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Posted by on Feb 22, 2018 in Criminal, PCRA, Sentencing | 0 comments

Com v. DiMatteo: PCRA petitioner entitled to new sentence where SCOTUS change occurred before his sentence was final

Commonwealth v. DiMatteo resolves an obscure overlap in sentencing rules in Pennsylvania, confirming that a Defendant is entitled to resentencing where he was not sentenced on his open plea before a SCOTUS decision established that the ultimate sentence he would receive was unconstitutional.

The Supreme Court of Pennsylvania rules unanimously that a PCRA petitioner is entitled to resentencing because Alleyne v. United States was decided by SCOTUS before Dimatteo was sentenced. This holding resolves an ambiguity that arose where the Court had already held that 1) Alleyne is not “retroactive” to those whose sentences were decided before Alleyne was handed down; and 2) negotiated guilty pleas cannot later be challenged on the basis that the sentence is illegal because the prosecution is entitled to the benefit of its bargain.

Alleyne ruled that an aggravating factor that results in a longer sentence must be found by a jury, not by a judge. At issue in this case is 18 Pa.C.S. § 7508 (“Drug trafficking sentencing and penalties”), which allowed for aggravated penalties depending on the weight of the drugs, which weight was to be determined by the sentencing judge.

Another issue addressed here is whether a sentence that is unconstitutional presents a cognizable claim under the PCRA, which only recognizes a claim for sentences that are “

Majority by Mundy: An Illegal Sentence Can be Addressed by a timely PCRA petition

Justice Mundy, writing for five members of the unanimous Court, holds that DiMatteo is entitled to have his unconstitutional sentence revoked, and to be resentenced. Mundy notes that an open plea is different from a negotiated guilty plea, which the Court had previously said should be upheld in a post-sentence challenge. After all, if the Defendant knowingly accepted a sentence on the longer end of the range, purportedly aware of the change in the law, he should not get to challenge that sentence later.

But an open plea is different. An open plea should not result in an unconstitutional sentence. DiMatteo gets a new sentence, and the Court agrees that § 7508 is unconstitutional under Alleyne. Furthermore, despite the fact that PCRA petitions are limited to essentially eight enumerated grounds, an illegal sentence can always be addressed if the PCRA petition is timely under the “greater than the lawful maximum” power of PCRA courts.

Concurrence by Baer: Commonwealth’s argument unsupported by the record

Justice Baer concurs, arguing that because PCRA petitions are the “sole means by which to obtain collateral relief” in Pennsylvania, “a claim generally challenging the legality of a sentence is cognizable under the PCRA.” In addition, Baer addresses the Commonwealth’s argument that its withdrawal of other charges was consideration for DiMatteo’s open plea, and that the plea should be considered “negotiated” on this basis. Baer finds this argument unsupported in the record.

Conclusion: Open Pleas Really Do Have Benefits

Open pleas are typically risky for defendants—they leave discretion in the trial court’s hands, and leave the defendant with little recourse on appeal if the judge lays down the hammer. In this unusual case, the defendant gets the benefit of the doubt because of his open plea. This case will have further-reaching effects than one might think at first glance. This isn’t just about Alleyne. It lays out an avenue for relief to anyone who sees a major SCOTUS case alter the landscape, even at the last moment.

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Posted by on Feb 14, 2018 in Appellate Procedure, Civil Procedure | 0 comments

Shearer v. Hafer: Interlocutory Appeal unavailable for civil pretrial dispute over right to counsel at psychological examination

In Shearer v. Hafer, the Supreme Court of Pennsylvania rules 6-1 that an interlocutory appeal was not appropriate in a pretrial discovery dispute over whether a plaintiff has the right to counsel at a psychological examination because the right involved was not important, and would not be lost on appeal.

