Philadelphia Criminal Defense Blog

Gun Charges, Criminal Procedure Zak Goldstein Gun Charges, Criminal Procedure Zak Goldstein

Attorney Goldstein Obtains Dismissal of Bucks County Felony Charges for Making a Materially False Statement in Connection with a Firearm Purchase

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, obtained the full dismissal of felony charges at the preliminary hearing for a client who was charged in Bucks County with allegedly making a materially false statement on the background check application that he filled out in an attempt to buy a firearm.

In the case of Commonwealth v. M.S., prosecutors alleged that M.S. went to a gun show in Bucks County to try to buy a gun and provided false information about his criminal record on the form.

How does the background check process work when buying a gun in Pennsylvania?

Every purchase of a firearm in Pennsylvania requires the purchaser to fill out two background check forms – one for the Pennsylvania State Police and one for the ATF. The state police form asks a number of questions such as whether the purchaser is ineligible to buy a gun due to certain prior convictions (generally those enumerated in the felon in possession of a firearm statute, 18 Pa.C.S. § 6105)  as well as questions about prior 302 mental health commitments and convictions for domestic violence.

The ATF form asks whether the purchaser has ever been convicted of a crime punishable by more than a year in jail. For state court misdemeanors, the definitions section on the back of the form clarifies that the question only applies to a state court misdemeanor punishable by more than two years in jail, meaning that a non-domestic violence misdemeanor of the second degree in Pennsylvania is not a problem, but a first degree misdemeanor is. Notably, the forms also require the purchaser to confirm that they are purchasing the gun for themselves rather than someone else. There is an exception where the purchaser seeks to purchase it for a close family member who is legally eligible to own a firearm (such as a spouse or child).

In this case, the police claimed that M.S. lied on the form by checking off that he did not have a conviction for a crime punishable by more than a year because he had a misdemeanor of the first degree theft conviction from more than thirty years ago. Technically, according to the language of the form and the federal law (18 U.S.C. § 922(g)), this M1 theft conviction made M.S. ineligible to possess a firearm.

What happens if you fail the background check when trying to buy a gun?

The gun seller ran M.S. through the State Police background check system, the system recognized his old conviction, and he was not permitted to purchase the firearm. Most people do not realize, however, that the system then notifies the state police about the attempted purchase, and the state police frequently file felony charges under 18 Pa.C.S. § 6111. The ATF could also file federal charges along with the U.S. Attorney’s Office. § 6111 makes it a felony to make a materially false statement on either the state police or ATF background check forms. In order to prove a violation of the statute, however, the Commonwealth has to show 1) that the defendant was the person who actually filled out the form, 2) that the statement was in fact false, 3) that the statement was material, meaning important, and 4) that the defendant knew it was false and did not just make a mistake.

Obviously, the questions are confusing. The state form asks about crimes listed in § 6105, and people often do not know exactly of what they were convicted, particularly where the conviction is older.  For someone who has a prior robbery or aggravated assault, there is probably not going to be a strong argument that the person was confused. But where someone has an old misdemeanor or a few DUIs, they may well have not realized that they were ineligible to possess a firearm.

Similarly, the federal form asks whether the person was convicted of a crime punishable by more than a year in prison, and the form then actually defines that as a state court misdemeanor punishable by more than two years in prison. This question is particularly confusing as a non-lawyer is very unlikely to know how much time they could have received for an old, less serious conviction. Again, for a robbery or an aggravated assault, there is not going to be as strong of a mistake defense, but for an old misdemeanor theft conviction, it is not unreasonable to suggest that someone could have been unaware of the gradation of the conviction or how much time that gradation could have carried if they did not actually receive the maximum or any jail time at all.

In this case, M.S.’s old theft conviction carried up to five years in prison, making him ineligible to possess a firearm under federal law. It did not make him ineligible under state law. Accordingly, the police charged him with lying on the ATF form, which is a felony.

