Felony Convictions and License Reinstatement

A licensed professional convicted of a felony drug offense is a major impediment to securing licensure in another jurisdiction or seeking reinstatement once your professional license is disciplined for that conviction. In many license reinstatement cases, applicants are so in need of their license that they hire the wrong attorney, waste money on filing reinstatement petitions prior to the expiration of the license preclusion period, or simply give up on getting their license back.
In a 2017 Pennsylvania Nursing Board Final Adjudication and Order the nurse was convicted in 2006 in Delaware of practicing with an expired nursing license.  In 2015 she sought reinstatement of her Pennsylvania nursing license.  Because she was convicted of a felony involving the practice or professional in Delaware, the convicted offense and license discipline was applicable under the Pennsylvania Nursing Act to her Pennsylvania license.
After 8 years, she hired the wrong attorney to seek reinstatement of her Pennsylvania nursing license. Her attorney thought reinstatement was was possible based upon mitigation and rehabilitation evidence.  She was wrong.
Pennsylvania’s Professional Nursing Law, section 6(c), states that the “Board may not issue a license or [graduate training certificate] to an applicant who has been convicted or a felony relating to a controlled substance law (in any jurisdiction) unless at least 10 years has elapsed from the date of conviction.   It does not matter how much rehabilitation the applicant has undergone.  If the application for licensure is not outside the ten years, there is no legal ability for the Board to consider the license application.
This denial of licensure application case reveals that counsel for the applicant did not know the law.  Focusing on rehabilitation rather than eligibility, the applicant’s attorney wasted his client’s money on his premature application, hearing, and appeal time.
Licensing attorneys must know what evidence is admissible in the relaxed administrative hearing process under GRAPP (General Rules of Administrative Practice and Procedure) 2 PA.C.S. § 504.  Knowing to what exhibits or evidence to object and facts an attorney should stipulate will make or break a licensee’s case.  The uninformed general practitioner will not know the importance or admissibility of certain evidence.  They will waste time and legal fee money fighting evidence that is admissible in evidence for the Board to consider or will move into evidence evidence that the Board should not consider.
More importantly, the uninformed practitioner will accept a case simply to pay their bills.  The uniformed attorney will take cases that have no merit, can not be won, or will lose a case that is easily won.  Desperate licensed professionals who are waiting out a discipline and seek reinstatement will pay an attorney who sounds good but can not discern the attorney’s lack of knowledge of their case.
Call me for confidence in understanding your case.  I will give you a clear understanding of the problem, counsel you about the risks and rewards of fighting your case.  I will not take your case, or fight for your license if you do not want me to, can not afford it, or there is no basis to seek reinstatement.
Fighting a disciplinary action – an Order to Show Cause -, contesting the VRP or DMU letters must be done with competent informed counsel. Never concede an impairment. Never admit an addiction without formal legal counseling on the affect of such on your license. Never plead guilty to any criminal offense without consultation with an experienced license attorney so you understand the collateral consequences of the criminal conviction, ARD, or no contest plea.  Please read my blogs and website to understand how I can help you and protect your license.

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December 20, 2012 Megan’s Law Reclassification Issues

The typical questions I am receiving in these Megan’s Law reclassification cases are “I have been registering for 9 years, with one year left and I now am told effective December 20, 2012 I will have to register for a lifetime. Can they do this? Or, I am on probation and I do not have register. The Pa. State Police are telling me I now have to register. Can they do that?

The answer under both scenarios is YES.

The cases have held the following: Megan’s Law (Megan’s Law I), was first enacted in Pennsylvania on October 24, 1995. Subsequently, the Law was reenacted and amended on May 10, 2000, effective July 9, 2000 (Megan’s Law II). Megan’s Law II has been amended several times, most recently on December 20, 2011, to be effective in one year. In the latest amendments, Megan’s Law III, the length of registration has been altered for anyone still under supervision or currently registering under the Act.

The new registration provisions are under 42 Pa.C.S. § 9799.14 and 42 Pa.C.S. § 9799.15. There are now three tiers and multiple years of registration.

