possession with intent to deliver
Thank you for visiting the Lampman Law website. Lampman Law is located on Public Square in Wilkes-Barre, Pennsylvania and we practice throughout northeastern and central Pennsylvania. From the time Lampman Law opened we have focused on criminal defense, have been in Pennsylvania criminal courts daily, and have represented good people that have been charged with felony drug delivery offenses and trusted us to defend them.
We regularly defend clients charged with PWID where the felony charges are dropped, dismissed, or substantially reduced. For example, a few years ago, Lampman Law resolved a case involving the possession of six (6) pounds of marihuana with a probationary sentence after arguing that the accused was transporting the drug from Colorado to Connecticut for personal use. In another case, Lampman Law represented a client charged with PWID of 169 grams of crack cocaine (traffic stop) and after filing motions, the entire case was dismissed. Lampman Law also successfully defended a client charged with Drug Delivery (Heroin / Fentanyl) Resulting in Death.
More Importantly, we understand how to defend felony PWID drug cases—we prepare to attack and to win. Lampman Law is always ready and willing to fight and will perform a full investigation of all cases we handle before offering our advice concerning a case’s resolution. In short, we insist on reviewing all the evidence before concluding on the strength or weakness of a case. It is equally important, however, that we always offer direct and honest advice to our clients. If, after reviewing all the evidence, we determine that a case is unlikely to succeed we timely advise our clients of our opinion and fully explain our reasoning in detail.
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POSSESSION WITH INTENT TO DELIVER A CONTROLLED SUBSTANCE (PWID) – 35 P.S. § 780-113(a)(30)
Pennsylvania’s Definition of PWID
Section (a)(30) of the drug act provided that the following activities are prohibited:
Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.
Elements of PWID
In Pennsylvania it is illegal for a person to possess any controlled substance that is not properly prescribed by medical practitioner. However, it is also illegal to distribute (other than a small amount of marihuana), deliver, or sell a controlled substance without being specifically authorized to do so.
To convict a person of 35 P.S. § 780-113(a)(30), PWID, the Commonwealth must prove beyond a reasonable doubt that the individual both possessed the controlled substance and had an intent to deliver that substance.
Analyzing the Elements of 35 P.S. § 780-113(a)(16)
When examining whether a controlled substance was possessed with intent to deliver, the court must consider all of the facts and circumstances surrounding the possession of the substance.
Additionally, the Commonwealth may establish the elements of a crime entirely by circumstantial evidence. Thus, possession with intent to deliver can be inferred from the quantity of the drugs possessed and other surrounding circumstances, such as: lack of paraphernalia for consumption, packing or packaging materials, scales, possession of multiple cell phones, statements, etc.
Many times, the Commonwealth will rely on testimony form informants (CI), undercover officers, officer surveillance to prove a conspiracy, delivery, or PWID charge. They may also use photos, videos, audio recordings, phone logs, and other evidence to prove their case.
Synopsis of PWID Arrest & Process
PWID charges generally commence with the police arresting a suspect in the act of an alleged offense or by the police taking custody of a suspect via an arrest warrant. Once a suspect is in custody they must timely be taken to a preliminary arraignment where a magistrate judge will set bail. The accused will either be released on bail or remain incarcerated pending the disposition of the case.
Timely Retain Counsel
Once an accused is arrested for PWID it is imperative to promptly retain counsel whether through the Public Defender’s Office or privately retained counsel. While a full review of criminal court procedure it beyond the scope of this article, it is necessary to note that having experienced and prepared counsel at the preliminary hearing is extremely important. Further, counsel should be retained prior to the date of formal arraignment (regardless of whether it has been waived) because that date calculates the time limits for filing a bill of particulars, a request for discovery, and an omnibus pre-trial motion (suppression / dismissal motions).
PWID Grading & Maximum Penalties
All known controlled substances are classified in Pennsylvania’s drug act under a specific class or “schedule” based on the drugs severity, how addictive it is and if it has a medical. Each schedule carries a different set of penalties and standards. Therefore, the offense grading and maximum penalties for a PWID offense depend, in part, on the classification of the controlled substance that is charged. Adding to the complexity is that some drugs are graded differently than others that are in the same Schedule. For example, Marihuana is a Schedule I drug, but it does not have the most severe maximum penalties.
