Tag Archives: APPEAL

Do I turn myself into the magistrate if I appeal?

Q: I got a driving under DUI suspended license, but it isn’t suspended anymore. I’m off probation for my DUI. So, if I want to fight it do I still have to turn myself in on the given date at the magistrate. (West Mifflin, PA) A: I assume you are saying that at the time you were stopped and charged with 1543 (b), driving under a DUI suspension, the suspension period had expired beforehand and you think therefore that you should not be charged as you were not under suspension at the time of the stop? If so, and you obviously didn’t have your license in your possession, you can still not only be charged but can be convicted for not having RESTORED your driving privileges after the suspension period ran. The law is brutal in that it still views you as under suspension if you did not restore your license, even if your period of suspension has expired.

A 1543 (b) violation carries 60 days in jail, a $500 fine a one-year suspension for the first offense. In these circumstances, I have luck on occasion with the police working the charge out to a lesser offense that does not involve jail or a license suspension. You can restore your driving privileges by calling PennDOT or ordering from their website, a restoration requirements letter. It will require at least sending in the completed form and a fee, and, possibly, paying any unpaid fines or costs you have from OTHER cases in the system. The requirements letter will state what you need to do. I am not sure what kind of date you have before the magistrate, but if you were convicted and he gave you 30 days to turn yourself in, that sounds like you may be going to jail on that day. If you were convicted by him, you need to appeal. If you appeal to the Court of Common Pleas, Summary Appeals, the judge can give you house arrest. It sounds like you should take your papers to an attorney immediately.

Can I use this to win the trial?

Q: First-off the cop that was accusing me charged me with a wrong case number and was corrected by the judge. He then tried to say my registration and tags were from different vehicles and on his report literally everything he put down about my car info was wrong. I quickly proved he was wrong and on top of that he never asked me to take a test when he pulled me over but I’m charged with 1547b1. It makes no sense then he told the judge he pulled me over because I had illegal tent but my car has no tent at all he told me my plate was cruked but said some different in court in he never mentioned how he damaged my car trying to find drugs when I only had 2 packs of cigarettes in the car. I know that’s not how probable cause works it’s this because of my race. I feel like I was pressured to plead guilty in fully and did not understand what I was charged with. I did some research and it seems like I was falsely charged. (Pittsburgh, PA)

A: You can use it. However, if you present this argument in court the way you present it here, you will likely not win at trial. I think you need a lawyer to help fashion your story into a more understandable and cogent defense. When you say you were pressured to plead guilty, then you need to be aware that there will be no trial to present this defense unless you appeal within thirty days of your conviction or plea. I think you could greatly benefit from having a private lawyer or public defender review this situation.

Can she use text messages against us in court?

Q: We were doing a landscape job, the customer was always texting and threatening. After 7 days she once again flipped out. She ripped everything up. She texted threats to show up at his family and friend or have someone else show up. The police are charging her with criminal harassment. She sued in civil court. The judge told us we are not to bring anything up about the criminal case. She presented only the text messages that showed her in the best light. We couldn’t show our texts because they are connected to the harassment case. She presented her time line based on her surveillance which includes audio. The job was in the back yard of her home and nobody was home. She was listening to private conversations the whole time as well as recording without our knowledge. PA is a two-party consent. We tried bringing that up, but the judge said that would be criminal and we aren’t discussing that. Police and DA said it is not criminal because the law hasn’t caught up with tech. We wanted punitive damages, under Intrusion upon seclusion. Be we can’t be heard at all. I am so confused. We lost the civil badly, our hands were tide. What are my options, if any? (Pittsburgh, PA)

A: My advice is to appeal from what sounds like a District Justice award? You have thirty days. Once you file your appeal in Civil Arbitration of Allegheny County, she will need to file her complaint again. You will be able to file an answer to that complaint in which you raise your defenses. There was a decision this year handed down by the Superior Court of PA which makes it very difficult for a party to admit text messages in a hearing without proper authentication. You may benefit from this law. I would pursue the criminal case. You should contact a lawyer to help you with the appeal.

How do I appeal denial of child support?

Q: I was denied reconsideration by judge and the current child support modification is in place. My ex (divorce pending) retired at age 40 due to stress. Judge failed to consider earning capacity. As he is a healthy male with no physical or mental limitations. Please answer lost in pa

A: You need to file all the required appeals which would start with Exceptions to the Recommendations of the Hearing Officer. If the Judge affirmed the Hearing Officer, then you would file a reconsideration motion which it sounds like you have already done. Once the judge denies your reconsideration request, you have thirty days to appeal to the Superior Court. I would consult with an experienced Family Lawyer with who you can share all the facts and whom can advise you whether it is worth an appeal.

I received five tool violations in the mail

Q: I received 5 separate tool violations and am afraid I’ll have more coming. I exited the EZ-pass lane and thought I had funds. The cost of the tools are a few bucks each, but each separate violation has a 25.00 admin fee. Is it possible to appeal or get those waived or reduced? (Export, PA)

A:  I think you mean toll, not “tool”. I have never represented anyone for this offense. I however, committed a similar violation. I read my appeal rights on the back of the EZ fine material that came with the ticket, and appealed. I provided supporting documentation and my appeal was granted. I was spared. If you have a defense you may want to appeal.

Will new law would affect my son’s conviction?

