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Post Conviction Relief Act

 

Even if a criminal defendant has appealed to the Superior Court or the time to file an appeal has expired, he still has avenues for a sentence reduction, new trial, or even discharge. In Pennsylvania, the Post Conviction Relief Act (or “PCRA”) is that path.

The PCRA allows defendants to challenge the constitutionality of the proceedings against them, the legality of their sentence, or even the effectiveness of their attorney. If they win, the PCRA court can vacate their conviction, force the district attorney to extend a plea bargain, order a new trial, or even discharge them.

The PCRA has strict requirements for relief, however, and an experienced attorney is the best way to increase the chance of success. For example, the PCRA has timing and pleading requirements that, if not met, will all but doom a claim.

At Gearty Law Office, we know PCRAs. We know the rules, statutes, and cases, so that we can give you the edge you need in tough cases. If you have doubts about a criminal conviction, call us. We will review your case and give you our opinion through the eyes of experienced PCRA litigators.

Appeals

 

An unfavorable decision in the trial court is not the end of a case. Maybe someone went to trial in a criminal case and lost, maybe they got an unfavorable custody order, or maybe they had a final protection from abuse (or PFA) order issued against them. While the case is over in county court, you can argue that the order was wrong—you have appellate rights.

But how does someone exercise their appellate rights? There are special courts that will review the trial court’s decisions. In Pennsylvania, they are the Commonwealth, Superior, and Supreme Courts. Almost no decision that a trial court makes is beyond their reach; the appellate courts can review everything from the trial court’s evidentiary decisions to the length of a criminal sentence. They have the power to correct any mistake they find: they can order new trials; override the trial court’s decision; or even discharge a prisoner, vacate his conviction, and forbid retrial.

Having the right attorney is a big part to a successful appeal. Each court has its own set of rules and special requirements. Appeals in Pennsylvania, for example, are governed by more than three hundred rules of procedure, dozens of internal operating procedures, and volumes of decisions interpreting the law and appellate rules. An attorney who has experience in the appellate courts knows those rules—and most importantly, how to avoid the pitfalls—gives the client the best chance of success.

At Gearty Law Office, we have attorneys who have practiced before the appellate courts, know the rules and procedures, and have proven track records of success on appeal. If you would like us to review your case, call to talk to one of our attorneys—you lose nothing by seeking a second opinion.

Below is the press release that announces Attorney Gearty’s award from the American Institute of Family Law Attorneys.

PRESS RELEASE

 

Justin C. Gearty, Jr. Has Been Nominated and Accepted as Two Years
AIOFLA’S 10 Best in Pennsylvania For Client Satisfaction

The American Institute of Family Law Attorneys has recognized the exceptional performance of
Pennsylvania’s Family Law Attorney Justin C. Gearty, Jr. as Two Years 10 Best Family Law Attorney for
Client Satisfaction.
The American Institute of Family Law Attorneys is a third-party attorney rating organization that
publishes an annual list of the Top 10 Family Law Attorneys in each state. Attorneys who are selected to
the “10 Best” list must pass AIOFLA’s rigorous selection process, which is based on client and/or peer
nominations, thorough research and AIOFLA’s independent evaluation. AIOFLA’s annual list was created
to be used as a resource for clients during the attorney selection process.

One of the most significant aspects of the selection process involves attorneys’ relationships and
reputation among his or her clients. As clients should be an attorney’s top priority, AIOFLA places the
utmost emphasis on selecting lawyers who have achieved significant success in the field of Family Law
without sacrificing the service and support they provide. Selection criteria therefore focus on attorneys
who demonstrate the highest standards of Client Satisfaction.

We congratulate Justin C. Gearty, Jr. on this achievement and we are honored to have him as a Two
Years AIOFLA Member.
You can contact Justin C. Gearty, Jr. directly at: 717-490-6325 or www.geartylawoffices.com.