Thomas v. Pa. Bd. of Prob. & Parole Secy. Kimberly Barkley, 2012 Pa. Commw. Unpub. LEXIS 892, 1-3 (Pa. Commw. Ct. 2012), is a case that discusses the legality of the legislature reclassifying probationers or registrants. Following Comm v. Benner, 2004 PA Super 243, 853 A.2d 1068 (Pa. Super. 2004), the court said reclassification is OK and there is nothing illegal about it.

In Benner, neither Megan’s Law I nor Megan’s Law II was effective at the time of his rape conviction. However, Megan’s Law II was in effect in 2009 when Benner was paroled. Section 9793 of Megan’s Law I, which required registration of certain offenders for ten years, including those individuals convicted of rape under Section 3121 of the Crimes Code, as amended, 18 Pa. C.S. § 3121, was repealed. Section 9795.1 of Megan’s Law II, enacted on that same date, changed the registration requirement for those individuals convicted of rape from the previous ten-year registration requirement to a lifetime registration requirement. 42 Pa. C.S. § 9795.1(b)(2).

Benner similarly argued that he could only be subject to the registration requirements in Megan’s Law I, and not Megan’s Law II, which was not in effect when he pled guilty and was sentenced. The Superior Court found that the registration provisions of Megan’s Law did not constitute criminal punishment, but were a collateral consequence of the individual’s conviction. The court noted that “while a defendant may be subject to conviction only under statutes in effect on the date of his acts, and sentence configuration under the Guidelines in effect on that same date, the application of the registration requirements under Megan’s Law is not so limited.” The court therefore determined that “the collateral effect of current legislation may be imposed on the defendant so long as he remains in the custody of correctional authorities to discharge any part of his sentence for the sex offense.” Accordingly, because defendant Benner was still serving his sentence for a sex offense after Megan’s Law II was enacted, he remained “subject to the collateral effect of its application [i.e., lifetime registration].” Thompson argued the same issue and also lost.

The issues of whether the reclassification registration requirements under Megan’s Law constitute ex post facto punishment has already been roundly rejected by the courts in, e.g., Commonwealth v. Leidig, 598 Pa. 211, 956 A.2d 399 (2008) (registration is merely collateral consequence of a conviction of a Megan’s Law predicate offense and not punitive in nature); and Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999) (registration is remedial in nature, not punitive). Thomas v. Pa. Bd. of Prob. & Parole Secy. Kimberly Barkley, 2012 Pa. Commw. Unpub. LEXIS 892, 8-9 (Pa. Commw. Ct. 2012)

More importantly, the courts have held that while it is clear that under Megan’s Law II the inconvenience of verifying one’s residence has been extended from ten years to the remainder of one’s life for certain offenders, the courts cannot discern how the extension of this time period effectuates such a change in the registration requirements that the effects of the provisions are so harsh that they are now punitive. A registrant must still has to provide the same information in the same manner as set forth in Megan’s Law Iⅈ he is merely subject to the requirements for a longer period of time. Moreover, the requirement that a registrant provide information to law enforcement will not have a large impact on their life. An extension of time alone does not render the effects of the registration requirements so harsh as a matter of degree that they now may be characterized as punishment. Additionally, the court notes that: “a registration requirement is perhaps the least burdensome among the various modes of regulation a state may seek to impose. Commonwealth v. Mountain, 711 A.2d 473, 477 (Pa. Super. 1998), appeal denied, 561 Pa. 672, 749 A.2d 469 (2000) (quoting Commonwealth v. National Federation of the Blind, 18 Pa. Commw. 291, 335 A.2d 832, 835 (Pa. Cmwlth. 1975), aff’d at 471 Pa. 529, 370 A.2d 732 (1977)). Accordingly, the courts conclude that the effects of the registration provisions of Megan’s Law II are not so additionally burdensome as to constitute punishment, Commonwealth v. Fleming, 2002 PA Super 190, P17 (Pa. Super. Ct. 2002), and will so for the reclassification scheme under Megan’s Law III in effect after December 20, 2012.

