along and upped that requirement to a life time registration.

The Superior Court examined an issue that was not addressed in the Supreme Court’s decision, Commonwealth v. Martinez. In Martinez, Supreme Court found a fundamental due process right to enforce the terms of a plea agreement.  In other words, when a Defendant enters a plea agreement the terms of that agreement should be enforced.  The Ritz decision examined the contractual obligations protected by the United States and Pennsylvania Constitutions, specifically that no state shall pass any law impairing the obligations of contracts.  The Superior Court in Ritz applied the three prong test to determine if SORNA satisfies the Constitutional obligations of the plea agreement. It found SORNA met the first and second prong – 1) impaired a contractual relationship; 2) a legitimate and significant public purpose; however, it found it did not meet the third requirement that the adjustment of contractual rights to be reasonable and of a nature appropriate to public purpose.  It found SORNA to be unreasonable and invalid as applied.

If you have reached a plea agreement that requires you to register as a sex offender and are now being told that you have to register for a longer period of time, call an experienced criminal lawyer at The Mazza Law Group, P.C. We can review your cases to determine if SORNA has violated your constitutional rights.