Schedule I or II Drugs - Narcotics
Schedule II drugs have a high potential for abuse and limited accepted medical use. Examples of Schedule II drugs are: morphine, PCP, cocaine, methadone and methamphetamine.
This PWID offense is an ungraded felony with a maximum penalty of 15-years of incarceration and a $250,000.00 maximum fine. The fine can be enlarged to ensure exhaustion of the profits obtained from the illegal activity.
Narcotics in this category are: Opiates and Opium Derivatives (Heroin / Fentanyl) and Hallucinogens (LSD).
Phencyclidine (PCP), Methamphetamine, Coca Leaves (Cocaine), Marihuana over (1,000 Pounds)
A PWID offense for the above noted drugs is an ungraded felony with a maximum penalty of 10-years of incarceration and a $100,000.00 maximum fine. The fine can be enlarged to ensure exhaustion of the profits obtained from the illegal activity.
Other Schedule I, II, or III Drugs – Non-Narcotics
This PWID offense is an ungraded felony with a maximum penalty of 5-years of incarceration and a $15,000.00 maximum fine.
Examples of drugs with the above maximum penalty are: marihuana, anabolic steroids, and codeine.
Schedule IV Drugs
This PWID offense is an ungraded felony with a maximum penalty of 3-years of incarceration and a $10,000.00 maximum fine.
Drugs in this penalty category are include Valium and Xanax.
Schedule V Drugs
This PWID offense is an ungraded misdemeanor with a maximum penalty of 1-year of incarceration and a $5,000.00 maximum fine.
Examples of these drugs with this PWID penalty are: cough syrups with small amounts of codeine.
Criminal Consequences of a PWID Conviction
In Pennsylvania, a PWID sentencing range is determined by the offender’s prior record score (PRS) and the offense gravity score (OGS) of the crime. In these cases, the OGS is dependent on the weight and type of drug involved in the offense. PRS range from zero (0) to five (5) and have additional categories for repeat felony offenders and repeat violent offenders.
The charts illustrated below show the various OGS and sentencing ranges for PWID of commonly charged drugs. These examples, display the sentencing ranges for offenders with a PRS of 0, 2, and 4 to show a sample the various sentencing ranges. The sentencing ranges are listed in months. A court can start a sentence at the low or high end of a standard range.
PCP & MDMA
PWID of Other Drugs
What are the Options?
Defending PWID cases in Pennsylvania is complex litigation because they frequently involve multiple alleged incidents (drug deliveries), confidential informants, photographs, audio and video recordings, and multiple defendants. Accordingly, it is essential to closely review, analyze, and master all the facts.
As with any other criminal case, however, challenges to the factual allegations and the Commonwealth’s ability to prove the elements of the case beyond a reasonable doubt are the foundation to any good defense. Similarly, challenging identify (physical and voice), mere presence, actual and constructive possession, and intent (personal use vs. intent to sell), are all viable defenses to drug charges provided they are supported by the facts.
Moreover, challenging the legality of a stop and/or search are often relevant defenses in drug prosecutions. Of course, it is always important to identify: (1) the narcotic in question; (2) the weight of the narcotic at issue; and, (3) to challenge, or negotiate, the amount of the weight charged.
Lawyers defending a drug case must deeply understand United States and Pennsylvania Constitutional Law. Particularly, the law concerning personal searches, vehicle searches, search warrants, seizures, and when relevant, Pennsylvania’s Wire Tap Law.
When defending drug charges, it is important to zealously purse all avenues of defense, including: filing suppression motions (illegal vehicle stops, searches, wire taps, coerced consents), challenge the weight of the drug, arguing personal use if applicable.
While all PWID case have the right to a jury trial, not all PWID cases are right for trial. This determination can only be properly made after an experienced criminal defense lawyer performs a complete investigation of the case and thoroughly reviews it. If a case will likely fail at trial, and no suppression issues exist, it is wise to negotiate a favorable plea agreement to avoid more severe penalties.