The case arises out of a personal injury action. The Defendants asked for a psychological exam pursuant to Pa.R.C.P. 4010, and Mrs. Shearer insisted on having her attorney present. Mr. Hafer and his codefendant had a doctor who alleged that having anyone else present during the examination could result in the introduction of bias and distortion of the data, and refused. After the Court ruled for the Defendants, Shearer asked for certification of interlocutory appeal pursuant to Pa.R.A.P. 313, which allows appeal if 1) the issue is “separable from and collateral to the main cause of action; 2) the right involved is too important to be denied review; and 3) the question presented is such that, if review is postponed until final judgment in the case, the claim will be irreparably lost.”

Both parties agreed that this case was appropriate for interlocutory appeal—but such an appeal is jurisdictional, and while SCOPA retains King’s Bench authority to step into any case at any time, it prefers to see jurisdictional bars as actual bars to its authority to step in.

Majority by Todd: Right to counsel at pretrial examination is not of constitutional importance, will not be lost on direct appeal

In a 6-1 decision, Justice Todd and the Court hold, sua sponte, that the appeal fails to meet the last two of the three prongs of the interlocutory appeal rule, and the case must be remanded without reaching the merits. The majority takes a long look at the history of interlocutory appeals in the Federal Courts, and notes that Pennsylvania is more permissive than the Federal Courts on granting such appeals. (The Court does not discuss this, but this difference in policy might be due in part to Federal Jurisdictional rules, which are not a concern for courts of general jurisdiction, i.e. state courts).

The Court recites the three-part test for interlocutory appeals, and finds that the present appeal fails on the latter two prongs. While the appeal is separable from the main cause of action, and therefore satisfies the first prong, the alleged right to counsel at a psychological examination is not the type of constitutional interest or interest deeply rooted in public policy which “would go unprotected without immediate appeal” such that it overrides the “efficiency interests served by the final order rule.”

Furthermore, the plaintiff’s right to counsel at such an examination will not be irreparably lost if the matter waits until final appeal for adjudication. Although Mrs. Shearer will have to sit through an examination without counsel, she can ultimately prevail on appeal, obtain a new trial, and have counsel at the examination which will be used in the subsequent new trial. Thus, her rights will not be lost.

Concurrence by Wecht: Non-delegation doctrine should prohibit the rules invoked here

Justice Wecht reiterates the concerns that gave rise to Protz v. WCAB last year, detecting “a palpable risk that reliance upon standards written by nongovernmental organizations, such as the APA . . . may run afoul of the non-delegation doctrine.” By incorporating guidelines promulgated by the National Academy of Neuropsychology into its code of conduct, the State Board of Psychology (let’s take a moment to consider why it’s a “State” board, and not a Commonwealth board, by the way) may have promulgated unenforceable ethical rules in this respect. Wecht emphasizes that the issue is not presented in this appeal, but that agencies should be careful in this respect.

Dissent by Mundy: “Importance” prong is not limited to matters of constitutional importance, and right to counsel may be essentially lost on direct appeal in this case

 Justice Mundy would not interpret the “importance” prong as referring only to constitutional matters. “Rule-based rights may well be significant relative to the final order rule and be deeply rooted in public policy.” Mundy also expresses her concern that the passage of time may render a subsequent psychological exam prior to a new trial may indeed cause the rights at issue to be lost.

Conclusion: Interlocutory Appeals Disfavored

The holding in this case demonstrates that interlocutory appeals are disfavored. Even where both parties and the lower court agree that an appeal is appropriate and will save time in the action, the appellate courts can refuse to hear it. I expect that this decision may limit the interlocutory appeals asked for, taken and resolved on the merits in the future.

Additionally, Justice Wecht’s concurrence invites future challenges to AMA and NAN guidelines making their way into the law. Attorneys would be wise to keep an eye out for challenges to these types of statutes in the future.

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Posted by on Feb 13, 2018 in Criminal, Murder, PCRA | 0 comments

Com v. VanDivner: Three Part Miller Test Establishes Sanity for Death Penalty

The Supreme Court of Pennsylvania ruled 6-0 in Commonwealth v. VanDivner that a defendant whose intellectual impairments interfere with his ability to cognitively adapt is mentally incompetent as regards the death penalty in Pennsylvania. Under SCOTUS precedent Atkins v. Virginia, such an individual may not be put to death. This case also serves as a reminder that a death penalty case which comes to the Court under its exclusive appellate jurisdiction over death penalty cases is remanded upon the Court’s ruling that the death penalty is inapposite for further proceedings in the Superior Court.

