Summary: Where a person is charged with criminal solicitation, the defendant must have the specific intent to commit the underlying offense. Therefore, unless the defendant meant to commit or facilitate the underlying crime, s/he can’t be found guilty of solicitation.
Illustration: Rape of a child under the age of 13 is a strict liability crime. In other words, no matter how old you thought the victim was, you will be found guilty if you had sexual contact with someone under the age of 13. For solicitation to commit rape of a child, however, the defendant has to intend to induce someone to have sex with someone under the age of 13. Since Hacker did not realize the victim was under the age of 13, she could not have been guilty of solicitation to commit rape of a child under the age of 13.
Topic: Escape-What is a detention for escape purposes
Summary: Where law enforcement has put on a display of force and attempts to “restrain the liberty” of the defendant, there is a detention. Example: Santana was asked to come off of a roof to speak to the police. Santana jumped off the roof, stiff-armed an officer who tried to restrain him, was told to stop, and ended up getting “tased.” In this case, the Superior Court found there was a detention.
Commonwealth v. Morris2008 PA Super 235 Topic: Enhanced Sentencing-Homicide Summary: For sentencing purposes, where two murders are tried together, the second charge may be used to give the defendant a mandatory life sentence under 42 Pa.C.S.A. § 9715.
In the Interest of O.J.2008 PA Super 234 Topic: Motor Vehicle Stop-Vehicle Search
Brief Legal Summary: If the driver or passenger of a vehicle makes furtive movements in a vehicle, the police may search the area where the movements were directed for their safety:
Case Summary: The police observed O.J.’s vehicle going 40mph in a 25 mph zone and failing to stop at a traffic light. After activating their lights and sirens, the officers gave chase. After O.J.’s vehicle stopped, the officers witnessed furtive movements around the area of the vehicle’s console. The officers removed O.J. and his passenger from the vehicle and patted them down for weapons. No weapons were recovered from their persons. After securing O.J. and his passenger in their patrol car, the police searched the center console and recovered a quantity of drugs. O.J. was charged with possession of a controlled substance and possession of a controlled substance with intent to deliver. Defense counsel filed a motion to suppress. At the suppression hearing, the officer testified that the police “normally” search the area for weapons when they observe furtive movements due to a fear for their safety. The trial court ruled in favor of O.J. and suppressed the evidence. The Commonwealth appealed.
The Superior Court held that:
1. Where an officer observes furtive movements in a vehicle, s/he is justified in searching the area where the furtive movements are directed in the interest of officer safety
Commonwealth v. Green 2008 PA Super 220 Topic: Sentencing
Summary: Where a trial court fails to distinguish a drug dealing case from a garden variety drug dealing case, there is not sufficient justification to sentence someone to five times the aggravated range.
Commonwealth v. Leidig,Pa. Supreme Court, J-24-2008
Topic: Plea Bargain Notifications-Megan’s Law
Brief Legal Summary: The failure to be warned about the Megan’s Law registry requirements will not invalidate a guilty plea.
Case Summary: Appellant Todd Leidig entered an open nolo contendere plea to aggravated indecent assault in September 2002.A full oral colloquy was given during the plea hearing.Leidig was sentenced to 48 to 120 months incarceration and was advised of the ten-year Megan’s Law registration requirement that was in effect at the time.Leidig was told by the Commonwealth and by his attorney that he was not subject to the lifetime Megan’s Law registration requirement because he committed the offense before Megan’s Law II took effect in 2000.
After Leidig was sentenced, he was informed by the parole department that he would be subject to the Megan’s Law II lifetime registration requirement.Leidig challenged his guilty plea on the grounds that he was not informed of the lifetime Megan’s Law registration requirement, which meant that his plea was not knowing or intelligent.
The Supreme Court concluded:
The Megan’s Law registration requirement is not a direct consequence of the guilty plea, but a collateral consequence.Therefore, this is not a basis for relief that would permit the court to withdraw his guilty plea.In other words, if the Megan’s Law registration requirement were an actual punishment and not a civil requirement, notice would have been necessary.Since it is a civil requirement, notice is not necessary.
Brief Legal Summary: For the purposes of 3804(b)(2), ARD is considered a conviction on the date of acceptance.
Case Summary: Appellant William Joseph Love was convicted of DUI and sentenced as a repeat offender under 75 Pa.C.S.A. § 3806(b).
Love was arrested and charged with DUI in February 2006.He was accepted into the ARD program in June 2006.In September 2006, Love was arrested and charged with a second DUI.Love was removed from the ARD program in March 2007.In September 2007, Love was found guilty of the September 2006 DUI.Love entered a guilty plea to the February 2006 DUI.Love was sentenced on his September 2006 DUI in November 2007 as a repeat offender.
According to 75 Pa.C.S.A. § 3806, a defendant who is convicted of a second or subsequent DUI within a ten year period is subject to an stricter punishment.The trial court reasoned that under 75 Pa.C.S.A. § 3806(a)(1) and (b)(1), Love’s first DUI, which resulted in his acceptance into ARD, was considered a conviction as of the date he was accepted into ARD.On appeal, Love argued that the trial court erred in considering his ARD a conviction as of the date he was first accepted into the program rather than the date he entered his guilty plea for that offense.
The Superior Court concluded:
For the purposes of 75 Pa.C.S.A. § 3806(b), a DUI which results in the acceptance into an ARD program is considered a conviction as of the date the defendant is accepted into the ARD program.Simply put, acceptance, not fulfillment, triggers the repeat offender provision.
Commonwealth v. Mann2008 PA Super 215 Topic: Allocation of Jail Time-Parole Violator
Brief Legal Summary: If the defendant has a detainer and has failed to post bond on his new charge, the time in must go to the new charge. If the new sentence is shorter than the time served, the sentencing court must indicate that time is served for the excess time to go the parole violation.
Case Summary: Appellant Steven Mann was convicted of DUI, possession of drug paraphernalia, and terroristic threats. At sentencing, counsel requested and the trial court ordered that the time Mann spent in jail would not be applied to his new charges, but to his parole violation. The Superior Court held that “the sentencing court must include credit for time served in the order imposing sentence for an appellant’s new offenses.”
In this case, Mann was previously convicted and sentenced to four to eight years in prison in 1998. He was paroled in 2004. While on parole, Mann was arrested and charged with DUI, possession of drug paraphernalia, and terroristic threats in 2005. The state parole board lodged a detainer. Mann was convicted after a jury trial and sentenced to one and half to three years in prison in 2006. On the request of Mann’s attorney, the trial court ordered that none of the time Mann served since his 2005 arrest would go to his one and a half to three year sentence and that the time would go to his parole violation. The parole board sentenced Mann to nine months of back time.
The Superior Court concluded:
The trial court erred by not giving Mann credit for the time served.
The power to give time served rests solely with the trial court.
If a defendant has an active detainer and has failed to post bond on his new charges, the time in must first go to the new charges.
If there is extra time, the trial court must specify “time served” for the excess time to be applied to the parole violation.
The criminal defense attorneys of Bickerton and Bickerton are available for case consultations 7 days a week.
Call 412.596.8124 for a free case consultation today.
Bickerton & Bickerton represents clients throughout Western Pennsylvania including the following counties: Allegheny, Armstrong, Beaver, Butler, Clarion, Crawford, Fayette, Greene, Lawrence, Mercer, Washington, and Westmoreland.
Disclaimer
The contents of this blog are the observations, opinions, and intellectual property of the authors and do not constitute legal advice or create an attorney-client relationship. All rights are reserved.
