The Pennsylvania Superior Court has decided the case of Commonwealth v. Hodges, holding that the defendant bears the burden of proving at sentencing that a “mutual combat” Simple Assault should be graded as a misdemeanor of the third degree instead of a misdemeanor of the second degree. This is an important decision because it makes it easier for the Commonwealth to obtain the conviction for the higher-graded Simple Assault, and that charge cannot be expunged or sealed.
What is the gradation of Simple Assault in PA?
Under Pennsylvania law, there are two types of Simple Assault. The most common variety of Simple Assault is a misdemeanor of the second degree. It simply involves knowingly, intentionally, or recklessly causing or attempting to cause bodily injury to another person. For example, punching someone in the face one time is usually going to be a Simple Assault unless very severe injuries occur. A misdemeanor of the second degree is punishable by up to two years in prison and a $5,000 fine. Simple Assault (M2) also cannot be expunged or sealed pursuant to a limited access order. Therefore, a conviction for Simple Assault as an M2 will stay on your record for life unless you obtain a pardon from the Governor.
Alternatively, Simply Assault can also be a misdemeanor of the third degree. The statute provides that when the Simple Assault was part of a mutual combat, then the court should instead grade Simple Assault as an M3. An M3 is punishable by up to one year in prison and a $2,000 fine. More importantly, Simple Assault (M3) is subject to Pennsylvania’s new limited access order law. This means that if you are convicted of Simple Assault (M3), you may petition the court to seal the conviction after ten years if you remain arrest-free during that period. Although this is not quite the same as an expungement, it drastically reduces the likelihood that potential employers are going to find out about the prior conviction. Law enforcement agencies and state licensing authorities will still have access to it, but the general public will not. Additionally, it is not possible to receive a state prison system for an M3, whereas an M2 could result in a state prison sentence because of the potential two year maximum.
Who has to prove whether the Simple Assault is an M3 or an M2?
The issue in Hodges is whether the Commonwealth or the defendant bears the burden of proving the degree of the Simple Assault. In Hodges, the defendant was convicted of Simple Assault by a jury. He appealed, arguing in the Superior Court that the trial court gave him an illegal sentence when it sentenced him on Simple Assault as a misdemeanor of the second degree because the Commonwealth never proved beyond a reasonable doubt that he had not engaged in a fight by mutual consent.
The Superior Court rejected this argument. It found that the issue of whether the charge should be graded as an M2 or an M3 is a sentencing issue which must be determined by the trial judge. Where the factfinder concludes beyond a reasonable doubt that the defendant has committed a Simple Assault, the default gradation is the misdemeanor of the second degree. However, the defendant may then introduce additional evidence or make argument at sentencing that the judge should reduce the gradation of the charge to the third-degree misdemeanor based on the mutual consent section. In Hodges, the defendant never made that argument at sentencing, and therefore, the claim was waived. Had the defendant made this argument at sentencing, it is possible that the court would have reduced the gradation of the charge. Unfortunately, his defense attorney did not.
Notably, the VUFA 6106 gun charge statute which prohibits carrying a concealed firearm without a license has a similar gradation scheme. By default, a violation of VUFA 6106 is a felony of the third degree. However, the appellate courts have held in prior cases that the defendant may ask the court to find that a VUFA 6106 conviction should be graded as a misdemeanor of the first degree if the defendant can show that he or she was otherwise eligible to obtain a concealed carry permit and was not facing any other charges at the same time. Thus, the Superior Court has held that it is the defendant's burden in these types of cases to show that the defendant is eligible for a reduction in gradation. It is extremely important that defense counsel be aware of this burden as it may be too late to make the argument on appeal as it was for Hodges.
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