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Is there a statute of limitations for possession of 2 grams in Philadelphia?

Philadelphia, PA |

My fience was arrested in 2006 with 2 grams and was charged with possession with the intent to deliver, a motion was filed and it was supposed to be thrown out but there was a warrant issued and he was arrested and is now being recharged in 2013? He has a court appointed lawyer who will not help or go talk to my fience. What can we do?

Attorney Answers 5

Posted

There is a statute of limitations, but there may be an issue that prevents it from providing relief. The statute is satisfied if the charges are brought within the required period. In other words, the fact that this occurred 7 years ago is irrelevant if the charges were brought in time. Since there was a bench warrant issued, it appears that the charges were filed long before 2013.

I am sorry that you feel that your court appointed attorney is not helping. If you have attempted to contact him or her and they have not returned calls, then you should contact a private attorney. However, if the issue is that he or she is not approaching the case in the way that your fiance desires-it may be because your fiance's approach would not be useful.

Michael L. Doyle
(215) 900-5565

This is not intended as individual legal advice and there is no attorney client relationship established by this answer. It is advisable that you seek individualized legal assistance. This is not a substitute for hiring an attorney.

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10 comments

Asker

Posted

He hasn't talk to or have been to see him, he said that he doesn't know anything and won't be able to talk him anything to after the pretrial conference, but my fiance what's to negotiate a plea, or take a plea deal and the attorney said he can he has to take mandatory years, he should at least be able to go speak with him right??

Asker

Posted

Said he can't I meant sorry

Michael Lawrence Doyle

Michael Lawrence Doyle

Posted

It is possible that he does not have any of the discovery. Depending upon the situation, he may want to wait until he has discovery in order to discuss this in better detail. Depending upon when he was first appointed and when the pretrial conference is, that may be understandable. Personally, I think speaking to your fiance first is the best approach. However, negotiating a plea before receiving discovery is a very,very poor idea.

Asker

Posted

My fiance filed a motion to suppress evidence and has time served now but the pretrial conference is April 9 but the attorney said he isn't getting paid for his case so he isn't wasting 3 hours of his day to go see him.

Asker

Posted

Thank you for your help

Michael Lawrence Doyle

Michael Lawrence Doyle

Posted

Then he may want to hire a new attorney.

Asker

Posted

He was appointed how can we do this? I have written the judge and the prosecution and even the law my concerns and my fiances background and all the positive things he has been doing and that we have 5 children he has been working to support.

Michael Lawrence Doyle

Michael Lawrence Doyle

Posted

The Judge rarely ever reappoints a new court appointed counsel. This is because many defendants complain "I do not have a real attorney," when in fact most court appointed attorneys are private criminal defense attorneys. that know what they are doing. If you are unhappy, you need to find a way to borrow money from friends or family to hire an attorney. That is most likely the only option.

Asker

Posted

Ok thank you I really appreciate your help.

Brian M. Fishman

Brian M. Fishman

Posted

Not only do I agree with Mr. Doyle but I think he should be commended for answering all of your questions promptly and fully. We need more attorneys like him in the profession. Great job, Mike.

Posted

There is a statute of limitation and a speedy trial rule at play here. The issue is fact sensitive so his attorney would be in the best position to understand the facts and make an argument for dismissal.

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Asker

Posted

His attorney will not help and said there is nothing he can do and he has to take a mandatory sentence, I asked if we can take a plea agreement and he laughed and also said he wasn't being paid for this case so he isn't going to waste 3 hours of his day to talk to him

Posted

Let me first say that I agree with the answers provided by Attorneys Doyle and Keller. I've read the comments posted here as well and what you've described is troubling. It is important that you understand that the lawyer is representing your fiance and owes a duty only to him. When someone is in jail the opportunity for miscommunication/misunderstanding by you is very real. If counsel is behaving as described, my suggestion is that attempts be made to document the lack of effort. I recommend that your fiance write a detailed letter to counsel describing what has happened and what has not happened to date and request an in-person meeting with him at the jail. Copies of all correspondence with counsel should be retained for future reference. If the relationship with counsel does not improve, your fiance is going to have to alert the Court, on the record, (i.e. with a court reporter present preserving the proceeding) of the failings in the relationship with counsel. If the relationship is not adequately documented it will become a matter of the lawyer's word against your fiance--not a winning formula. Good luck. Btw, the best solution would, of course, be for privately retained counsel to take over his representation.

