Trial

Mitigated Sentences for Prescription Drug Convictions

When Bucks County residents are convicted of committing serious drug offenses, their sentences will most likely be determined by Pennsylvania’s drug crimes sentencing guidelines. Sentencing guidelines include suggested minimum sentences for specific drug crimes as well as suggested maximum sentences for specific offenses.

Although there are guidelines for minimum and maximum sentences, those who are accused of committing drug crimes also need to understand that each case is unique and defendants may still be able to fight for sentences that are below minimum sentencing guidelines.

For example, a doctor from Philadelphia who was convicted last year of illegally selling prescription drugs has avoided being sentenced for the crimes based on minimum and maximum sentencing guidelines. The doctor is 79 years old and he has two adult daughters who have been in wheelchairs all of their lives as a result of a neurological disorder. After reviewing the man’s case, a judge decided that sentencing the man based on sentencing guidelines was not appropriate in this situation.

Although the man’s daughters have been able to go to college on their own and have earned advanced academic degrees, the man’s attorney argued that the doctor’s daughters are still dependant on their father and mother. In court, the man’s three daughters asked that the judge be lenient when sentencing their father. The man also suffers from several health complications, which could make his time in prison very challenging.

According to reports, the doctor was convicted in March 2012 of illegally selling prescription medications on several occasions between January 2005 and September 2010. He faced a minimum prison sentence of 12 ½ years for the crimes. After taking his situation into consideration, though, a judge concluded last week that the former doctor should be sentenced to serve seven years in prison and three years on probation. The doctor has also been sentenced to pay $40,000 in fines and some of his property may even be forfeited.

After announcing the sentence, the judge told the man that he was doing him a “favor.” The judge also noted that prescription drug use and abuse has become a significant problem and doctors need to be held responsible when they fail to distribute the medications under lawful and appropriate conditions.

Defendants who are facing drug charges will not want to proceed with their cases in court until they have developed a strategic defense and understand how the charges they are facing could affect them if they are convicted. An experienced and aggressive attorney will help folks handle these issues as strategically as possible.

Source: Philadelphia Inquirer, “‘Pill-mill’ doctor gets seven years in prison,” David Sell, Jan. 31, 2013

Criminal Trial Guide in Pennsylvania

This guide serves as a general overview of the criminal trial process from arrest through appeal in the Commonwealth of Pennsylvania. Each case, each Pennsylvania County, and each client may have specific rules and needs which can deviate from this general guide. This guide is not a substitute for legal advice. Please consult an attorney regarding specific facts and issues which may affect your case.

1. Arrest and Preliminary Arraignment

Most criminal cases in Pennsylvania begin with the arrest of the Defendant. Most felonies require an immediate arrest and processing. While most misdemeanors, the charges can be issued by summons in the mail to the Client. Following the arrest and processing, the Defendant is brought (or by video) before a district judge to have bail and bail conditions set. An appearance before the district magistrate generally occurs within hours of arrest and processing. A Defendant has the right to have an attorney present before the district magistrate, and the right to argue for bail on behalf of the Defendant.

2. Court of Common Pleas Bail Hearing

All Defendants have the right to have all bail decisions made by the district magistrate reviewed by the Court of Common Pleas (the “higher” court). The exact process for a Common Pleas bail review can vary greatly from County to County.

3. Preliminary Hearing

At the preliminary arraignment, the district magistrate will set a date for the preliminary hearing. This date must be set within 10 days of the arrest, but is often continued due to the availability of witnesses , attorneys, and evidence. The purpose of the preliminary hearing is for the Commonwealth to establish a Prima Facie case against the Defendant. The Defendant does not put on a defense, but has the right to review and cross examine the witnesses and evidence against them. Credibility is not at issue at a preliminary hearing, neither is guilt or innocence. In its simplest form, a preliminary hearing is used to determine whethere there is “some evidence” against the Defendent so that the case can proceed to trial. The preliminary hearing serves as a gatekeeping function to dismiss charges and cases where there is not sufficient evidence against a Defendant to proceed to trial

4. Formal Arraignment

The formal arraignment generally occurs 1-3 months following the preliminary hearing. Again, very dependent on county rules and county backlog. In most counties, the formal arraignment can be waived if an attorney is retained. The Defendant need not appear if they have retained counsel. The purpose of the formal arraignment is to advise the Defendant of the trial date, trial rights, the penalties for each crime charged, and other local county practices. Usually, when a Defendant has hired an attorney, the court assumes that the Defendant has been advised of their rights and options.