A new law recently went into effect in Pennsylvania that will make more people eligible to have a criminal record expunged.  An expungement is a Court Order that requires the destruction of a criminal record.  In the past, only the following were permitted to be expungement:

  • Most charges following completion of the ARD Program
  • Charges that were dismissed (many people do not realize that when a charge is dismissed or someone is found not guilty, that charge still remains on the criminal record, although it will show that it was dismissed)
  • Summary offenses may be expunged if the defendant remains free of any convictions for a period of five years following the summary conviction
  • Charges may be expunged once a person reaches 70 years of age and has remained crime free for the proceeding ten years
  • A person that has been dead for three or more years would also qualify for an expungement

Under that rule, which is 1922 under the rules of criminal procedure, a person would not qualify for an expungement if he had a Misdemeanor or felony conviction unless the person did ARD, was 70 years old, or dead.  Under the new rule 1922.1, the following may be expunged:

  • Misdemeanor 3 and Misdemeanor 2 offenses so long as the crime is not punishable by more than 2 years of imprisonment.  To qualify for this expungement, the person would have to go ten years following the conviction without any new arrests and would have to have completed any requirements associated with their sentence.
    • The following would not qualify for expungement
      • 4 or more convictions where the potential sentence is one year or more
      • Simple assault that is graded as a Misdemeanor 2.  (the M3 simple assault would qualify for expungement)
      • intimidation of a witness
      • sexual intercourse with an animal
      • impersonation of a public servant
      • retaliation
      • any crime involving sex offender registration and
      • any crime involving the intimidation, retaliation, or obstruction relating to a child abuse investigation

Under 1922.1, although the charge can be expunged under the situations noted above, this would be a somewhat partial expungement.  For example, the expunged charged would no longer be available through any public searches and any state police background check would not show the charge, however, information regarding the conviction would remain on file with the prosecutors office so that if the person go into trouble in the future, the prosecutor could use the prior conviction when considering the prior record score for the current offense.

Also, an expungement under 1922.1 would not restore someone’s gun rights if their conviction resulted in the loss of any such rights.

If none of the above apply, a person can still have their criminal record removed through the Pardon process.  There are several differences between a pardon and an expungement.  First, if you meet one of the expungement criteria listed above, you  have a right to get an expungement.  There is no right to obtain a pardon.  An expungement is handled by filing a petition with the court of common pleas in the county in which the conviction occurred.  A pardon is filed with the state pardon board and ultimately would need the governor’s approval to be granted.

 

If you need assistance in clearing your criminal record, call us today for a free phone consultation.  717-490-6325

Substance abuse, whether that is the abuse of illegal substances or a legal substance like alcohol, comes into play in various different areas of law and is frequently seen at the Law Office of Justin C. Gearty Jr. When substance abuse is an issue in your legal matter, it is critical that you have an attorney that understands substance abuse issues in great detail. By having a lawyer familiar with that subject matter, the attorney can better prepare you for the questioning in the court and can assist you in getting treatment to ensure your case is presented in the best light possible. If the substance abuse issue is on the other side, for example; the other side of a custody case, you need an attorney that can effectively cross-examine the other side to establish any remaining issues, such as whether they have successfully completed ALL necessary treatment, whether the treatment recommendations were appropriate given the facts and circumstances of this case, whether sufficient drug testing has been done, whether the person has established a sufficient support system, etc.

Attorney Gearty is much more familiar than most with substance abuse issues. Attorney Gearty began working in addictions treatment in 2002. In July of 2016, Attorney Gearty became a shareholder and president of the board of H.S.A. Counseling, Inc, which now does business as Gearty and Skiles Counseling. Gearty and Skiles provides outpatient drug and alcohol treatment in Lancaster and Ephrata. Attorney Gearty has spoken on the topic of drug addiction in schools, rehab centers, jails, prisons, detention centers, etc. Mr. Gearty traveled the country working with over 30 different treatment centers as a business analyst.

If you or someone you know that has a case that involves substance abuse, such as a criminal case, child custody case, divorce matter, protection from abuse matter, or other, contact Gearty Law today for a free phone consultation.

Under Pennsylvania Law, there are typically 2 ways of obtaining a divorce. The first way is a divorce that is completed by consent. This is completed under section 3301c of the PA Divorce Code. The requires the filing and serving of a divorce complaint, a 90 day waiting period, followed by the execution of the divorce consents by both parties.

Often times, one party or the other may refuse to sign a consent. For example, spousal support or alimony pendente lite is often awarded to the lower earning spouse. The support award ends being anywhere between 30% and 40% (depending on whether there is also a child support award). Those support payments will continue until the divorce is completed, often times regardless of the length of the marriage. We have seen this result in people paying for support for 2 or more years for a marriage that lasted that long or less, which seems patently unfair. The had required 2 years of separation before a divorce could be completed without consent. Fortunately, the law was modified, which went into effect in December of 2016. The law, found under section 3301d of the PA Divorce Code, now allows for the completion of a divorce following a one year separation. Under section 3301d, if one party refuses to consent, the divorce can still be finalized without that persons consent once there has been one year of separation.

