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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Winning Ugly

June 18, 2014

Judge Papov looked pissed.

“You’re really going to instruct your client not to answer the question and waste everyone’s time, Mr. Rushie?”
“Judge, you’re not giving me much of a choice here…”

The judge didn’t even bother to hear argument. He looked at me, looked at my older adversary, and made a decision as soon as we reached the podium.

A week ago I had instructed my client not to answer a question in a deposition because it called for privileged information. The other side filed a motion to compel a response.

Before coming to court I had done the research and written a brief on the issue, confirming that my instruction not to answer was appropriate. No judge in their right mind would force my client to divulge privileged information with 5th Amendment implications, especially when the case law was this clear, right?

Of course, this was discovery court, where the dreams of young lawyers go to die. When it came to justice or convenience, convenience always seemed to win out. At one point the judge mentioned “If you don’t like my decisions, maybe you should work out your disputes before hand.”

As the judge glared down, I think this was the last place in the world I wanted to be. It was 85 degrees, and was packed to the brim with dozens of lawyers hoping to be heard quickly and get out. I waited over two hours to be called. Until my hearing, the judge had been moving through his docket quickly, mostly making decisions that seemed almost arbitrary. For a brief second, pressed shirt now drenched with sweat, I pictured myself laying on a beach somewhere drinking a piña colada. I could hear the ocean.

Judge Papov brought me back to reality and bellowed, “Mr. Rushie, I told you once, and I will not tell you again. Instruct your client to answer the question. I don’t have all day.”
Gary turned and whispered in my ear. “We can’t give them that information, right? You gotta fight for me…” Gary was right.

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Smokey the Cat

January 5, 2014

“Jordan, have you ever done an eviction before?” my boss James asked me. I had been working for a small firm in suburban Pennsylvania for about three years now, and was beginning to hit my stride as a lawyer. James was letting me handle files from start to finish with more regularity.
“Nope. But I’m sure it’s not rocket science. Just give me the file, old man,” I said with a grin. “This one sounds boring.”

The case was simple enough. A woman named Agnes was renting a house from one of James’s biggest clients. She hadn’t paid her rent in a long, long time. The client decided he didn’t want her living there anymore. Too easy, or so I thought.

I drove to the courthouse that day and filed the paperwork. A few weeks later I had a default judgment and a writ of possession, meaning I could have the constables remove the tenant with force, if necessary. The constable posted notice on the house, and we made arrangements for the eviction. Again, too easy. Chalk this up as another win.

“How is the eviction case coming along, Jordan?” James asked me a few weeks later.
“Great! We got a default judgment. I’m going to the house tomorrow morning to remove her. Next time consider giving me an interesting assignment, old man,” I said laughing.
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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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