M.S. retained Attorney Goldstein for the preliminary hearing. On the day of the hearing, the Commonwealth offered to reduce the charges to a third-degree misdemeanor of unsworn falsification for a one year period of probation. M.S. rejected the offer and decided to have a preliminary hearing. The police officer testified that he received a package from the state police indicating that M.S. had tried to buy a gun, M.S. was ineligible due to the old theft conviction, and that theft conviction was punishable by up to five years. The police officer also confirmed that he spoke with M.S., and M.S. admitted to trying and failing to buy the gun for self-defense purposes. He said he did not realize the theft conviction made him ineligible.  

Dismissal of the Charges

Attorney Goldstein then argued for dismissal of the charges. First, under the recent Third Circuit Court of Appeals case of Range v. Attorney General, a lifetime prohibition on gun ownership for someone convicted of an old state court misdemeanor appears to be unconstitutional. There, the Third Circuit, in an en banc, opinion, held that Range should be permitted to buy a gun because his only conviction was a nearly thirty year old conviction for M1 food stamp fraud. Given how minor the conviction was, a lifetime prohibition on gun ownership violated the Second Amendment.

This case was extremely similar except the conviction was older and Range had sued for an injunction allowing him to buy a gun rather than argued that he could not be prosecuted. Attorney Goldstein argued that the statement on the form, even if not true, was not material because M.S. would have been eligible to possess a gun under the Range decision.

Second, Attorney Goldstein also argued that M.S. had clearly been confused by the wording on the form. Misdemeanor theft is not a bar to gun ownership under 18 Pa.C.S. § 6105, and M.S. had not actually received any time in prison. He had also been cooperative with the police and told them he had made a mistake. If he had been trying to buy a gun illegally, he could have purchased it on the street or lied to the police. Accordingly, it was very unlikely that he knew he had been convicted of a state court misdemeanor punishable by more than two years in jail. He did not actually get any jail time, and he did not even receive more than two years of probation.

Fortunately, the Magisterial District Justice agreed with the defense arguments and dismissed all charges. Instead of facing trial on felony charges in the Court of Common Pleas, M.S., who had not been arrested in over thirty years, can return to work and continue being a law-abiding citizen. This case, however, highlights the importance of being very careful when filling out these forms. If you have any doubts about whether you are eligible to possess a firearm, you should not use the form to “test” that eligibility. Instead, you should speak with a lawyer about your prior record. Additionally, if you have filled out the form and made a mistake, you should speak with an attorney right away before the police come calling. An attorney may be able to help you head off the investigation or help you with responding to it in order to avoid charges and prosecution for a felony offense. The form should never be used as a way to test whether or not you are eligible to buy a gun as answering the questions incorrectly can lead to felony charges.

Facing criminal charges or appealing a criminal case? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.  

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Drug Charges, Gun Charges, Criminal Procedure Zak Goldstein Drug Charges, Gun Charges, Criminal Procedure Zak Goldstein

PA Superior Court: Police May Drive Defendant’s Car to Secure Location While They Get Warrant

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Floyd, granting the Commonwealth’s appeal and holding that the trial court erred in granting a motion to suppress drugs and guns where a Philadelphia police officer testified that he saw the defendant engage in two hand-to-hand transactions. The Court also held that the officers did not violate the defendant’s rights by driving the defendant’s car to a secure location to await the signing of a search warrant.

The trial court had granted the motion to suppress, finding that the police should not have driven the car themselves before they got the warrant and that the two alleged hand-to-hands did not provide probable cause to arrest the defendant and search the car. The Superior Court disagreed. The crux of the appeal was the admissibility of evidence seized from Floyd's vehicle following his arrest for alleged involvement in illegal narcotics transactions.

A member of the Philadelphia Police Department’s Narcotics Strike Force observed the defendant engage in suspicious transactions on September 9, 2021. The defendant was seen accepting money from two individuals and then handing them small objects. He went in and out of the car in question before each alleged transaction. One of the alleged buyers was not stopped, so the police could not confirm whether that person had purchased drugs. The second person, however, was stopped and searched by police, and she had containers of crack cocaine on her.

