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.

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.

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.

Surveillance Video requested under RTKL denied

The Commonwealth Court recently ruled on a right-to-know request for a casino’s surveillance video that captured a two-vehicle collision. In Pennsylvania State Police v. Kim, the Court found that the video collected by Pennsylvania State Police was a part of a criminal investigation and protected under the Criminal History Record Information Act.

 

The Court’s decision discussed a recent case argued in the Supreme Court of Pennsylvania by Helen Stolinas of The Mazza Law Group, P.C.  In Pennsylvania State Police v. Grove, the issue involved surveillance video from vehicle dash cams installed in police vehicles.  A full discussion on this issue can be found on our blog, Lawyer Argues Dashcam Case.  We are still waiting the Supreme Court’s decision in that case.

The Commonwealth Court in Kim, found the case to be distinguishable from Grove because the videos were recorded by private parties (specifically a casino) and retrieved by police as a part of an investigation.  In Grove, the surveillance video captured police non-investigative activities or daily activities which the Court found was not protected under the Criminal History Information Act.  The issues presented in both cases involved Pennsylvania’s Right-to-Know Law which gives the public the right to request information relating to the business of public agencies. This fairly new law has been a highly contested issue because of the resources involved in complying with the request as well as the public’s interest and rights.

You or someone you know may be interested in gathering surveillance video  that is a part of a criminal investigation. Motives for reviewing the surveillance videos can vary from direct involvement in the case to the public’s right-to-know the conduct of government agencies. A lawyer at the Mazza Law Group can help decide the best approach in helping you address these complex issues.  Call us today.

State College Lawyer Argues Dashcam Case

Attorney Helen Stolinas of The Mazza Law Group, PC in State College, argued a case of statewide importance involving a police dashcam and the Right to Know Law yesterday before the Pennsylvania Supreme Court.  Her client is Michelle Grove of Spring Mills.

The case arose when Ms. Grove filed a request for a “dashcam” video recording from the Pennsylvania State Police which documented the police response to a traffic accident which happened in Potters Mills, Pennsylvania on March 22, 2014.

Under Pennsylvania’s Right to Know Law the State Police denied the request, but the Pennsylvania Office of Open Records granted access, resulting in an appeal to the Commonwealth Court, which also found that the video was a public record and should be released.  The Pennsylvania Supreme Court agreed to consider this case of statewide importance, and argument took place yesterday before the Supreme Court in Philadelphia.

At issue was whether the documentation of a routine response to a traffic incident is a “public record,” and therefore subject to public access under the Right to Know Law.  Attorney Stolinas made both policy and legal arguments for the release of such videos, noting in court that the challenges of recent years regarding police community relations provide a strong justification for the release of the videos.

The State Police took the position in court that such recordings would violate provisions of the Wiretap Act, but Attorney Stolinas noted that the Wiretap Act only applies to recordings made when the individual being recorded has a “reasonable expectation of privacy.”  Under the circumstances of the case, she argued that the individuals could not expect that their statements, made alongside a public roadway, were private or not being recorded by police.

In light of an argument made by counsel for the Pennsylvania State Police that release of video recordings would place a burden on police agencies due to the need for redaction of certain portions of the videos due to privacy concerns, Attorney Stolinas noted that technology is likely to improve, thereby reducing the burden of redaction.

As is its general practice, the Supreme Court has not indicated when a decision will be made in this matter.  News reports about the case can be found HERE, and HERE.

Possession of Marijuana in State College

On August 1, 2016, the State College Borough voted 5-2 to adopted the proposed ordinance that reduces the criminal penalty of possession of a small amount of marijuana (30 grams or less) from a misdemeanor offense to a non-traffic summary citation.  In Pennsylvania, the possession of a small amount of marijuana is a misdemeanor offense that is punishable by a fine of up to $500.00 and a sentence to imprisonment not to exceed 30 days.  This is the lowest misdemeanor penalty available under Pennsylvania law.  A summary offense is punishable by up to 90 days in prison and a fine of $300.00 The proposed ordinance calls for a fine of $250.00 unless the individual is under the age of 18 then the fine would be $350.00

THE BIG PROBLEM

The biggest problem with the ordinance is that does not address drug paraphernalia.  Drug paraphernalia, is defined by 35 P.S. 780-113(a)(32):

The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.

Paper used to smoke marijuana, a pipe used to smoke marijuana or simply the bag used to carry the marijuana could all be considered as paraphernalia.  Individuals charged with possession of drug paraphernalia face a fine of up to $2,500 and imprisonment up to 1 year.  Possession of drug paraphernalia is a misdemeanor offense and the ordinance does not reduce the penalties for this offense within the State College Borough. Accordingly, if you are charged with Possession of Drug Paraphernalia a criminal complaint would be filed, and if the charges were bound over the case would still proceed to the Court of Common Pleas, not the lower Magisterial District Court where summary offenses are resolved.

