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.


Sometimes, our clients get ridiculous lawsuit threats…

August 1, 2014
View this document on Scribd

Sometimes, those ridiculous threats warrant an equally ridiculous response.

View this document on Scribd

Bagels, anyone? [Ed: "Liable Per Se"? What's that?]

Read more here: http://www.philadelinquency.com/2014/08/01/pdq-receives-lolsuit-threat-legal-dept-responds/

 


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.


Fishtown Chili Cook-Off Smashing Success, Despite Lack Of Guatemalan Insanity Pepper

March 26, 2013

Fishtown Chili Cook-Off Smashing Success, Despite Lack Of Guatemalan Insanity Pepper

The Fishtown Neighbor’s Association 3rd Annual Chili Cookoff was a rousing success. And while our spicy three-bean & seitan vegan Occupy Chili didn’t win this year, we had a great time. Kudos to FNA for another job well done.

Plus Jordan had an excuse to wear his cheesesteak hat.

Read more at Phoodie.


Occupy Chili

March 20, 2013

Occupy Chili

The 3rd Annual Fishtown Neighbors Association Chili Cookoff is this Sunday, March 24 at 2424 Studios in Fishtown.

Be there, or eat less chili and drink less beer than your friends will that day.

Buy your tickets here.


Developers and RCOs Take Heed: the Zoning Code Changes on March 25, 2013 — Bill No. 120889

February 6, 2013
"New" is all relative anyway.

“New” is all relative anyway.

Get ready for some changes in the New Zoning Code.

On January 24, 2013, Philadelphia City Council overrided Mayor Nutter’s veto and voted Bill No. 120889 into place. The Bill goes into effect on March 25, 2013. And just last night, we received a fact sheet from the Philadelphia City Planning Commission that displays the major changes, which mainly affect developers and Registered Community Organizations.

What does this mean for you? Well, if you’re a developer or on the board of a RCO, you have some new rules to follow, and probably some more work to do. Here’s a quick greatest hits.

Read the rest of this entry »


“Young Lawyer Happy Hour” — uh, where are all the lawyers?

January 25, 2013
Image

“But I read this book so I already know everything about civil litigation!”

I went to a young lawyer happy hour the other evening night held by the Young Lawyer’s Division of a local bar association. I hoped to maybe meet a few other lawyers in their first years of practice, perhaps share a war story or two, commiserate about Judge Jones or Judge Judy, and swap business cards.

As I saw it, it’s never a bad thing to know more lawyers to whom you could refer cases, or maybe have cases referred to me.

Did I mention free beer and food?

What could possibly go wrong?

Read the rest of this entry »


I Want to Eat a Cheesesteak with Richard Marx

January 22, 2013

Today I came across an article via Marc Randazza about Richard Marx. In the article, a blogger said Richard Marx is “shameless”. Marx in turn said “say that to my face” and met the guy at a bar in Chicago.

Well, here is the thing. I want to meet Richard Marx. too! But there is the problem on my end. I actually like Richard Marx. I have nothing nasty to say about him or his music. Truth be told, I actually like Richard Marx:

I mean, lets face it. The 80s were awesome. And Richard Marx wrote the kind of manly hair ballads you wanted to put on a mix tape for the girl you had a crush on.

So let’s try this….

Richard, I dug your music in the 80s, and I still dig it today. You’re pretty cool in my book. So if you’re ever in Philadelphia, will you come have a cheesesteak with me? I’m being serious. Don’t worry, we won’t go somewhere lame like Pat’s or Geno’s, we will go somewhere delicious like Tony Luke’s or John’s Roast Pork. [Editor's Note: Holy crap, Tony Luke lost 100lbs. Good for you, Tony! You look great.] It would be pretty awesome to have a cheesesteak with Richard Marx.

Don’t make me get 1,000,000 likes on Facebook. Let’s make this happen.


The Value of Going Off-Grid.

January 7, 2013
A Kensington Kristmas Window. Which I enjoyed while on vacation.

A Kensington Kristmas Window. Which I enjoyed. While on vacation.

It’s been a slow last few weeks here on Philly Law Blog — namely because we’ve been on vacation. I didn’t realize that stepping away could feel so good.

I’ve never really had the opportunity before. You see, throughout most of my life, I’ve worked retail jobs, including Starbucks, pizza shops, and clothing stores. And as those of you who’ve worked in the customer service industry know, your time is rarely your own. Vacation days don’t exist. You rarely get to call out sick. And sometimes, if there’s a no-show, you get called in to work on a day you expected to have off. Finally, those days that everyone else gets off — “holidays” — yea, well, those are usually the biggest retail days of the year.

Granted, being a lawyer is pretty damned similar. Your time is not your own. I recall that saying, “no plan survives contact with the enemy.” Well, the legal equivalent of that is “no vacation survives contact with clients, opposing counsel, or a judge.” Read the rest of this entry »


The 4 Hour Reputation, and How I Built My Zoning Law Practice

December 19, 2012

[Editor's Note: I wrote a piece about my zoning practice a little awhile back and then decided not to publish it. However, a few days ago I read this article by Rachel Rodgers in Forbes magazine. Her advice to other lawyers? Ditch the physical office and use social media to manufacture a reputation online, just like Tim Ferriss suggests in the book 4 Hour Work Week. The 4 Hour Expert method involves self creating publicity, and then using that publicity to perpetuate your self proclaimed "expertise." The idea behind the 4 Hour Expert isn't to acquire any actual expertise - just trick people into thinking you have them.

So who is Rachel Rodgers, and why is she in Forbes magazine?

To her credit, Rachel has implemented the 4 Hour Work Week model successfully. She started her own virtual law practice (called a "VLO" by cool fancy people), and declared it to be a success, thereby becoming a self-proclaimed authority on starting a VLO. How did she "become so successful?" According to this video (scroll to 19:45), Rachel initially used HARO (Help A Reporter Out) to get mentioned by a few "entrepreneur magazines", including Forbes and MSNBC, which she then used as "proof" that she is an authority. It was a great story for the press - young lawyer starts a fresh new law firm on the internet and becomes successful. However, it all sort of fell apart when put under some scrutiny.

Nevertheless, Rachel became a "4 hour expert" in starting virtual law offices by generating publicity for herself, and then using that publicity to manufacture expertise in starting VLOs. Now she sells the same "4 Hour" model to other people, which you can do with just about any area of law. But is the 4 Hour method really worth anything to a law practice in the long run...?]

Read the rest of this entry »


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