Based on these observations, the police arrested and searched the defendant. They also obtained a search warrant for his vehicle. Instead of having a tow truck move the car, one of the officers drove the vehicle to a secure location while they obtained the search warrant. They claimed that they did not actually search the vehicle en route to that location or before they got the warrant. The eventual search of the car resulted in the discovery of drugs and a gun with an obliterated serial number.

The defense challenged the seizure and subsequent search of Floyd's vehicle, filing a motion to suppress and arguing that the police's initial warrantless entry into the vehicle, to move it to a secure location pending the approval of a search warrant, violated the defendant’s constitutional rights. The trial court agreed and suppressed the evidence obtained from the car.

On appeal, the Superior Court held that the police action was justified under statutory authority, which allows for the seizure and relocation of a vehicle under certain conditions, such as when the vehicle's owner or user is in police custody, the vehicle is on public property, and there is probable cause to believe the vehicle contains evidence of a crime. The court found that the evidence had an independent source—the observations made by Officer Outterbridge prior to the vehicle's relocation—which validated the search warrant and the subsequent discovery of the narcotics and firearm.

The statute that allows the police to move a car under certain conditions is 75 Pa.C.S. § 3352(c), specifically subsection (c)(3). This provision is part of the Pennsylvania Vehicle Code and grants police officers the authority to remove or cause to be removed a vehicle to a place of safety or to the place of business of the operator of a wrecker or a nearby garage under the following circumstances:

The vehicle has been reported stolen or taken without the consent of its owner.

The person or persons in charge of the vehicle are physically unable to provide for its custody or removal.

The person driving or in control of the vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.

The vehicle is in violation of section 3353 (relating to prohibitions in specified places), except for overtime parking.

The vehicle has been abandoned, as defined in the title.

In this case, subsection (c)(3) was particularly relevant. This subsection applies when the person in control of the vehicle is arrested for an offense requiring that they be brought before an issuing authority without unnecessary delay. The statute gives police the authority to remove the vehicle to ensure its safety and the integrity of potential evidence, especially when the vehicle is on public property and there exists probable cause to believe it contains evidence of a crime.

Here, the Superior Court reasoned that the courts have held for about 15 years that one observation of a hand-to-hand transaction in a designated enforcement area or high crime area provides experienced narcotics officers with probable cause to stop a suspect and search them. In this case, the officer testified to seeing two hand-to-hand transactions. The first person had not been stopped, and the second person testified at the suppression hearing that she in fact had drugs on her but did not buy them from the defendant. Unfortunately, she did not testify that she did not in fact give anything to receive anything to or from the defendant. She just said she did not get the drugs from him. And the police testified that the defendant went in and out of the car before both alleged transactions. Thus, the Superior Court found probable cause to arrest the defendant and search him as well as to support the search warrant for the car. Based on the above statute, the police then had the right to move the car. Although it is better for them to use a tow truck to move the car, the statute does not explicitly direct that the police may not move it themselves.

This case presents two problems for the defense.

The Takeaway

First, this was really a credibility motion to suppress. The defense strategy was clearly to argue that the officer had not actually seen two drug transactions given that the defense called a witness, one of the alleged buyers, to say that she did not actually buy drugs from the officer. The trial judge, however, did not explicitly say that they were ruling based on credibility. If the trial judge had put a credibility ruling on the record and indicated that they did not believe the officer’s testimony, then it would have been virtually impossible for the Commonwealth to appeal. The judge, however, did not do that.

Second, the defense witness was not asked whether or not she gave anything to the defendant or took anything from him. This allowed the Superior Court to reason on appeal that she may have had an interactions with the defendant that looked like a drug transaction even if her testimony that she did not buy drugs from him was true. Probable cause looks at what a reasonable officer would believe in terms of whether they would find evidence or believe they had observed a crime – it does not require proof beyond a reasonable doubt that a crime actually occurred. Therefore, the Superior Court was able to grant the Commonwealth’s appeal. This ruling therefore highlights the importance of really arguing credibility and asking for a clear ruling on that issue if the basis of the motion is credibility and also making sure that the witnesses are asked the right questions during the hearing.