RRR Eligibility and Mandatory Minimum Sentences

Recent budgetary constraints have compelled state legislatures to rethink prison as a rehabilitative resource rather than warehouse project to simply store persons convicted of non-violent offenses. To that end, the General Assembly in our Commonwealth passed legislation titled the Recidivism Risk Reduction Incentive Program, 61 Pa.C.S. § 4501 et seq., for eligible persons. This specific legislation, however, came in directly conflict with Pennsylvania’s mandatory minimum sentencing scheme for first time offenders as set forth in 18 Pa.C.S. §§ 6317 and 7508.

The confluence of these two provisions was recently addressed in the case of Commonwealth vs. Hansley, 47 A.3d 1180, 2012 Pa. LEXIS 1585 (July 17, 2012). In this case, as in many cases in Philadelphia, a defendant plead guilty to two separate drug delivery cases on the same day, for multiple sentences, below the guidelines, even below the mandatory minimum sentences, with the trial court utilizing its discretion, over the Commonwealth’s objection, to also conclude the defendant was “Triple RI eligible”.

On Appeal, the Commonwealth argued arguing that “the trial court erred in applying the RRRI Act to the mandatory minimum penalties of Sections 6317 and 7508(a)(3)(ii).” The trial court’s opinion concluded that:
General Assembly intended the RRRI Act to supplement existing sentencing law. While acknowledging that the RRRI Act reduced the time that some inmates would otherwise be incarcerated, the court reasoned that the RRRI Act reflected a legislative scheme that “emphasized rehabilitative programming instead of sentence modification.” The court noted that the RRRI Act did not require offenders to be released prior to the expiration of the mandatory minimum sentence; it merely provided them with the opportunity for an earlier release upon completion of an RRRI program. Because certain drug offenders, even those subject to mandatory penalties like appellee, were not excluded from the definition of “eligible offender,” the trial court determined that it did not err in evaluating appellee’s RRRI eligibility as part of its sentencing determination.
The court further observed that the General Assembly required judges to comply with the existing Sentencing Code, as well as to apply the provisions of the RRRI Act. In this case, the court complied with these directives by imposing mandatory minimum sentences under the Sentencing Code, while also fashioning RRRI Act minimum sentences. Finally, to the extent that there was a conflict between the drug trafficking sentencing provisions and the RRRI Act, the trial court opined that the RRRI Act must prevail, since it was adopted more recently.

The Supreme Court affirmed the trial court’s application of the RRR eligibility. The court explained that the Recidivism Risk Reduction Incentive Act (RRRI Act), 61 Pa.C.S. §§ 4501 – 4512, prescribes separate duties for a sentencing judge and the Pennsylvania Board of Probation and Parole. Section 4503 defines “eligible offender” as follows:”Eligible offender.” A defendant or inmate convicted of a criminal offense who will be committed to the custody of the department and who meets all of the following eligibility requirements:
(1) Does not demonstrate a history of present or past violent behavior.
(2) Has not been subject to a sentence the calculation of which includes an enhancement for the use of a deadly weapon as defined under law or the sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing or the attorney for the Commonwealth has not demonstrated that the defendant has been found guilty of or was convicted of an offense involving a deadly weapon or offense under 18 Pa.C.S. Ch. 61 (relating to firearms and other dangerous articles) or the equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(3) Has not been found guilty of or previously convicted of or adjudicated delinquent for or an attempt or conspiracy to commit a personal injury crime as defined under section 103 of the act of November 24, 1998 (P.L. 882, No. 111), known as the Crime Victims Act, or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation.

(4) Has not been found guilty or previously convicted or adjudicated delinquent for violating any of the following provisions or an equivalent offense under the laws of the United States or one of its territories or possessions, another state, the District of Columbia, the Commonwealth of Puerto Rico or a foreign nation:18 Pa.C.S. § 4302 (relating to incest).
18 Pa.C.S. § 5901 (relating to open lewdness).
18 Pa.C.S. § 6312 (relating to sexual abuse of children).
18 Pa.C.S. § 6318 (relating to unlawful contact with minor).
18 Pa.C.S. § 6320 (relating to sexual exploitation of children).
18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child pornography).Received a criminal sentence pursuant to 42 Pa.C.S. § 9712.1 (relating to sentences for certain drug offenses committed with firearms).

Any offense listed under 42 Pa.C.S. § 9795.1 (relating to registration).