If you or someone you know needs representation, contact the PA Divorce Law Firm of Justin C. Gearty Jr. We offer a free, no obligation phone consultation. We are often able to offer a flat fee for divorces under 3301c and 3301d when there are no corresponding property or child custody claims. Call today for more information. 717-490-6325

At Gearty Law, we strive to provide a wide range of services in various areas of law so we can assist each client with all of his or her needs. We are pleased to announce that we are now accepting new clients seeking a school law attorney. We have attorneys on staff prepared to represent you and your child with a range of potential issues that the student may have. Having a school law attorney will help ensure that your student’s due process rights are protected and that your child is receiving the appropriate education. We can assist with IEP’s (individualized education plans), disciplinary matters, issues that may arise with children in a gifted program, issues that may arise with your college student, and various other matters involving school law.

Having a child with special needs impacts every area of a parent and child’s life, not the least of which is education. At Gearty Law Offices we understand how important it is for a child to receive an appropriate education. Education is the foundation of every child’s future. If your child has special education needs we can help you at any stage of your child’s development, from the determination of your child’s need for modifications for his or her education through an Individualized Education Plan (IEP) through representation at a Due Process Hearing when you cannot obtain the required modifications from the school. From early intervention (pre-school ages 3-5) through High School support may be available to assist your child and Gearty Law is here to help you through that process.
In Pennsylvania, under 22 Pa. Code §14.101 a child of at least 3 years of age and who meets the criteria of a disability under Federal law 34 CFR 300.200.J is eligible for early intervention services. For school age children Federal Law provides for a free appropriate public education to all children residing within the state between the ages of 3 and 21. 34 CFR 300.101. Let us assist you in ensuring your child’s educational needs are met.

For a free phone consultation with a qualified school law attorney, call us today!

PENNSYLVANIA PROTECTION FROM ABUSE PROCEEDINGS

LANCASTER AND CENTRAL PA PFA DEFENSE ATTORNEY/

LANCASTER AND CENTRAL PA PFA PLAINTIFF’S ATTORNEY

            The Attorneys at Gearty Law Offices have experience successfully defending individuals against false PFA’s that were filed against them and our Attorneys have experience successfully protecting victims of domestic violence by obtaining protection from abuse Orders.

Under Pennsylvania Law, a person can obtain a PFA by proving by the preponderance of the evidence that one or more of the following has occurred:  1. Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon; 2. Placing another in reasonable fear of imminent serious bodily injury; 3.  The infliction of false imprisonment; 4.   Physically or sexually abusing minor children;  5.  Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.

A PFA can only be entered when one or the more of the above occurs by a household member, past or present intimate or sexual partner, or parties that share biological parenthood (which the Court’s have interpreted this to include step-siblings in certain situations).

Unfortunately, parties involved in Divorce and/or Child Custody proceedings have begun using PFA proceedings to try to gain an advantage in their custody or divorce proceedings and do so by bringing false allegations of abuse.  The Attorneys at Gearty Law Offices have seen numerous examples of this through the years and have been successful in getting such false PFA’s dismissed.  The law requires that the allegations brought in a PFA complaint be proven by a preponderance of the evidence and the burden of proof is on the Plaintiff.  If the Plaintiff is unable to meet that burden of proof, then the PFA must be dismissed.

In addition to defending against false PFA’s, Gearty Law also represents victims of abuse by representing them through PFA proceedings.  If you or someone you know is a victim of abuse or has had false abuse allegations brought against them, contact Gearty Law today for a free phone consultation at: 717-490-6325.

The Attorneys at Gearty Law Offices obtained a favorable opinion today from the Pennsylvania Superior Court regarding a child custody appeal.  A few months ago, a client came to Gearty Law after receiving an unfavorable child custody order at the trial level (the client had other legal counsel representing him at trial).  Upon coming to Gearty Law, we were able to find several errors of law that were in the custody order and opinion.  Gearty Law then filed an appeal on the client’s behalf to the Pennsylvania Superior Court.

Pennsylvania Child Custody Law requires the court to consider 16 different factors when making a custody determination.  In opinion listed below, the Superior Court lists those factors as well as some recent caselaw that applies these factors.