Finally, the case allows police behavior which is ripe for abuse. It is difficult to believe that narcotics officers, who typically do not wear body cameras in Philadelphia, would not at least look around the car a little bit while driving it to the station, and the next case will probably involve some claim by police that they had to do an inspection to make sure there was nothing that could harm the officer during the drive. The law is clear that police must get a warrant before searching a car absent a limited number of exceptions which did not apply here, but here, the officer drove the defendant’s car before the police got the warrant. To really comply with the rules, they should have had a tow truck tow the car. Hopefully, the defendant will pursue further appeals on this issue.

Facing criminal charges or appealing a criminal case? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.  

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Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

Facing criminal charges or appealing a criminal case? We can help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.  

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The New 2024 Pennsylvania Sentencing Guidelines

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

A major update to the Pennsylvania Sentencing Guidelines went into effect on January 1, 2024. The new guidelines significantly revamp Pennsylvania’s system for sentencing defendants following a conviction at trial or guilty plea. The guidelines had largely been handled the same way since their creation, but now, the Pennsylvania Commission on Sentencing has significantly changed the way prior record scores are calculated and created a very different sentencing matrix. The old guidelines still apply to offenses committed before 2024. The new 8th edition of the guidelines apply for offenses committed on or after January 1, 2024.

What are the sentencing guidelines?

As an introductory reminder, prior to sentencing a defendant in Pennsylvania state court, a judge must calculate the guidelines for the offense. Every offense has an offense gravity score, and every defendant has a prior record score. The judge must correctly determine the offense gravity score (OGS) and the defendant’s prior record score (PRS). Where those two numbers meet on the sentencing guidelines matrix then provides the judge with a recommended range for the minimum sentence. With the exception of very short sentences (like 30 days in jail for possession of marijuana), every sentence in Pennsylvania must have a minimum and a maximum. The maximum must be at least double the minimum in order for the sentence to be legal.

Under Pennsylvania’s guidelines system, the judge must correctly calculate the sentencing guidelines and then consider sentencing the defendant within the range provided by the guidelines for the defendant’s minimum sentence. Ultimately, the judge does not have to sentence the defendant within the guidelines. The judge could decide there is something less serious about the case and go below the guidelines or something more serious about the case and go above the guidelines. Guideline sentences, however, are very difficult to appeal. It is generally easier to appeal a sentence when the judge departs from the guidelines.

The basic idea of the new guidelines is the same; every offense will have guidelines based on an offense gravity score and a prior record score. Calculating those numbers, however, has become a little bit more complicated.

The Offense Gravity Score

The offense gravity score is relatively easy to determine. The Pennsylvania Commission on Sentencing provides a list of offenses, and each offense has a numerical offense gravity score that goes with it. First, the defense attorney must determine the offense gravity score for each offense charged by reviewing the list of offenses in the complaint or bills of information. It is important to look at the specific subsection charged as different subsections may have different offense gravity scores.

Second, the attorney must determine whether any enhancements apply. The two most common enhancements are the deadly weapon possessed and the deadly weapon used enhancements. They apply when a deadly weapon like a gun or a knife was either used or possessed during the commission of the crime.

If a deadly weapon was possessed but not used, then the offense gravity score will be two points higher.

If the deadly weapon was used, then the offense gravity score will be three points higher.

The deadly weapon enhancements do not apply if the statute itself always involves the use of a deadly weapon because the use of a deadly weapon is an element of the offense. Possessing an instrument of crime, prohibited offensive weapons, possession of a weapon on school property, assault with a deadly weapon, and violations of the uniform firearms act do not require the application of the deadly weapon enhancements because the possession or use of a deadly weapon is part of the offense.

