Summary offenses are the least serious criminal offenses under Pennsylvania law. Common summary offenses include underage drinking, public drunkenness, disorderly conduct, criminal mischief and a first offense retail theft. Although these offenses are not nearly as serious as misdemeanors or felonies, they are criminal offenses nonetheless, and accordingly, they carry the possibility of jail time, in addition to fines and court costs. The maximum penalty for a summary offense under the Pennsylvania Crimes Code is 90 days in county jail.
In the landmark case of Gideon v. Wainwright, the United States Supreme ruled in 1963 that a person's Sixth Amendment right of assistance of counsel in criminal cases applies to criminal prosecutions in state courts, not just prosecutions in the federal courts. The definition of "criminal prosecution" triggering a right to counsel has been interpreted to mean any prosecution where incarceration is a possibility. In the vast majority of summary offense cases, Pennsylvania magisterial district judges have no intention of sentencing a defendant to county jail following a summary offense conviction. In these cases where a defendant is facing only fines and/ or loss of a driver's license, he does not have a constitutional right to an attorney, although it is highly advisable that he hire private counsel. There are, however, certain circumstances where a judge feels that jail may be appropriate. These include 1) situations where a defendant has numerous prior summary offense convictions, yet continues to get in trouble, 2) situations where the defendant really should have been charged with a misdemeanor or felony, but the cop gave the defendant a break by only filing summary offense charges, 3) summary offenses which take place on certain weekends, like Penn State's now infamous "State Patty's Day."
If there is any chance that a judge may opt to impose a jail sentence, then he must provide adequate notice to a defendant prior to trial that he is facing possible jail time if convicted. This is commonly known as a "jail letter." The jail letter will inform the defendant that he has an absolute right to an attorney, and that if he cannot afford an attorney, he should contact the public defender's office in the county where the crime occurred.
Defendants who receive a jail letter usually can avoid jail time through the assistance of an attorney. Conversely, those foolish enough to appear pro se (unrepresented) face a much greater likelihood of gaining the "street cred," some feel arises from having been to jail. Often, the defense lawyer can work out a plea agreement with the Commonwealth for fines and community service in lieu of jail, which the magisterial district judge will usually accept. Other times, defense counsel can make persuasive arguments to the judge that there are sufficient mitigating factors weighing against the need for incarceration. And in some cases, the defendant may actually be found not guilty. After all, the jail letter does not serve as a pre-determined finding of guilt before the judge has even heard any evidence.
Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, with extensive experience in summary offense cases. Most of his summary offense clients are Penn State students. http://www.mattmlaw.com/Criminal-Defense-Overview/Summary-Offenses.shtml