If you or anyone you know received an unfavorable decision at trial (whether in family law, criminal law, personal injury law, or other area of law), please contact the Appellate Attorneys at Gearty Law Offices to see if you have a potential issue for appeal to a higher court.  The Lancaster PA and Central PA Appeals/Appellate Attorneys at Gearty Law are here to assist with all of your appellate needs.

(Below are parts of the Superior Court’s opinion that explains the child custody factors and custody laws)

IN THE SUPERIOR COURT OF PENNSYLVANIA

 

 

In his brief on appeal, Father raises four issues, as follows.

1. Whether the [trial] court erred and abused its discretion by

awarding the mother primary physical custody of the children by

misapplying and/or ignoring the factors outlined in

[23 Pa.C.S.A.] § 5328[(a)]?

Initially, we observe that, as the custody trial in this matter was held

in August of 2012, the new Child Custody Act, 23 Pa.C.S.A. §§ 5321-5340

(the “Act”), is applicable. C.R.F. v. S.E.F., 45 A.3d 441, 445 (Pa. Super.

2012) (holding that, if the custody evidentiary proceeding commences on or

after the effective date of the Act, i.e., January 24, 2011, the provisions of

the Act apply).

§ 5328. Factors to consider when awarding custody

(a) Factors.—In ordering any form of custody, the court shall

determine the best interest of the child by considering all

relevant factors, giving weighted consideration to those factors

which affect the safety of the child, including the following:

(1) Which party is more likely to encourage and permit

frequent and continuing contact between the child and another

party.

(2) The present and past abuse committed by a party or

member of the party’s household, whether there is a continued

risk of harm to the child or an abused party and which party can

better provide adequate physical safeguards and supervision of

the child.

(3) The parental duties performed by each party on

behalf of the child.

(4) The need for stability and continuity in the child’s

education, family life and community life.

(5) The availability of extended family.

 (6) The child’s sibling relationships.

(7) The well-reasoned preference of the child, based on

the child’s maturity and judgment.

(8) The attempts of a parent to turn the child against the

other parent, except in cases of domestic violence where

reasonable safety measures are necessary to protect the child

from harm.

(9) Which party is more likely to maintain a loving,

stable, consistent and nurturing relationship with the child

adequate for the child’s emotional needs.

(10) Which party is more likely to attend to the daily

physical, emotional, developmental, educational and special

needs of the child.

(11) The proximity of the residences of the parties.

(12) Each party’s availability to care for the child or ability

to make appropriate child-care arrangements.

(13) The level of conflict between the parties and the

willingness and ability of the parties to cooperate with one

another. A party’s effort to protect a child from abuse by

another party is not evidence of unwillingness or inability to

cooperate with that party.

(14) The history of drug or alcohol abuse of a party or

member of a party’s household.

(15) The mental and physical condition of a party or

member of a party’s household.

(16) Any other relevant factor.

23 Pa.C.S.A. § 5328; E.D. v. M.P., 33 A.3d 73, 80-81, n.2 (Pa. Super.

2011).

 

In E.D., 33 A.3d at 79-80, the panel instructed that the “best interests

of the child” analysis requires the trial court to conduct a consideration of all

of the sixteen factors listed in section 5328(a) (emphasis added). In E.D.,

we addressed whether the trial court had failed to consider the factors set

forth in section 5328 regarding the custody award. After quoting the trial

court’s summary disposition of the issue, this Court instructed that, on

remand, the trial court should conduct a thorough analysis based on the

factors set forth in section 5328(a). Id. at 82.

Subsequently, in J.R.M. v. J.E.A., 33 A.3d 647, 652 (Pa. Super.

2011), this Court addressed an appeal by a father from an order awarding

primary physical custody of the parties’ child. The panel determined that the

trial court erred as a matter of law in basing its decision almost exclusively

on the fact that the child was breastfeeding, and that the parties had

difficulty communicating with each other. Id. We concluded that the trial

court failed to assess all of the factors required to be considered under

section 5328(a). Thus, we vacated the award and remanded the matter,

stating that this Court could not make independent factual determinations.

Id., at 652 n.5.

 

Relying on the decision in J.R.M., Father argues that, in its order, the

trial court failed to consider all of the factors set forth in section 5328(a).

Thus, he seeks for this Court to either fashion a new order that significantly

increases Father’s periods of partial custody, or remand the matter to the

trial court with instructions for the court to engage in further fact-finding

with regard to each of the sixteen factors.