There are three other enhancements which are less likely to apply.

First, there is a school zone enhancement. If a controlled substance was delivered or possessed with the intent to deliver in a school zone, then there is a one point addition to the offense gravity score.

Second, there is a criminal gang enhancement of two points.

Third, there is a domestic violence enhancement of two points. If the defendant committed the offense against a family or household member, then the enhancement may apply.

It is important to accurately calculate the offense gravity score. Further, the calculation of the correct offense gravity score may be subject to litigation. If the Commonwealth alleges that a particular object was a deadly weapon but the object was not a gun or a knife, it may be possible to argue that the object was not actually a deadly weapon.

The defense should carefully review the pre-sentence investigation and calculation of the guidelines and object if the guidelines seem too high or are based on allegations the Commonwealth may not be able to prove. It is important to remember that the Commonwealth bears the burden of establishing that an enhancement applies by a preponderance of the evidence. It is not necessarily the defense attorney’s job to prove that it does not apply. The Commonwealth, however, may use circumstantial evidence in order to meet this burden.

The Prior Record Score

Second, the defense attorney must properly calculate a defendant’s prior record score. The system for determining the offense gravity score did not change significantly with the enactment of the new guidelines, but dealing with the prior record score is very different. Instead of looking at each charge for which a defendant has been convicted and assigning points to that charge and then adding those points up, the prior record score will now be based on the most serious offense of conviction for each case where a defendant was convicted of a crime.

There are four categories of offenses.

First, there are misdemeanors which have not been designated as serious crimes (POG1 offenses).

Second, there are third degree felonies and unclassified felonies (like possession with the intent to deliver) which have not been designated as serious crimes (POG2 offenses).

Third, there are serious crimes, first-degree felonies, and second-degree felonies (POG3 offenses). VUFA offenses and SORNA offenses are generally considered serious crimes that fall within the third category.

Fourth, there are crimes of violence which would otherwise be considered strike offenses (POG4 offenses). These include offenses like first-degree felony aggravated assault, attempted murder, rape, IDSI, and certain robberies and burglaries. There are other offenses which fall within this list. They are defined in 42 Pa.C.S. § 9714(g).

In calculating the prior record score, the defense attorney must determine which prior offense on the defendant’s record is the most serious. The attorney should then determine how many offenses of the same seriousness fro which the defendant has been convicted. The number of offenses for which the defendant has been convicted of the same seriousness will then determine the defendant’s prior record score based on where that number falls on this chart.

New 2024 Prior Record Score Chart

The Prior Record Score Matrix

For example, using the above chart, a defendant with two misdemeanors (which go under the POG1 category) will fall under prior record score one.

A defendant with two F1 robberies (which are crimes of violence that fall under POG4) will have the highest prior record score of four.

A defendant with three prior possession with the intent to deliver cases, which fall under POG2, will fall under prior record score three.

A defendant with two VUFA convictions (POG3), would have a prior record score of three.

Lapsing of Convictions for the Prior Record Score

Under the old guidelines, convictions were permanent. Even if a defendant was convicted of an offense fifty years ago, the offense would still count towards the defendant’s prior record score unless the offense was a juvenile adjudication and a certain amount of time had passed in between the adjudication and new offense. Now, convictions will no longer count if a defendant goes a certain amount of time in between arrests.

Juvenile Adjudications

First, juvenile adjudications lapse relatively quickly.

Juvenile adjudications for POG1 offenses (mostly misdemeanors) do not count towards the prior record score.

Juvenile offenses in POG2 (mostly third-degree felonies and PWIDs) do not count once the defendant turns 25.

POG3 offenses (felony ones and felony twos that are not crimes of violence) do not count if the defendant is “crime-free” for ten years.

Finally, POG4 adjudications (crimes of violence) do not count after 10 years crime-free if they were committed when the defendant was between 14 and 16 or after 15 years crime-free if the defendant was 16 or older.

Adult Convictions

Under the old guidelines, adult convictions counted forever. Now they may lapse after a certain amount of time.

