Need some legal advice regarding ARD...

[glock40]

Hey everyone, I'm a lurker around here, but have done my fair share of reading up on some previous threads on here about probation and getting a LTCF.

I guess I'll start at the beginning and why I'm on ARD. About 2 years ago this month I was detained for carrying a firearm without a license up in Columbia county (I live in Chester county), a year later I was placed on ARD probation for 18 months which will end in March.

With that being said, I have read up on this, and have seen threads mostly on just probation, which is somewhat different from ARD. I am hoping that come March my expungement will go through rather quickly so I can move on with my life and get back into a favorite hobby of mine.

Will I have any problems getting a carry permit let alone a firearm once this is all said and done?

Thanks in advance.

ETA:

Also at the time of detainment the police seized my pistol, and gave no property receipt. Now I really don't care if I get my gun back but I'd be more comfortable knowing it was destroyed or something. What will happen with that?

[West Chester]

You know your situation... can you answer these questions correctly?

http://dsf.chesco.org/sheriff/lib/sh...ermit_form.pdf

[knight0334]

Once your ARD is complete you may still have issues passing PICS. You'll want to check into whether your charges will be expunged as a part of the ARD program or if you will have to do that on your own(with a lawyer).


Your firearm will probably be destroyed, auctioned off, or sold to a FFL.

[glock40]

You know your situation... can you answer these questions correctly?

http://dsf.chesco.org/sheriff/lib/sh...ermit_form.pdf

Thank you for that.

Question 32 asked if you've been charged with a crime punishable by more than 1 year.... when ARD is done this will be expunged, my lawyer has assured me this will happen. Does that still need to be disclosed when it is expunged or will a "charge" still remain on the record.

[Greywolf]

Thank you for that.

Question 32 asked if you've been charged with a crime punishable by more than 1 year.... when ARD is done this will be expunged, my lawyer has assured me this will happen. Does that still need to be disclosed when it is expunged or will a "charge" still remain on the record.

Ask your lawyer.

"Expunged" means the record is erased. If the record is, in fact, expunged, there will be no record of it. However, the fact will remain that you HAVE been charged, so answering No to question 32 would be making a false statement.

IMHO you need to ask your lawyer how to answer the question. It may be that you have to say yes, and follow-up indicates no prohibition so you get the LTCF and the guns anyway. Don't blindly risk a perjury charge.

[ray h]

Theoretically an expungement should make the paperwork of the arrest and charges disappear. An expungement is a court order that is sent to all agencies who is involved in the arrest and conviction telling them to destroy records.
That said, I was arrested for the same thing many years ago in MD. After probation the court ordered an expungement. For a few years after the expungement I had applied for several government contract jobs that I shouldve easily gotten but I was getting turned down one after the other. Long story short, I eventually found out that the local PD who arrested me had not destroyed my record and neither had the DEA (apparently they received a copy of my violation for some reason). A clerk at the local PD got their ass handed to them when the judge found out they didnt comply with his court order but as far as I know, the DEA didnt give a crap.
After the expungement is ordered, make sure to followup to insure that it was done properly. I didnt do that and it cost me a career.
I wont tell you how I answered the questions on the LTCF application but I will tell you that I dont have any problem getting one.

[GunLawyer001]

Ask your lawyer.

"Expunged" means the record is erased. If the record is, in fact, expunged, there will be no record of it. However, the fact will remain that you HAVE been charged, so answering No to question 32 would be making a false statement.

IMHO you need to ask your lawyer how to answer the question. It may be that you have to say yes, and follow-up indicates no prohibition so you get the LTCF and the guns anyway. Don't blindly risk a perjury charge.

Lying without being sworn-in isn't perjury, it's "unsworn falsification."

As for whether you have to treat an expunged arrest as an arrest, that depends, and opinions vary. You can answer "no" if you were arrested, convicted, and pardoned, even though it's not technically, literally true. But the system regards a pardon as an erasure of the event.

When you haven't even been convicted, and have obtained an expungement of the arrest, there's an argument that the expungement would be nullified if you had to disclose the arrest yourself. That's the point of an expungement, so that the government regards the arrest as never having happened.

