Pa Superior Court: Mandatory Minimum Sentencing Scheme “Unconstitutional”

August 21, 2014

Appellant brings this appeal challenging the constitutionality of one of Pennsylvania’s mandatory minimum sentencing statutes, 42 Pa.C.S.A. § 9712.1, following the United States Supreme Court’s holding in Alleyne v. United States, U.S. , 133 S.Ct. 2151 (2013). We find that Alleyne does indicate that the sentencing practice under Section 9712.1 is unconstitutional.

-Judge Ford Elliot, August 20, 2014, writing for an en banc Superior Court.

Just yesterday, the Pennsylvania Superior Court released an opinion in Commonwealth v. Newman, that seems to provide some direction to divided Pennsylvania Common Pleas Courts left to fend for their own in the wake of the United States Supreme Court Alleyne v. United States decision.

Let’s break this down simply. In Alleyne, the Supreme Court held that all facts that increase a mandatory minimum sentence must be submitted to a jury and found true beyond a reasonable doubt.

In many states, Pennsylvania included, mandatory minimum sentences could be imposed by a judge who found certain facts to be true only by a preponderance of the evidence at sentencing.

Alleyne held this scheme unconstitutional.

Prosecutors in Pennsylvania have been fighting to apply mandatory minimum sentences ever since. But one by one, counties across Pennsylvania have been finding mandatory minimum sentences unconstitutional.

What Happened in Newman?

In Commonwealth v. Newman, the defendant was arrested following several controlled drug buys at an apartment in Glenside, Pa. Based on those buys, the police got a search warrant for the property, and found a “large quantity” of crack cocaine, drug paraphernalia, and a handgun a few feet away from the drugs.

The defendant went to trial, where the jury found him guilty of possession with intent to deliver, among other crimes. The prosecutor filed a “Notice of Intent to Seek Mandatory Sentence” under Pennsylvania’s gun & drug law, 42 Pa. C.S. §9712.1, which means a mandatory 5-10 years for a person found in possession of a firearm and drugs. The defendant was sentenced overall to 5-10 years.

He appealed, and the Superior Court affirmed his sentence on June 12, 2013. But just days later, on June 17, 2013, the United States Supreme Court released its Alleyne opinion, so Newman filed a petition for reconsideration, which the Superior Court granted.

Skipping over the legalese, after a review of trial court opinions from the Courts of Common Pleas across Pennsylvania, the Superior Court  in Newman ultimately found that “the very trial courts entrusted with the imposition of mandatory minimum sentences after Alleyne have found Section 9712.1 as a whole to be no longer workable[.]” Specifically, the Court found that the mandatory minimum sentencing provision at issue were not severable, and that under the statutory construction rules of Pennsylvania (1 Pa. C.S. §1925, Constitutional construction of statutes) the statute therefore as a whole must fail.

The Court then ruled that §9712.1 was unconstitutional, vacated Newman’s judgment of sentence, and remanded the case for resentencing “without consideration of any mandatory minimum sentence provided by Section 9712.1″.

What Does this Mean for Me?

If you’re not currently facing charges where mandatory minimum sentences may apply, then nothing, really.

But if you or a loved one is facing a case with a potential mandatory minimum sentence, then things change a lot.

Just today, I filed my first motion to bar application of a mandatory minimum sentence under 42 Pa.C.S. §9712.1 under Commonwealth v. Newman, in expectation of a hearing scheduled tomorrow in a client’s case.

We don’t yet know if the Commonwealth (the prosecutors trying to keep people locked up) is going to petition the Pennsylvania Supreme Court for allocatur (aka ask them for permission to appeal the Superior Court’s judgment), but we’ll find out soon.

I’ll be paying close attention in the meantime.

Congrats to Patrick I. McMenamin, Jr. for this victory for the people of the Commonwealth of Pennsylvania.

-Leo.

Update 2014.8.22: The Judge granted my motion without even requiring argument.

 


In case it’s not perfectly clear…

July 1, 2014
GetAWarrantiPhone

Get a Warrant — for iPhone

I made this on my iPhone yesterday, and it currently serves as my lock screen.

Feel free to download and use it appropriately.

Tell your friends and share as much as you’d like. Get the word out there that police may not search your phone without your consent or a warrant, thanks to Riley v. California.

(Wikipedia here, SCOTUS opinion here, OYEZ project link here).

While you’re at it, turn off location services.

Edit: I had a colleague point out to me that the text is obscured by the unlock dots on some Android phones. An Android version is below the fold.

2nd Edit: Ken at Popehat requested a special custom version, which is also below the fold. Use at your own risk.
Read the rest of this entry »


Making People Stupider: Jezebel Edition

June 20, 2014
About That Time Jezebel Made People Stupider

About That Time Jezebel Made People Stupider

Today in Making People Stupider, I present to you the Jezebel article by Erin Gloria Ryan titled “About That Time Hilary Clinton Smeared a Tween Rape Victim“.

Read it. Please. Yes, including the comments section.*

Here’s are two highlights :

On the other hand, how massively fucked is it that our legal system expects and encourages attorneys to treat rape victims like this? And that even Hillary Clinton didn’t have the balls to set her career goals aside for a moment and stand up to what she must have known was bullshit, even in the midst of a time in her career she claims was devoted to serving children and families?