POG1 offenses lapse after ten years from the conviction date even if the defendant was not crime-free.

POG2 and POG3 offenses lapse after 15 years of being crime-free.

POG4 offenses lapse after 25 years of being crime-free.

The time period for being crime-free runs either from the date of release from incarceration or the date of the sentence if the defendant received probation.

Again, if there is a dispute, the Commonwealth bears the burden of proving that lapse should not occur.

The following is the definition of a crime-free period:

‘‘Crime-free period.’’ Following a conviction and sentence and subsequent release to the community, the completion of a prescribed period of time without commission of a new felony or misdemeanor, for which the person pleads guilty or nolo contendere or is found guilty. For non-confinement sentences, release to the community begins on the date of sentencing; for confinement sentences, release to the community begins on the date of initial release on parole, or release following completion of the confinement sentence, whichever is earlier.

The New 2024 Pennsylvania Sentencing Guidelines Matrix

Once the criminal defense attorney has calculated the offense gravity score and prior record score, the next step is to see where those numbers meet on the below matrix. That number then provides a recommended minimum sentence for the judge to consider. The judge may go higher or may go lower, but the judge must properly calculate the guidelines and consider them. The judge must put the guidelines on the record, and if the judge decides to go above or below the guidelines in sentencing the defendant, the judge must announce the reasons for the departure on the record at the time of sentencing. The failure to properly calculate the guidelines or put the reasons for a departure on the record could be the basis for a successful appeal.

New 2024 PA Sentencing Guidelines Matrix

The New 2024 Pennsylvania Sentencing Guidelines Matrix (8th Edition)

A Judge May Depart From the Guidelines

Finally, a judge may depart from the guidelines. Judges may consider the following factors when deciding whether to depart:

(i) Nature and circumstances of the offense:

(A) Neither caused nor threatened serious harm.

(B) Conduct substantially influenced by another person.

(C) Acted under strong provocation.

(D) Substantial grounds to justify conduct.

(E) Role in offense.

(F) Purity of controlled substance.

(G) Abuse of position of trust.

(H) Vulnerability of victim.

(I) Temporal pattern.

(J) Offense pattern.

(K) Multiple offenses in a criminal incident.

(ii) History and character of the person:

(A) No history of criminal conduct.

(B) Substantial period of law-abiding behavior.

(C) Circumstances unlikely to recur.

(D) Likely to respond affirmatively to probation.

(E) Imprisonment would entail excessive hardship.

(F) Accepts responsibility.

(G) Provides substantial assistance.

(H) Compensated victim or community.

(I) Character and attitude.

(J) Treatment for substance abuse, behavioral health issues, or developmental disorders or disability.

(2) Unless otherwise prohibited by statute, the consideration of validated assessments of risk, needs and responsivity, or clinical evaluations may be considered to guide decisions related to the intensity of intervention, use of restrictive conditions, and duration of community supervision.

(3) Adequacy of the prior record score. The court may consider at sentencing prior convictions, juvenile adjudications, or dispositions not counted in the calculation of the PRS, in addition to other factors deemed appropriate by the court.

Obviously, this is a big list of reasons for a potential departure. At the end of the day, it is important to remember that the new guidelines, like the old ones, are not mandatory minimums. They provide the judge with a starting point for the potential sentence. In some counties, the guidelines are treated almost as mandatory minimums and it is rare to see judges go below or above the guidelines. In others, the guidelines are routinely calculated but then ignored. Additionally, the guidelines do not tell the judge whether to impose consecutive or concurrent sentences for different offenses. It is also not clear yet whether separate cases which were consolidated and disposed of at the same time will count as one case or two cases for calculating the prior record score, so some of these things will still be subject to litigation. Either way, it is important to correctly calculate the guidelines as they will give the defendant an idea of what they are facing if they are convicted and the improper calculation of the guidelines at sentencing could be the basis for an appeal or PCRA claim.

Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

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