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2 comments

Asker

Posted

Ok thank you I really appreciate your help, also can I tape a conversation with his attorney legally to prove his conduct, when in telling him my fiances background and that he is changed and we have 5 children now and all the positive things and school he is attending he laughed and told me he doesn't know this to be 100% true and he may be in there for a while , I understand I know nothing about law and but he is my life me and our children need him, he seems very cold hearted and says things I believe a attorney shouldn't

William A. Jones Jr.

William A. Jones Jr.

Posted

NO. Recording a conversation in PA in which one or more of the participants is unaware of and has not consented to the recording is a violation of the Pennsylvania Wiretapping and Electronic Surveillance Act. Try to document in writing--by letter or email. In addition to what I have already suggested, I would encourage you to write a detailed history of the relationship with counsel, especially the parts for which you have personally been present such as what you just mentioned a moment ago. Such a document will help you recall the details later if needed. Your fiance should do likewise but in a letter to his attorney. You are most welcome.

Posted

There is a statute of limitations for filing a charge; there is also a speedy trial rule of criminal procedure that may come into play. If your fiancee's court appointed lawyer will not speak to him he can always hire a private lawyer. Hopefully the court appointed lawyer has examined the time line for the charge and can tell your fiancee whether there is any time related issue that can be presented to the court. Good luck

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Posted

I think you have received sufficient information concerning the statute of limitations issue by the other attorneys who have answered and I agree with them. I have also read the comments that you posted to the answers provided. While you do not need to tell me on this public forum, I'm assuming that the drug involved is crack or cocaine as mandatory minimum sentences kick in for those drugs if the total weight is over 2 grams.

Generally, in Philadelphia, pre-trial offers are made at the arraignment and then there is a pre-trial conference scheduled about a month later. I believe you mentioned that the pre-trial conference is April 9th. Therefore, court-appointed counsel likely received an offer somewhat recently. The attorney has an ethical duty to his client and the court to relay any pre-trial offer and your fiance has the right to accept or reject that offer, on the record before a judge or by signing a document that the DA's Office refers to as the SMART Room Offer Sheet. That offer sheet would have been provided to counsel at the arraignment. Your fiance should insist that the matter not go past the pre-trial conference until he is brought down to the courthouse and has a chance to address the matter of any pre-trial offer in open court so there is no confusion.

He should not in any way discuss the merits or facts of the case in open court. However, he can bring to the court's attention that his attorney has not come to visit him, has not discussed the case with him, has not provided him with discovery or discussed any pre-trial offer with him. The attorney may assume based on what you've said that your fiance is not interested in the offer and the case could get spun out to a trial room where, if convicted, your fiance is facing significantly more time than the mandatory minimum. In addition, his attorney may be able to negotiate with the District Attorney to make a lower offer.

Despite all of this, if the drug is cocaine and your fiance has no prior convictions for possession with intent to deliver he is facing a mandatory of 1-2 years in state prison and 3-6 years if he does have a prior. And, these mandatory sentences go up if the weight is above 10 grams. Therefore, since it does not appear that you have the funds to hire a private attorney, I strongly suggest that your fiance send a letter to his attorney and perhaps even to the court insisting that he be present for his pre-trial conference (because the defendants usually are not brought down from State Road unless it's going to be a plea) so that this issue can be sorted out before the case goes to a trial room.

If the attorney is "called out" in open court by the judge, he's likely to start paying more attention to your fiance's case. Or, he may agree that they just can't work together and perhaps he'll agree that it's best that other counsel is appointed. While that doesn't happen often, if both parties agree, then the court may be willing to appoint alternative counsel. Otherwise, I strongly suggest that you contact family and friends and do all you can to hire a private attorney.

Almost all criminal defense attorneys offer free consultations and it can't hurt to speak to some in the area to get some prices and some basic advice on how to proceed. I wish you and your fiance all the best and I'm sorry to hear you're having this problem with a local attorney.

Brian M. Fishman
fishmanlaw@gmail.com
www.PhillyCriminalDefense.blogspot.com

The posting of an answer to this question in no way creates an attorney-client relationship between myself and any reader. I always suggest you contact and hire a lawyer to receive legal advice.

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