***

Hillary Clinton didn’t ‘laugh at a rape victim’ as the coverage errantly insists, but she definitely was the sort of lawyer who would attack the credibility of a rape victim in pursuit of legal victory.

You’re right, Erin. It couldn’t possibly be that Hillary was doing her job as a criminal defense lawyer and had an ethical obligation to defend her client however she could—it was that she had “career goals”. She should have “had the balls” to roll over and sell her client up the river, in derogation of her ethical duties to her client, because she’s the sort of lawyer who DARES to attack the credibility of a complaining witness.

Oh, and “the children”.

I was going to write a much longer, angrier, piece about the history of what criminal defense lawyers do, our ethics, our duties to our clients, etc., but it would be wasted breath keystrokes.

I’ll just say this: criminal defense lawyers have an ethical obligation to defend their clients. There is no “I understand, but…”. It simply is.

Erin Gloria Ryan, shame on you for making people stupider today .

*I am ashamed to say I broke Rule 1 of the Internet and argued in the comments.


The Plea

December 3, 2013

It is Tuesday at 9.30am and I am in the booth.

The booth is a tiny box where I have the honor of talking to my client through an inch of bullet-proof glass. I say “talking”, though it’s really more like yelling, since it’s pretty hard to hear through that glass.

“Booth” is a misnomer too. “Booth” reminds me of the precursor to something fun. You buy tickets to a movie or carnival rides at a booth. No such fun was happening today.

Really, the booth is purgatory, a limbo my clients sit in after they’ve made their way from the prison and to the courthouse basement’s holding cells, but before they enter the courtroom where they await final judgment.

This particular morning, I am wearing a navy flannel Brooks Brothers No. 1 sack suit, a white shirt I freshly pressed at 5.30 that morning, and a somber tie that reflected my mood.

In gross juxtaposition, my client is in an orange prison jumpsuit and has a thermal on underneath to keep warm. I guess this hell follows Dante’s rules.

My client is a good man who’d recently made a series of terrible decisions, all of which led to where he is today. Despite his cock-ups, he was truthful and admitted his mistakes not only to his family, but to members of his community.

Then the police became involved.

And he got arrested.

And his mistakes became a “case.”

And that’s how we ended up on opposite sides of the same sheet of glass on Tuesday at 9.32am. Read the rest of this entry »


Of Unreasonable Searches and Seizures and Twitter fights.

April 2, 2013

Of Unreasonable Searches and Seizures and Twitter fights.

I get into a twitter fight over the illegality of Stop and Frisk as implemented by the PPD with the Philadelphia District Attorney, and next thing I know I’m on Philebrity.

Maybe Twitter is useful for more than sharing cat pictures.*

*Like sharing dog pictures.

P.S. Stop and frisk is still bullshit.


Stop and Frisk in Philadelphia is Bullshit.

March 20, 2013

Search and SeizureI was listening to my local NPR outlet this morning when a particular news story piqued my interest — the ACLU and Kairys Rudovsky Messing & Feinberg had just filed their Third Report to the Federal District Court for the Eastern District of Pennsylvania regarding the monitoring of stop and frisk practices. I said to myself: “I need to get a copy of this report right away.”

Which I did. And I read it. And I got furious.
Read the rest of this entry »


Justice Thomas Cracks a “Joke”; the Real Joke’s On Us.

January 15, 2013

Justice Thomas Cracks a “Joke”; the Real Joke’s On Us.

Reading the newspapers yesterday you’d think it was a slow news day. But was it really?

Hardly.

While “journalists” chuckled over Justice Thomas’ incoherent ramblings about Yale, did anyone think to discuss the underlying case that SCOTUS was hearing?

Gideon of A Public Defender did. You should read his post right now. Here’s an excerpt:

You know what’s missing in every single one of these articles? A mention of Boyer. Who’s Boyer, you ask? Boyer, of Boyer v. Louisiana [SCOTUSBlog preview; oral argument transcript here]. Boyer, who sat in jail for 5 years facing the death penalty because the State could afford to only pay one of his lawyers – one that wasn’t qualified to represent him in a death penalty case. Boyer, in whose case witnesses died while he was waiting for the political football of indigent defense funding to stop getting punted around from endzone to endzone like it was a Browns vs. Cardinals game. Boyer, whose egregious delay the state of Louisiana seeks to shrug off as not really important and certainly not their fault.

***

You want a story? I’ll give you a story: this is the 50th anniversary of Gideon v. Wainwright. That the decision trumpeted the arrival of an era of equal justice for all, but that era has never materialized. That states still woefully underfund indigent defense; that access to justice isn’t equal and that people get screwed. Every. Single. Day. And it’s this Court – Thomas and others – who have the authority to change that, to alter that reality for hundreds of thousands of Americans. Today for all my clients; tomorrow, perhaps for you.

But no. Let’s continue to be cute and write funny stories about what an odd man that Justice Thomas is that he hasn’t asked a question in 6 years and well, was he making fun of Harvard or Yale? Because, really, who gives a fuck about Boyer, right? Stupid Constitution getting in the way, just like Thomas always said.

Priorities.

TL;DR: Thomas mumbles, internet creams itself, Boyer sits in jail, Gideon weeps.

Another step in the Honey Boo Boo-ification of our media. Anything for a joke, right?

Edit: Scott Greenfield beat me to it.


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