But like I said, opinions vary. And there was at least one case in Philly where the record was expunged, the woman answered "no", but the cops remembered arresting her. So she was denied for "lying on the application". I had two similar cases in Philly myself, but they were resolved in my clients' favor, thanks to the professionalism of Brad Richman, who represents the PD in these things.

[ray h]

there's an argument that the expungement would be nullified if you had to disclose the arrest yourself. That's the point of an expungement, so that the government regards the arrest as never having happened.

Its interesting. When my expungement was ordered I recieved the same letter from the court as everyone else involved in my case. The court order stated that I was to destroy any records of the arrest and/or conviction. The fact that I was ordered to destroy all of my records sort of guided me in my decision as far as disclosure goes.

[MDJschool]

An expungment has more of a chance of creating issues following the successful completion of ARD than does dismissal of the charge alone. When the court makes an order of disposition in a case, it has a considerable likelihood of being received by the PSP, recorded, and reflected by PICS. "All criminal justice agencies, including but not limited to, courts, county, regional and state correctional institutions and parole and probation agencies, shall collect and submit reports of dispositions occurring within their respective agencies for criminal history record information, within 90 days of the date of such disposition to the central repository as provided for in this section." 18 Pa.C.S. 9113(a).

A dismissal then relieves you of being "An individual who is charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year" under 18 Pa.C.S. 6109(e)(1)(viii). Dismissal of the charge is provided for by Pa.R.Crim.P., Rule 310: "When the defendant shall have completed satisfactorily the program prescribed and complied with its conditions, the defendant may move the court for an order dismissing the charges. This motion shall be supported by affidavit of the defendant and by certification of the agency or person charged with supervising the defendant's program, if any. A copy of the motion shall be served on the attorney for the Commonwealth who shall within 30 days after service advise the judge of any objections to the motion, serving a copy of such objections on the defendant or the defendant's attorney. If there are no objections filed within the 30-day period, the judge shall thereafter dismiss the charges against the defendant. If there are objections filed with regard to the dismissal of charges, the judge shall proceed as set forth in Rule 318. Comment: In some counties, court agencies or the district attorney's office have procedures for initiating the dismissal of the charges upon the defendant's successful completion of the program. This rule is not intended to preclude these procedures.".

The PSP has some special hatred for expungment. Although statute, rule, and order require them to seal or destroy records, they still manage to keep some on occasion and use them to prevent the transfer of firearms or the receipt of a LTCF to those persons entitled. However, you do not need to wait for expungment, as provided for under Rule 320, to apply for a LTCF, unless you think the sheriff will get ahold of the information of your prior charge and use it to attempt to suit some other prohibitor and deny you a license.

Regardless of the character of the government's possession of your firearm, it does not own your firearm. "The conditions of the program may be such as may be imposed with respect to probation after conviction of a crime, including restitution, except that a fine may not be imposed. In addition, the conditions of the program may include the imposition of costs, the imposition of a reasonable charge relating to the expense of administering the program, and such other conditions as may be agreed to by the parties." Rule 316(A). So long as you have not authorized the abandonment or transfer of your firearm as "such other condition as may be agreed to by the parties" under ARD, the court has no authority to impose a condition that would not be allowed for a defendant under probation. "Furthermore, while § 9754(c)(7) grants to the sentencing judge the discretion to impose such a condition of probation, it does not authorize as a condition of probation the transfer of title or ownership of firearms. The legislature has given to the sentencing judges the authority to ensure that during a probationary period the accused does not have possession of firearms. However, the legislature has not authorized the divestiture of ownership of firearms during probation. Thus, the trial court has the discretion only to direct the manner in which possession of a firearm shall be transferred out of Appellant, and may not make any order which would affect any other aspect of Appellant's ownership of the property." Com. v. Arthur, 384 Pa.Super. 613, 618-619 (1989).

