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.

 


Sometimes, our clients get ridiculous lawsuit threats…

August 1, 2014
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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/

 


Are You “Experienced”?

July 5, 2014

Not only a good album, but a good question. Attorney advertising has been around as long as I’ve been practicing law, as have the Rules of Professional Conduct, which govern attorney behavior, including advertising.

In Pennsylvania, attorney advertising is governed by Rule 7.2 of the Pennsylvania Rules of Professional Conduct. As part of these rules, a lawyer may not use “inherently subjective terms” like “experienced” to describe their practice. This rule seems to be observed more in its breach than in lawyers’ adherence to it. Google “Experienced Pennsylvania Lawyer” (or just click that link) and you’ll see what I mean.

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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 »


Trash Day

November 24, 2013

“Leo, bro, it’s Jordan… you gotta see this. It’s Christmas in Fishtown. Come to the office!”
“I have caller ID. I know it’s you, Jordan. Why are you calling me on a Saturday? And don’t ever refer to me as ‘bro’ again”.
“Bro, err, Leo. Just trust me. Come to the office. And wear jeans and a t-shirt if you own anything like that.”

Before me on that hot Saturday morning stood the most beautiful thing I had ever seen – a giant mountain of trash. Well, a mountain full of discarded office furniture. Old filing cabinets, used chairs, pens, desks, you name it. Apparently one of the businesses in our building had left abruptly and figured it would be too expensive to move any of the furniture, so they threw it all in a big dumpster. I swallowed my pride, called the building manager, and asked if I could take their trash.

“It’s trash, Jordan. You can do whatever you want.”
“Thanks, Jess! You’re the best!”

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Technology Is Still Not How You Build A Law Firm

July 7, 2013

Today I read an… interesting… article suggesting something that only lawyers on the internet believe. Apparently “virtual technology” (I guess stuff like cloud computing and iPads) is going to reshape the face of law. This will allow young lawyers with very little supervision to offer cheaper legal services to people, thereby undercutting large and mid-sized law firms. The author states:

I’ve seen new law school graduates successfully fill the void between the brick and mortar model and the other option of downloading do-it-yourself legal forms on-line by serving this market virtually.  Clients can find the attorney on line, the attorney comes to meet the clients  at a time and place convenient to the clients, the clients can access their attorney and documents on line and everyone is happy.

The obvious regarding my questions about “virtual lawyers” aside (where do they take depositions? Where do they store deposition transcripts, or client files securely for that matter?), here are a few observations from a young guy who has their own practice that is doing well.

Of course, take my advice for what it’s worth because I only started my own firm in 2012, and it could all fall apart tomorrow. But these are my musings…

Read the rest of this entry »


Just Keep Plugging Away – Some Thoughts From A Year In Solo Practice

June 28, 2013

We’ve been in business since February of 2012. Since it’s been longer than a year, apparently this is the part where I’m supposed to write a congratulatory blog post patting ourselves on the back, telling the world that our law firm is the greatest success ever, and that starting a practice was the best decision of our lives.

Truth be told? Money is still tight. I’m worried that every client who calls will be our last. I am still learning the basics of how to run a business, and I have made mistakes. I work longer hours than I did as an associate at a law firm, and there is no guarantee there will be enough money at the end of the month to buy craft beer. I’m still driving the same 2004 Honda Civic I bought right after law school.

That’s the glamorous life of a self employed young lawyer. Anyone who tells you differently is either lying or trying to sell something. It’s a hard living. A very hard living, and it will be for a long time. I can see why people burn out after a few years of doing it.

Now, things have gone well for us, and they are a lot better than when we first opened the doors. We just expanded our physical office space, and we have a part time per diem lawyer doing coverage work for us. Part of me was tempted to write a “we’re so awesome because we’ve done this for an entire year” post. I admit it.

But I still remember the first day we started. Well, more accurately, I still remember that first Friday being out on my own. Before starting my own firm, I worked as an associate at a reputable mid-sized shop making a comfortable living. I woke up every Friday and there was money in my bank account.