The case comes as a PCRA petition, arguing that his counsel was ineffective in failing to appropriately argue the evidence in regard to his mental deficiencies before age 18.

Todd: Interaction Between the First Two Prongs of the Miller test is Key to Inquiry

Speaking for the unanimous 6-0 majority, Justice Todd rules that VanDivner met the three part “Miller” test for mental incapacity, and that trial counsel’s failure to flesh out VanDivner’s significant limitations rendered him ineffective under Strickland.

In Com v. Miller, 585 Pa. 144 (2005), SCOPA established a three part test for determining mental incapacity for Eighth Amendment purposes:

  • Limited intellectual functioning;
  • Significant adaptive limitations;
  • Onset prior to age 18.

There is no “IQ cutoff” score to determine limited intellectual functioning, but rather, the “interaction” between the individual’s intellectual limitations and adaptive limitations determines the degree of incapacitation under this inquiry. Furthermore, the assessment is based on an individual’s “typical” rather than maximum performance. VanDivner’s voluminous evidence included testimony of his limitations prior to age 18, along with the substantial ways that he was limited, not only in IQ, but in his behavioral and adaptive abilities. The Court rules, therefore, that

Upon concluding that VanDivner is not eligible for the death penalty, the Court reclassifies the case as non-capital and sends it to the Superior Court for consideration of VanDivner’s other claims regarding his conviction.

CJ Saylor: Atkins justifies vacating sentence without ineffective assistance

Chief Justice Saylor concurs, arguing that a violation of the Eighth Amendment justifies vacating a sentence without a showing of ineffective assistance of counsel. Saylor would not use ineffective assistance as an “overlay” to get to the desired result but, upon a showing of a constitutionally-unsound death penalty verdict, would vacate the sentence on substantive grounds, namely, the imposition of sentence upon a mentally incompetent defendant.

Conclusion: Miller test reaffirmed

This case doesn’t exactly set new precedent or break new ground. The Miller test for mental incompetence has been the law in Pennsylvania for some time. But this case reaffirms the required connection between deficient IQ and cognitive adaptability. The case also emphasizes that an individual’s cognitive weaknesses are measured by this test, not the individual’s strengths. Put differently, someone who has ups and downs should be measured according to their down days, and the evidence considered in light of how low they can go.

VanDivner avoids the death penalty, and lives to fight another day in the lower courts over his underlying murder conviction.

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Posted by on Feb 13, 2018 in Workers Compensation | 0 comments

County of Allegheny v. WCAB: Attorneys’ Fees Awarded cannot be refunded after successful appeal

In a unanimous decision, the Supreme Court of Pennsylvania ruled in County of Allegheny v. Workers Compensation Appeal Board that an award of attorneys’ fees against an employer for an “unreasonable contest” cannot be disgorged, even after a successful appeal by the employer.

The Workers Compensation statute provides for attorneys’ fees to be awarded to an employee unless the employer can show that the contest of liability had “a reasonable basis.” In this case, the Workers Compensation Appeal Board assessed $14,750 in attorneys’ fees against Allegheny County for unreasonably contesting an award. Allegheny County asked for a supersedeas of this amount pending appeal, which was denied. The County paid the amount, and appealed the case, ultimately winning before the Commonwealth Court. But the County’s request to be repaid its attorneys’ fees was denied.

Baer: Workers Comp statute provides no repayment for attorneys’ fees

Writing for a unanimous Court, Justice Baer explains that the courts are without authority from the legislature to order the repayment of attorneys’ fees in Workers Compensation cases after the payments have been made. While the Workers Compensation statute explicitly allows employers to seek repayment from a state-created fund for amounts paid out to a worker which are later overturned on appeal, there is no such fund or provision for the repayment of attorneys fees.