So what does this change in the grading of the offense mean?

A reduction from a misdemeanor to a summary offense would ordinarily be perceived as a lesser offense.  However, individuals must give consideration on the disposition of these offenses.  In order words, when pleading guilty to an offense the criminal charge will remain on the individual’s record.  Employers will undoubtedly look to a individuals criminal background when making a hiring a decision and a charge of possession of a small amount of marijuana would appear regardless of whether it is a misdemeanor or a summary offense as both are considered crimes in Pennsylvania.  Certain criminal offenses are eligible for an expungement. In Pennsylvania, a summary offense is eligible for an expungement after remaining crime free for 5 years. Typically, a first offense, misdemeanor charge of possession of a small amount of marijuana would be eligible for Accelerated Rehabilitative Disposition (ARD) and would be entitled to have the record expunged after 12 months and completion of the program.

Individuals should consult with an experienced attorney at The Mazza Law Group, P.C. to discuss the best disposition for their case.

DUI blood test – new development in law

New Developments in law from the Supreme Court involving a DUI blood test.

In a decision last week, the U.S. Supreme Court handed down a ruling which has already started to change the way DUI cases will be prosecuted and defended in Pennsylvania.

In Birchfield v. N. Dakota, the Supreme Court held that a driver placed under arrest under suspicion of DUI may not be subjected to a warrantless blood test to test for alcohol, but may be subjected to a warrantless breath test.  The Court held that the DUI blood test is much more intrusive than a breath test, and requires that police obtain a warrant.

Also at issue was whether a driver may be penalized criminally for failure to take a blood test.  Since a driver has a constitutional right to refuse a warrantless search, the court’s decision reasoned that such a refusal should not result in increased criminal penalties.  However, non-criminal consequences, such as a driver’s license suspension, may still be permitted.

In Pennsylvania, many jurisdictions utilize blood testing in DUI enforcement.  In requesting that a motorist consent to a blood draw, the police have been advising motorists that they may refuse, but they face increased penalties if convicted of the Driving Under the Influence of Alcohol after refusing.

This scheme is being challenged in DUI prosecutions across the state as violating the Supreme Court’s ruling which prohibits states from imposing criminal penalties (such as an increased sentence) when individuals refuse a blood test.  This case could even impact those who have agreed to take such a test to avoid such increased penalties.  Defense lawyers are preparing to file motions to suppress blood test results in many of these cases.

At The Mazza Law Group, the DUI defense lawyers have decades of experience. If you find yourself charged with a DUI or related offense, contact us for a consultation.

PCRA results in New Trial

Burglary Sentence of 7.5-15 Years Vacated and New Trial Awarded under Post-Conviction Relief Act (PCRA)

Defendant was accused of perpetrating a distraction burglary wherein an accomplice preoccupied the homeowner at the front door asking for help with car trouble while the Defendant entered the rear of the house and ran off with a television. Defendant and the accomplice were promptly charged with Burglary, 18 Pa.C.S.A.§ 3502(a) and Criminal Conspiracy, 18 Pa.C.S.A.§ 901(a)(1), both felonies, as well as two misdemeanors, Theft by Unlawful Taking, 18 Pa.C.S.A.§ 3921(a) and Receiving Stolen Property, 18 Pa.C.S.A.§ 3925(a).

Defendant took his case to trial though the accomplice was tried separately. At trial the Commonwealth called the accomplice to the stand to testify. The accomplice’s attorney made the assistant district attorney and judge aware she would exercise her rights against self-incrimination if asked any questions related to the burglary. The Defendant’s attorney, however, did not object. The Commonwealth was thus able to call the accomplice in front of the jury and ask about her participation in the burglary, to which she pled the Fifth.

Defendant was convicted of all counts and sentenced to an aggregate term of 7.5-15 years imprisonment. After direct appeals were exhausted with his first attorney, appellate attorney Steven P. Trialonas filed a Post-Conviction Relief Act Petition raising ineffective assistance of trial counsel. Specifically, attorney Trialonas claimed the Defendant was denied a fair trial when his attorney failed to object to the Commonwealth calling an accomplice to the stand as a witness in front of the jury once they are made aware that witness intends to invoke their privileges guaranteed by the Fifth Amendment. The logic of this argument is as follows: The jury likely assumed if the witness was worried about incriminating herself she must have done something wrong, and if she did something wrong the defendant also must have done something wrong since they were accomplices. The Court agreed with defense attorney Trialonas and granted the relief requested – throwing out the 7.5-15 year sentence, overturning the convictions, and awarding the Defendant a new trial. A copy of the Opinion is here.