5. Discovery Process

Following the formal arraignment, the Defendant is entitled to Discovery. Essentially, the Defendant is entitled to all police reports, expert reports, photographs, witnesses, criminal histories, and all evidence against them. The attorney for the defendant will receive this Discovery.

6. PreTrial Motions

Within 30 days of the Formal Arraignment, the Defendant must file all pretrial motions in their case. This may include Suppression motions, Discovery motions, Limiting motions, Dismissal motions, etc. An experienced attorney, after reviewing the discovery, will be necessary to file appropriate motions necessary to defend your case. You will lose the right to litigate these motions if they are not filed. A hearing on these motions will be required prior to trial. The scheduling of that hearing will vary from county to county. Some counties will give their own pretrial date. Other counties will litigate the motions on the day of trial.

7. PreTrial Diversionary Programs

Following the formal arraignment is GENERALLY the time to file for a diversionary program if applicable. This may include ARD, Drug Court, Veterans Court, Youthful Offender court, etc. The types of programs available, eligibility for these progtrams, applications, and the timing of the applications will vary greatly from county to county

8. TRIAL (jury or Waiver)

Once discovery has been completed, and all pretrial motions litigated, the court will schedule a trial date. Defendants may or may not receive a plea offer from the District Attorney prior to trial. The defendant will also accept entry into a diversionary program prior to trial. Trials generally occur anywhere from two to five months following the formal arraignment, but this timing is highly suspect due to the seriousness of a case and the availability of witnesses, experts, and officers. The Defendant has the option of a Judge ONLY trial (waiver trial) or a jury trial. In a jury trial, the defense and the District attorney will select the final panel from members of the community chosen at random. In a waiver trial, the judge alone hears the case, and make the determination of guilty or not guilty. Both a judge or jury must decide guilt BEYOND A REASONABLE DOUBT.

9. Sentencing

Sentencing occurs following a conviction at trial, or following a guilty plea or plea offer. Sentencing can be immediate or deferred for a period of time, depending on the circumstances. Some counties require a presentence report. Other counties will allow the Defendant’s counsel to prepare their own mitigation. The sentence given is a function of sentencing guidelines, which is a matrix of prior offenses and severity of the present conviction. Some crimes require mandatory sentencing. Sentencing is an extremely complicated process requiring an experienced counsel. In addition to the guidelines, there are a number of setencing alternatives that may be availabile, including: House Arrest, Work Release, SIP, RRRI, etc.

10. Post Trial / Sentence Motions

The Defendant has the right to file Post Sentence or Post Trial motions within 10 days of their sentencing. These motions may include Motions for Reconsideration of Sentence, Motions to overturn the conviction, or Motions for a sentencing program. There are numerous options available in Post Sentence motions

11. Direct Appeal

A direct appeal to the Superior Court must be filed within 30 days of Sentencing, or within 30 days following a ruling on the Post Sentence motions. All appeals by the Superior Court are based on a review of the trial court record to determine whether errors were made. Direct Appeals do not permit new evidence or witnesses to by presented, but a review of what has already transpired.

12. Violations of Probation or Parole

Once a sentenced Defendant is released on parole or probation. Their behavior during the additional supervision make cause a violation of their probation or parole. The VOP hearing is a mini trial where the Defendant challenges or explains their conduct, and argues for an appropriate sanction, if any.

If you have any questions, or need an attorney. Please contact me.
Niels C Eriksen Jr, Esquire

Bucks County Criminal Defense Attorney