A supersedeas should have been granted by the courts below for this very reason, as government units are supposed to be granted supersedeas on appeal pursuant to Pa.R.A.P. 1781. Having been denied this right, however, Allegheny County was left without a remedy. This conclusion was bolstered by the plain language of the statute, and also by the underlying policy considerations the legislature embraced. Liability contests by employers are meant to be discouraged, and if a few employers end up losing out on some attorneys’ fees, this is better for the Commonwealth’s workers in the long run.

“It is not the function of this Court to add missing language to a statute in order to provide relief,” the Court concluded.

Conclusion: “Unreasonable” is in the eyes of the beholder

The Court properly concludes that the statute does not contemplate the disgorgement of attorneys’ fees paid out before the appeal. This case reveals what appears to be a hole in the statute. An employer can make a challenge to liability that is so reasonable that it’s actually the winning argument on appeal, but can still end up paying out the attorneys’ fees attendant on an “unreasonable challenge.”

This case will hit self-insured private employers hardest. Because private employers are not entitled to the supersedeas of Pa.R.A.P. 1781, those who self-insure will be left in a tight spot if their contest to liability is deemed “unreasonable.” An appeal will leave them without remedy, and may ultimately force them to settle sooner.

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Posted by on Feb 13, 2018 in Attorney Discipline | 0 comments

ODC v. Pozonsky: Judge Who Stole Drugs for Recreational Is Disbarred

It will qualify as the least surprising holding of the year: in Office of Disciplinary Counsel v. Pozonsky, the Supreme Court of Pennsylvania ruled 7-0 that a former Court of Common Pleas judge who routinely stole drugs from an evidence room in the courthouse must be disbarred from the practice of law.

Paul Pozonsky was an MDJ and Judge of the Court of Common Pleas in Washington County (home of the Pennsylvania Trolley Museum) for 27 years. During his time as a CCP judge, he presided over a number of drug trials and implemented the Treatment Court of Washington County. As judge of the Treatment Court program, Pozonsky set up a centralized “evidence locker” where confiscated drugs were to be locked up. Over the course of at least two years, Pozonsky would spirit away cocaine out of the courthouse to use at home. He was discovered when he issued a suspicious order calling for the destruction of the drugs kept in the evidence locker.

Pozonsky resigned as a judge, spent a month in prison, moved to Alaska, and rehabilitated from his drug problem. In the underlying proceeding, he was disbarred, and he appealed, arguing that his rehabilitation, his remorse, and the testimonials of past clients and attorneys should weigh against his complete disbarment.

Todd: The Integrity of the System Justifies Disbarment

Justice Todd, writing for 5 members of the unanimous Court, dismissed Pozonsky’s defenses, arguing that the weight of his hypocrisy had left a stain on the courts and on the legal profession. The Court also ruled that Pozonsky had not established sufficient evidence for a Braun defense, which allows lenience in the disciplinary process when an attorney has established a “causal connection between his addiction and his actions.” Pozonsky put on only lay evidence of the connection between his drug problem and his criminal activity, and no expert was called. Accordingly, the Court was not willing to consider this a mitigating factor. Outraged at the violation of the public trust, the Court unanimously ruled for total disbarment.

Concurrence by Baer: Braun defense lacked evidence, but was substantial

Justice Baer, joined by Justice Donohue, agrees with the outcome, but finds the case “much more challenging to resolve.” Baer agrees that Pozonsky did not put on sufficient evidence to sustain the Braun defense, but felt there was circumstantial evidence to support the defense. Had Pozonsky put on an expert, Baer likely would have ruled differently.

Conclusion: No Surprise Here

This case highlights the worst in human nature: a judge, casting judgment on others in the daylight for the very crimes he commits in the night. The case will be held up for many as an example of what privilege and money can get you. A respected judge commits horrendous crimes, siphoning off the drugs of the defendants who come before him for his own use, and he spends a month in jail for it.

SCOPA does its best to restore trust in the profession, issuing the ultimate penalty. One can only hope that Mr. Pozonsky has truly found sobriety and will be able to turn his own life around.

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