Forfeiture should not be without prior notice of intent to forfeitm and a hearing, anyway. "That the specific conditions of probation authorized in § 9754, including subsection (c)(7), are behavioral conditions, directed at rehabilitation of a defendant, and are not punitive, has been emphasized by the Supreme Court." Com. v. Crosby, 390 Pa.Super. 140, 144 (1990). "Section 9754(c)(7), specifically relied upon by the Commonwealth, only authorizes the restriction of possession of firearms or deadly weapons; it does not permit forfeiture to accomplish the restriction on possession of firearms. See Commonwealth v. Arthur, 384 Pa.Super. 613, 559 A.2d 936 (1989)." Crosby, at 145. The court will not create an automatic rule of forfeiture particularly in the case of common law forfeiture, if such a thing still exists in the Commonwealth. Crosby, at 153. Automatic forfeiture on sentence will be overturned where there is no notice on intent to forfeit. Crosby, at 155. "In the present case, when the Commonwealth made its oral motion for forfeiture, the nature of the proceeding was effectively changed from a hearing on a petition for return of property to a hearing under the Controlled Substances Forfeiture Act. Although Mosley declined to attend the hearing on his petition for return of property, it cannot be assumed that had he been provided notice and an opportunity to be heard on the Commonwealth's motion for forfeiture he would have acquiesced in the forfeiture proceeding. When Mosley made his decision, he had no notice that the Commonwealth would oppose his petition, much less that the Commonwealth would initiate a forfeiture proceeding that would be carried out in his absence." Com. v. Mosley, 549 Pa. 627, 632 (1997).

I think under Pa. Const. art. I, sec. 8, and probably 18 Pa.C.S. 6111.1(b)(4), the police have an affirmative duty to return your firearm upon the dismissal of the charges, if there is no other lawful reason for a new seizure under art. I, sec. 8. If they don't do that, you can file a motion for return of property under Pa.R.Crim.P., Rule 588. Failing to prevail on a motion for return of property does not entitle the Commonwealth to automatic forfeiture. Com. v. Mosley, 549 Pa. at 631-632.

If you believe your firearm is going to be destroyed or the Commonwealth plans to treat the firearm beyond its custodial allowance, you should file for an injunction, for a writ of prohibition, for return of property with extraordinary relief. My WestLaw just broke so I can't ascertain the proper solution, but I would suggest that if I were in the situation without an idea of form or procedure, and wasn't that interested but wasn't totally uninterested in getting my firearm back, I would draw up a motion immediately for the return of property that asks the court to restrain the police, or whomever holds the property, from doing anything but exercising normal and reasonable custody over it.

[MDJschool]

If you believe your firearm is going to be destroyed or the Commonwealth plans to treat the firearm beyond its custodial allowance, you should file for an injunction, for a writ of prohibition, for return of property with extraordinary relief. My WestLaw just broke so I can't ascertain the proper solution, but I would suggest that if I were in the situation without an idea of form or procedure, and wasn't that interested but wasn't totally uninterested in getting my firearm back, I would draw up a motion immediately for the return of property that asks the court to restrain the police, or whomever holds the property, from doing anything but exercising normal and reasonable custody over it.

After some thinking, I think you should file a Rule 588 motion for return of property as soon as possible following any confiscation regardless of whether you are entitled to its immediate return because law enforcement is not done with it. It puts the law enforcement parties on notice. Ideally, you want to have a motion and/or hearing that establishes your entitlement to property without ordering anyone to give it back to you until you're entitled (ex: An order ordering return of the property within 30 days following the dismissal of the underlying charge is one possibility, or filing the motion and then having the court stay proceedings in that matter until the underlying charge is dismissed). The same approach would be taken, for example, in filing a 1983 action where there is worry that heck v. humphrey may eventually bar success on the action, but since the heck bar could be alleviated, and time may toll for statute of limitations purposes had the suit never been made, the proceedings are stayed after the suit is filed. It would be preferential to request to, if a hearing is had in the near future related to the motion, that he explicitly put on the record his finding that you are entitled to the property, as a clear rebuke to law enforcement officials currently holding it. A copy of the transcript or order should be forwarded to the agency believed to be actually holding the property.