Q: My son was convicted of rape and additional other charges back in 2002. He was 19 the alleged victim was 18. Both have Asperger’s, but he is on the higher end as he is educated. I had put him in several programs for him to reach his full potential. The court claimed the alleged victim to be unable to consent however the judge found her competent to testify. Her testimony didn’t indicate any acts of force or violence and only attempted oral sex. They prompted her with stuffed animals, crayons and coloring books so during the jury being taken to and from the courtroom the jurors could witness this crap. My son served 8 years in state prison and must now register. I would so like to have the truth revealed and his record cleared. I have letters and documents from that period from her father as well as family members who know she can consent and consented to whatever happened. She has since been arrested for solicitation in a public area. (New Stanton, PA)

A: As noted, the appeal deadlines have long passed. A direct appeal was due within 30 days of sentencing and a Post-Conviction Relief Act petition was due within one year of his conviction. As far as any Megan’s Law rules that he may be subject to, you should call his parole or probation officer to see what is required of him. If he would fail to register or report as required, he could be incarcerated again so it is very important that you and he know what is expected of him. It may be a long shot but there is a rule regarding after discovered evidence that will, in certain circumstances, allow a new trial. If you feel that recently discovered evidence would prove that she had capacity to consent back in 2002, and this evidence was not available to you until now, you may want to review that information with a criminal appeals attorney.

Please Help! Criminal Record Expungement

Q: Seven years-ago I took a plea deal. I was 20 years old and made a horrible mistake. This was the one and only time I ever got in trouble. When I took the deal, no one explained to me I would be in ineligible for expungement. Not my lawyer, not the DA, not the judge. I never would have never taken the deal if I had known this. What are my option? Can I do anything? All advice is greatly appreciated. Thank you in advance. (Carrick, PA)

A: I suggest confirming what crime you pleaded guilty to, so you are certain it is a felony. You can do this by ordering your criminal history from the PA State Police. Under the present state of the law, a felony cannot be expunged. You are well out of your appeal range. You must appeal within thirty days of your sentencing. Or, under the Post-Conviction Relief Act, you have one-year to file. You may want to consult with a criminal appeals attorney, but my thought is that it is too late to challenge the appeal. I know of no law that requires anyone to inform you at the time of your plea that you will be ineligible to expunge. The fact that you are entering a guilty plea to a crime should put you on notice of a conviction, although, I understand what you are saying. I always inform my clients that their conviction will result in a record which they may not be eligible to expunge.

Lawyer ignored us. Do we have a case?

Q: My fiancé took a plea 3-7 for theft and person to possess a firearm. We had been trying to contact his lawyer since October when he took the plea. The gun was mine and lawyer promised all kinds of stuff but hardly spent any time on our case or with us even missing court dates. When my fiancé took the plea he was told he had no other choice and that he had to say he spent enough time with lawyer and was satisfied or he would go to trial lose and get 20 years. Well, after taking the plea we tried to contact the attorney numerous times. His office phone disconnected and cell phone calls were ignored. He was supposed to be requesting my gun back as well as my fiancés personal possessions that were taken by police. The lawyer (which we had suspected) was just arrested for drug delivery and distribution. He has a case against him with the PA Disciplinary Board. What are our rights now?

A: If it is the intention of your boyfriend to withdraw his plea and get back in to court, there are two options for him. A direct appeal to the Superior Court within 30 days of sentencing or a Post Conviction Relief Act Petition (PCRA), which must be filed within one year. I would consult with an appellate criminal defense attorney as soon as you can. If any missed deadlines for appeals can be attributed to the lawyer’s problems, it may work to your boyfriend’s advantage in regard to appeals under a theory of ineffective assistance of counsel.

Can new evidence get me a new trial?

Q: If you just now realize that your phone has information in it to prove you didn’t do the crime can you use that as new evidence? I was on the phone during the same time the victim claims to have been attacked. I forgot to bring it up so it wasn’t used for trial. Can it be used now for new evidence to get a new trial? (Pittsburgh, PA)

A: Newly discovered exculpatory evidence is admissible and may be used to get a new trial. However, it may not be “new” evidence if you had access to it and knew about it at the time. Your best bet would be to contact a local criminal defense attorney to discuss all of the facts.


Can PennDOT do this?

Q: Did not send in my PA license after a DUI in Maryland. Had no idea it I was required to until I received a letter from PennDOT. Stated today PennDOT has sent numerous letters to my home requesting my license to be sent in. I was living in Baltimore at the time and they had sent the letters to my mother’s house in Pennsylvania that was sold four years prior. In addition to sending the letters to someone else is home my mother had passed away in the meantime. Now PA Is requiring 4 more months of suspension which would make it one year from the incident. In addition to that they are requiring I have installed in ignition device for an additional year. At that time of the incident I was traveling to and from Baltimore Maryland to Pittsburgh Pennsylvania as part of my job responsibilities as a project manager for a construction company with various projects in both states. This coming week I served my one year suspension.

A:  Fighting PennDOT is tough. All the rules are against you. PennDOT will argue that you had a legal duty to change your address with the Post Office and to notify PennDOT of the address change. Obtain your driver’s license and restoration letter from PennDOT-you can call them or go on-line. Review the facts and the documents with an attorney to see if it is worth filing a motion Nunc Pro Tunc (for late appeal) to address any of the issues. If you do have to send your driver’s license in to PennDOT, follow the procedures on their website (with DL Form and restoration fee enclosed) by certified mail, return receipt.