(5) Is not awaiting trial or sentencing for additional criminal charges, if a conviction or sentence on the additional charges would cause the defendant to become ineligible under this definition.

(6) Has not been found guilty or previously convicted of violating section 13(a)(14), (30) or (37) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, where the sentence was imposed pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking sentencing and penalties).61 Pa.C.S. § 4503. Effective December 20, 2012, the General Assembly amended paragraph (4) by substituting “Any sexually violent offense as defined in 42 Pa.C.S. Ch. 97 Subch. H (relating to registration of sexual offenders)” for “Any offense listed under 42 Pa.C.S. § 9795.1 (relating to registration).” See P.L. 446, No. 111, § 14 (December 20, 2011). The amendment does not affect the disposition of the instant matter. Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012)

When a court imposes a sentence of imprisonment in a state correctional facility, the court must also determine if the defendant is eligible for an RRRI Act minimum sentence, 61 Pa.C.S. § 4505(a). The prosecutor may waive the eligibility requirements, but the court may refuse to accept that waiver after hearing from the victim. 61 Pa.C.S. § 4505(b). If the sentencing court concludes that a defendant is eligible for an RRRI Act minimum sentence, or the prosecutor has waived the eligibility requirements, then the court must impose the minimum and maximum sentences, as well as an RRRI Act minimum sentence. 61 Pa.C.S. § 4505(c)(1), (2); 42 Pa.C.S. § 9756. A court may decline to impose an RRRI Act minimum sentence if the offender has already been afforded two or more RRRI Act minimum sentences. 61 Pa.C.S. § 4505(c)(3). The court must also comply with all other applicable sentencing provisions, including provisions relating to victim notification and the opportunity to be heard. 61 Pa.C.S. § 4505(c)(4).

“Applying principles of statutory construction, the court had no hesitation in concluding that the RRRI Act is applicable to the mandatory minimum penalties imposed pursuant to Sections 6317 and 7508, there by reducing the mandatory minimum sentence an eligible parole may serve. The RRRI Act’s definition of “eligible offenders” includes a list of “eligibility requirements,” all of which must be met. The eligibility requirements operate to exclude many crimes, and many circumstances, from the Act’s scope. Rather, subsection (6) captures drug offenders who, inter alia, were subject to mandatory sentencing provisions other than Section 6317(a) and Section 7508(a)(3)(ii), the mandatory sentencing provisions applicable to appellee’s crimes. See 61 Pa.C.S. § 4503(6) (listing eligible offender requirement that defendant “[h]as not been found guilty or previously convicted of violating section 13(a)(14), (30) or (37) of [35 P.S. § 780-113], where the sentence was imposed pursuant to 18 Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii) or (8)(iii) (relating to drug trafficking sentencing and penalties)”).

“The RRRI Act eligibility provision is detailed, intricate, and plain; by its terms, appellee is an eligible offender. Moreover, the intricate construct reveals that the General Assembly made very specific judgments about which offenders and offenses [*1189] were eligible. It did not exclude all drug offenders, or even all drug offenders subject to mandatory sentences.

“Furthermore, when the General Assembly drafted the RRRI Act, it simultaneously amended the Sentencing Code by adding 42 Pa.C.S. § 9756(b)(2) to permit a modification of a minimum sentence, and 42 Pa.C.S. § 9756(b.1), to require that the trial court impose an RRRI Act minimum sentence “in addition to the minimum sentence.” This fact corroborates that the Legislature was aware of the effect of the RRRI Act on the Sentencing Code, and crafted a group of amendments that allowed the RRRI Act to work in conformity [**30] with other sentencing statutes, including those involving mandatory minimum sentences.

“We recognize that the effect of the RRRI Act may be to reduce the total time in prison that an offender subject to a mandatory minimum sentence must serve. But, it is eminently clear from the plain language of the legislation that the General Assembly intended that result – for a limited class of statutorily defined defendants, upon the completion of several conditions, and subject to the controlling discretion of the Parole Board. Our plain language interpretation accords with the legislative intent as we understand it, and gives effect to all provisions of the relevant sentencing statutes. Accordingly, the decision of the Trial court and Superior court were affirmed. Commonwealth v. Hansley, 47 A.3d 1180, 1188-1190 (Pa. 2012)

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