Drug Treatment Court Programs
Many counties that have Drug Treatment Court Programs exclude individuals charged with PWID. Sometimes entry to these programs can be gained by showing that the offender is drug dependent and was involved in the drug trade as a means of supporting their habit.
Treatment Court Programs have diverse requirements and offer various incentives. It is important for a participant to understand the program prior to making an application for admission. All Drug Treatment Court Programs require long-term supervision (typically 2 years) a serious commitment from the offender.
County Intermediate Punishment
County Intermediate Punishment (CIP) permits a court to use sentencing alternatives such as house arrest with electronic monitoring, work release, and day reporting programs as an alternative to traditional county incarceration. Courts in some counties will sentence PWID offenders to house arrest—most will not.
State Intermediate Punishment
Low level drug dependent offenders facing a state prison sentence may seek a State Intermediate Punishment (SIP) sentence. To be eligible, the prosecutor and the court must recommend the offender for the program. SIP is a flat 24 months sentence of varying levels confinement that focuses on substance abuse treatment. It requires at least seven (7) months in a state correctional institute.
The Recidivism Risk Reduction Incentive (RRRI) is a program available to non-violent offenders facing a term of state incarceration. It permits participants to reduce their minimum sentence by a percentage if they complete recommended programs and maintain good behavior while incarcerated.
Collateral Consequences of a PWID Conviction
6 Month Driver’s License Suspension
A conviction to 35 P.S. § 780-113(a)(30), PWID carries an automatic six (6) month driver’s license suspension that PennDOT will impose. Here it is important to note that even if the court or counsel does not advise an offender to this suspension PennDOT will enforce it.
Criminal Record of PWID Offense
A conviction to a felony drug offense will remain on an offender’s record unless it is pardoned by the Governor of Pennsylvania and then expunged.
Misdemeanor PWID convictions may be eligible for a limited access order provided the maximum penalty is not more than 2 years.
Educational / Employment Consequences
Any PWID conviction will present significant barriers for education and employment opportunities. Those with a felony drug conviction must be persistently follow their career goals while showing gatekeepers that that are reformed.
Any property used to further the drug trade is subject to forfeiture meaning that the Commonwealth can attempt to seize it from the convicted offender.
Firearms Ownership Rights
Any person convicted of a drug offense that may be punishable by a term of imprisonment exceeding two (2) years is prohibited from possessing, using, manufacturing, controlling, selling, or transferring a firearm.
Therefore, anyone convicted of a felony drug offense may not lawfully possess a firearm.
Undocumented persons may be deported upon conviction of any drug offense. Depending on the facts and circumstances of the case, any non-citizen may face deportation upon conviction of a drug offense.
Applications for Clemency / Governor’s Pardons
As noted above, felony drug convictions are not eligible for a standard expungement or a limited access order. For any misdemeanor of the first degree or felony offense to be expungement eligible, it must first be recommended for pardon by the Pennsylvania Board of Pardons and then granted a pardon by the Governor of Pennsylvania.
Pardons are commenced by filing an application for clemency. Historically, pardons have been granted sparingly. However, when the General Assembly passed the law permitting limited access orders in 2015-16, it opened dialogue about expanding the use of pardons. Specifically, this discussion concerned helping people who committed crimes to support their drug habit but have since achieved sobriety and maintain long-term recovery.
Pathway to Pardons Program
The Pathways to Pardons program focuses on crimes that were committed by drug dependent offenders. It is designed to help those individuals that have since fully committed to substance abuse recovery. In addition to showing that the offense was committed to support their drug habit, the applicant must show evidence that they have approximately five years in recovery with no criminal related activity.
It is important to note that the pardon process generally takes about three (3) years. Moreover, based on Pennsylvania’s tradition of sparingly granting pardons, the statistics of pardons granted (in 2016, Governor Wolf granted a total of seventy-eight (78) pardons), public policy concerns, and experience, it is difficult for this lawyer to imagine the flood gates on granted pardons opening. In short, when the 2017 and 2018 statistics concerning granted pardons are released, we may have a better idea if this is a real policy shift or just political talk.
Call Today for a Free Consultation
If you or someone you love has been charged with Simple Possession of a Controlled Substance in Pennsylvania call Lampman Law today at 570-371-3737 for free consultation.