On this particular Friday, I woke up and there was no money in my bank account. I sort of panicked. What if I didn’t make enough money to pay the mortgage?

I needed some reassurance. A pat on the head. Someone to tell me that I hadn’t make a huge mistake and that everything would be fine. I called my former boss, James. James started his own law firm three years out of law school. Now he is getting ready to retire, where he can spend more time sailing and with his family. I was certain that James would tell me everything will be okay, and that someday I’ll retire rich and successful like him….

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What Do Lawyers Do? They Represent Clients

June 27, 2013

Last week I wrote some actual questions prospective law students should ask themselves before deciding to go to law school. One question is “Do you really want to be a lawyer?” This is probably the most important question any prospective law student should ask themselves.

Of course, this led to a discussion on JDUnderground, where some of the same lawyers who complain that their law schools tricked them into borrowing huge sums of money to enter into a career that doesn’t pay them as much as they feel they are entitled to be paid, also complained about how bad the profession is.

Their gripe? Having to find clients, and then represent them.

Terrible.

Read the rest of this entry »


Some Actual Questions To Ask Yourself Before Deciding To Go To Law School, By A Non-Ivy League Lawyer

June 23, 2013
"Your honor, with all due respect, it is getting dangerously close to happy hour."

“Your honor, I went to a better law school than my less prestigious opposing counsel, so clearly my argument is better”, said no lawyer ever.

I graduated from a T2 law school (Temple Law) in 2008, after transferring from Widener (a T4 law school). I have been practicing law for five years now.

In law school, I clerked for a Superior Court judge, and then for a large law firm. When I graduated, I worked for a small firm in suburban Pennsylvania. After three years, I left and worked for a mid-sized law firm for a year, where I still work as Of Counsel. Sort of on a whim, I left the firm in 2012 and started “The Fishtown Lawyers” along with Leo, which is what I do now.

So far, I am very happy with my career. It’s been fun, interesting, and rewarding. My mortgage remains paid, and I will probably take a vacation to somewhere nice this year.

However, I’ve read on the internet that law is the worst profession in the world, everyone is unemployed, and the only people making money are the ones who went to the best law schools in the country, got the best grades, and are now working for large law firms.

That is what they call the “law school scam” apparently.

As you might imagine, the questions I get from prospective law students normally go like this: “If I get into X school, and get Y GPA, what are my chances of getting into biglaw? I’ll at least be able to get a shot in mid-law if I don’t get biglaw with that GPA, right?”

Almost all the questions involve their chances of getting into biglaw, and what will guarantee them that job.

While I appreciate where you are coming from, those aren’t really the right questions. Or at least the important ones, if you are considering law school.

Where you go to law school is a very tiny aspect of how your career as a lawyer will go. It’s certainly not the most important one.

Here are a few questions I would ask myself before going to law school, and selecting a law school…

Read the rest of this entry »


A Scam Blogger Finally Gets It Right: “We went to law school for easy paychecks – not to actually become real lawyers!”

May 19, 2013

This morning Keith Lee directed me to a a post written by a law school scam blogger telling anyone who decided to offer productive advice to young lawyers to just go away. I normally ignore “law school scam blogs”, which are usually stupid blogs filled with juvenile rants about the legal profession, written anonymously by disgruntled, underemployed, lawyers using toilet humor.

However, I was shocked that “The Forgotten Attorney” actually got it right on why they are so angry:

Some people hoped to win the biglaw lottery and lost. Others went because they had a choice between law school, getting a McJob or becoming a commission only insurance salesman and law school seemed a hell of a lot easier and more respectable. But most people just wanted to be glorified and highly paid employees. Basically, a large number of us should not have gone to law school in the first place and if given the opportunity, will leave the profession in a heartbeat.

You can’t motivate these people. They want to escape. They want revenge or justice as they see it. They don’t want to learn the ropes on their own. They don’t want to observe court hearings. They don’t want mentors. They don’t want to go to networking events and probably can’t afford to go either. They are angry and bitter and in my opinion, rightfully so.

Exactly.

Read the rest of this entry »


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