Question

  06/11/13, 9:09 pm
A couple years back i got into a little trouble. I was 19 at the time and was not sure of waht to do. My lawyer told me to take a plea without letting me know all the things that would come back to haunt me later. I am a gun advocate who has a dilemma. Because the lawyer advised me to take the deal, i am now unable to get a ltfc in the state of pennsylvania. Now if i had known that a M2 would keep you from having this, i would have went to trial and won. My multi part question is as follows: 1: Is there a way to appeal the please this late in the game? (it happend in 2010) 2: Can the lawyer be held accountable and brought up on charges for not telling me this info in the first place?(he told me i could own a gun but never specified about the ltfc) 3: Can this crime be expunged or pardoned by the state? and if so how? please help me out! Thank you
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United States   |   Pennsylvania  |  Criminal Law
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Answer

Jason Dunkle Says:

Jun 12,2013 9:23 PM

As you have discovered, a criminal conviction carries direct consequences, meaning probation/jail time and fines, and also collateral consequences, such as loss of financial aid, prohibition on working for the Federal government, or, in your case, the inability to obtain a license to carry concealed. I do not believe that you can bring any charges against your attorney. An attorney tries to advise a client on collateral consequences, but there are simply too many to discuss on every case. The courts have generally stated that an attorney is not required to inform a client of collateral consequences, BUT, the U.S. Supreme Court held a few years ago that an attorney was ineffective for not telling a client that his guilty plea would result in mandatory deportation. In the case,called Padilla, the Supreme Court held that the lawyer's failure to inform the client about deportation violated the client's 6th Amendment right to have effective counsel and thereby allowed the client to withdraw his guilty to the criminal charge and thereby avoid deportation. The courts are now figuring out which issues must be addressed, like deportation, and which issues are just considered "collateral." For example, in the case of Commonwealth v. Abraham. the PA Supreme Court held that a defense lawyer's failure to inform a client that a guilty plea to a sex charge would result in the loss of the man's state retirement pension was NOT ineffective assistance of counsel. That means that the man was NOT permitted to withdraw his guilty plea. In my opinion, I somewhat fear that the PA Courts would probably hold that failure to inform about the prohibition on obtaining a concealed carry permit was not ineffective. If the lawyer had failed to inform you that you were prohibited from ever possessing a firearm, you would have a better argument because the failure to inform would stop you from exercising your constitutional right to bear arms. I suspect that the court may care more about an outright prohibition as opposed to a restriction on the privilege of how to carry the firearm. Another issue is whether or not you could file a timely PCRA to get into court. Generally, a PCRA petition, meaning a petition that alleges that your attorney provided ineffective assistance, must be filed within 1 year of the date that your case became final, which would basically be your sentencing date. There are some exceptions to the 1 year rule. In your case, if you just discovered that you are ineligible to obtain a carry concealed license, you may try to argue that an exception applies as long as you filed within 60 days of discovering the prohibition. Basically, you have 2 things - first, you must find out whether you could file a PCRA timely. Judges do not like to re-open cases, so they are strict on the time issues. If you do not file a timely PCRA, it will simply be dismissed. If you can file a timely PCRA, in my opinion, as noted above, I fear that you are fighting an uphill battle in convincing the court to allow you to withdraw the plea. There is NO case directly on point, so your argument would be somewhat new. You also would have nothing to lose as the worst that could happen is that the judge said no, meaning you are in the same position as you are now. You can and should look into a pardon at some point. If granted, a pardon would set aside the conviction and thereby restore your ability to apply for a license to carry concealed. Check out the PA pardon process online. I would recommend contacting a pardon attorney to discuss whether you have a chance of obtaining a pardon at this point or should wait for a future date.

The responses provided on this site are intended for informational purposes only and should not be construed as providing legal advice regarding an individual situation. No attorney-client relationship is created between the reader and JD Law, P.C.


Jason Dunkle
JD Law, P.C.
204 East Calder Way, Suite 306,State College, PA 16801
814-954-9622
http://www.mystatecollegelawyer.com

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