Attorney Gearty was recently interviewed and gave his expert opinion on the topic of unmarried couples living together.  This interview was published in a Lancaster based newspaper and the full article is published below.  As you will see, there are various considerations to be made prior to entering into a lease with another person.  Married couples enjoy various privileges that may not exist for unmarried couples.  If you are considering entering into a lease with your partner who you are not married to, we would encourage you to contact Gearty Law Offices to discuss the pros and cons before entering into any such arrangement.  Furthermore, it is always suggested that you have an experienced attorney review your lease before signing such an important legal document.  As a general practice law firm, we have experience handling various legal issues throughout various areas of law.  Gearty Law Offices has experience drafting, reviewing, and litigating leases (both simple and complex).

Intelligencer Journal/Lancaster New Era

A new lease on life?

A new lease on life?

February 28, 2013

BY KIMBERLY MARSELAS, Correspondent

A new baby was due, and so was the rent.

That didn’t keep Brian Hoffman’s tenant from cheating on his girlfriend, or that girlfriend from begging to be let out of a yearlong lease the couple had only recently signed.

Tears or no tears, landlords draw a hard line when it comes to cohabitants who want to split up while living together. During his 20 years in property management, Hoffman has issued one warning hundreds of times, whether he’s talking to in-love, but unmarried, tenants or best friends about to become roommates.

“Your relationship doesn’t matter to me, but your arrangements with regard to this lease will matter to me,” says Hoffman, whose Yeager Agency rents out dozens of units across northern Lancaster County. “If you move in and find out that she is an absolute bum or if she doesn’t respond to the lease, I’m going to hold you responsible.”

In the case of the expectant parents, Hoffman says the man used that fact to his advantage, telling his girlfriend he didn’t care if she disliked his cheating. She had to continue paying rent and utilities. They eventually both moved, Hoffman says, but not before forfeiting a security deposit and paying thousands in termination fees.

If breaking up is hard to do, try moving out when your name is still on a rental agreement. Paying off the remainder of a lease or early-exit fees — in addition to rent on a new place — can be financially devastating. Sticking it out and enduring months of anxiety isn’t a pleasant alternative.

Rent.com recently surveyed 1,000 U.S. renters to find out what life is like for those who break up while living together. The site found that 38 percent of renters have ended a personal relationship while living together, and 61 percent of those people kept living together for a month or more.

Not everyone is willing to make that kind of sacrifice. Sometimes a breakup means one party skips out, leaving the remaining tenant holding a mounting stack of bills.

David Boyd, property manager for Crossroads Property Management’s more than 500 homes in Lancaster, Harrisburg and York, has dealt with many a renter whose special someone wasn’t as special as he or she seemed. If the one left behind can’t muster the monthly rental and utility fees, they may be forced out as well. Boyd says in some cases, like that of a single mom, he might try to give a tenant a few extra days to work out payment.

“You never like telling someone, ‘You’re not paying your bills. You have to leave’,” Boyd says. “You want to help them, but you’re also responsible to the property owner.”

Lancaster attorney Justin C. Gearty Jr. says landlords can make a claim with the local magistrate, seeking to evict the person still in the unit, terminate the other person’s right to access the unit and win a monetary judgment against both tenants.

If one tenant moves out, Boyd says the other should always notify the property manager. In some cases, the landlord may want to run a new credit check to see if the person qualifies to rent the home based on one income. The lease can be amended to remove one name if both parties agree. In that case, only the roommate left behind will be responsible for the remainder of the lease term.

Rent.com’s survey found that 25 percent of renters who remained roommates after a breakup did so “because they didn’t see why they should be the one to have to leave.” If both partners want to keep the space, it may be time to consult a professional.

“They could retain a lawyer or mediator to help them reach some sort of agreement,” says Gearty, adding that any new arrangement will be at the sole discretion of the landlord.

Psychologist Michelle Callahan, a relationship expert who teamed up with Rent.com on the breakup survey, lists a number of ways to determine who gets to keep the rental unit. Someone who works from home or cares for children there might have more incentive to stay. If the apartment is particularly close to one person’s job, that person might feel entitled to remain.

Of course, the person who wants out of the relationship may just want out of the home, too. Having an exit plan is something both renters should weigh before ever signing a lease, Gearty says.

When a contract’s involved, breaking up gets complicated and may be stalled.