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Posted by on Aug 23, 2017 in Sentencing | 0 comments

Com v. Aikens: Trial Court’s Instruction Gives Insight into Jury’s Findings

18 Pa.C.S. § 6318 criminalizes “Unlawful Contact with a Minor.” One might think of this statute as an inchoate for the entire child-sexual-victimizing portion of the criminal code. If a defendant contacts a child for the purpose of sexual victimization, that contact is sufficient to support a conviction under this statute.

The statute is graded as a 3rd degree felony—unless the crime which the defendant contacted the victim to lure her into is graded worse, in which case that grading controls. So when Markeith Aikens was convicted of contacting a minor for the purpose of securing Involuntary Sexual Deviate Intercourse—a 1st degree felony—Aikens’s conviction was graded as a 1st degree felony.

Aikens’s counsel ultimately appealed this determination on the basis that it could not be clear what Aikens was convicted by the jury of. He was charged with a third-degree crime, a first-degree crime, and Unlawful Contact under § 6318. But the trial court had instructed the jury that the Unlawful Contact required two elements: “First, that [Appellant] was intentionally in contact with a minor—the victim in this case—second, that that contact was for the purpose of engaging in an unlawful act—and in this case, that unlawful act is alleged to be [IDSI], the crime that we just discussed.”

The jury found Aikens not guilty of IDSI, but found him guilty of Unlawful Contact.

Majority by Baer: Trial Court’s Instruction to the Jury Makes it Clear which Substantive Crime Jury Verdict found Defendant was Contacting the Minor to Commit

Justice Max Baer, writing for the 6-0 majority (Justice Mundy did not participate), ruled that the trial court’s (apparently erroneous) instruction made clear what Aikens was actually convicted of. The law presumes that juries follow instructions, no matter how silly this presumption may be in reality, and the jury was instructed that Unlawful Contact could only be satisfied if they found that Aikens had contacted the minor to commit IDSI. Thus, unlike in prior cases which Aikens was relying on, the court did not have to guess at which crime the jury believed Aikens was attempting to commit when he contacted the minor.

Significantly, these concerns about not guessing at the defendant’s underlying crime are not merely statutory, but are constitutional. The Supreme Court of the United States’s Apprendi v. New Jersey held that a jury must find, beyond a reasonable doubt, any aggravating factors necessary to enhance a defendant’s sentence. Thus, unless it can be proved that a jury found the
“aggravating factor” of a heightened underlying crime, the lower standard of grading (and punishment) must prevail.

Here, the trial court’s instructions made clear the underlying crime for which defendant was being convicted. Our Supreme Court rejected defendant’s arguments (and the Commonwealth’s responses) regarding inconsistent verdicts in this case. There was no inconsistent verdict, the Court found. “Rather, the jury’s verdicts merely indicate that Appellant did not actually commit IDSI with respect to the minor victim, but did unlawfully contact the minor victim for purposes of engaging in IDSI.”

Conclusion: Clear case, but quandary for defense counsel

This case appears to be straight-forward, and correctly decided. But it presents an interesting quandary for a defense attorney in a case like this. The trial court’s jury instruction favored the defendant initially. After all, the trial court should have thrown a wider net: “You can convict the defendant of Unlawful Contact if you think he contacted the victim for the third-degree crime or the first-degree crime.” But the narrower net comes back to bite in this case, because it is clear the Defendant contacted the minor for the worse crime, and thus, that he must face the higher penalties of first-degree grading. Defense counsel in future cases may have to strategically navigate between accepting the narrower net of the trial’s instructions or the higher likelihood of ambiguity that would help avoid higher grading for Unlawful Contact.

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Posted by on Jul 21, 2017 in Criminal, Sentencing | 0 comments

Com v. Cullen-Doyle: Elementary, dear Watson—First Time Offenders are Eligible for RRRI

The Pennsylvania Supreme Court holds in Com v. Cullen-Doyle that the Recidivism Risk Reduction Inventive Act’s (RRRI) eligibility requirements were not meant to exclude a first-time violent offender pleading guilty to first-degree burglary.

The RRRI offers reduced prison times in exchange for participation in certain programs. One criterion of eligibility is that the offender must lack a “history of present or past violent behavior.” Mr. Cullen-Doyle pled guilty to First-Degree Felony Burglary, and asked to be sentenced under RRRI. The trial court denied his eligibility on the basis that his current guilty plea demonstrated present violent behavior.

Majority by Saylor: Ambiguous statute was intended to offer incentives to first-time offenders

Chief Justice Saylor, speaking for the 4-3 majority, holds that the term “history of present . . . violent behavior” is ambiguous. The General Assembly did not mean to include a first-time conviction for which the defendant is being sentenced in determining eligibility.

The majority offers three basic rationales for this conclusion. First, the legislature intended to offer greater incentives to avoid recidivism to first-time offenders than repeat offenders. Thus, when a first-time offender presents, it makes sense that RRRI should be available to him. Second, the inclusion of certain disqualifying crimes, and the exclusion of others, demonstrates the legislature’s intent in this regard. The statute explicitily disqualifies defendants guilty of certain crimes; the legislature’s failure to include burglary was intentional, and should be treated as such. Third, the rule of lenity bolsters this conclusion.

The rule of lenity is the concept that a defendant should get the benefit of the doubt in cases of criminal statutory construction. The rule of lenity applies not only to substantive criminal statutes, but also to statutes affected penalization, such as the present case. Thus, where the statute is capable of two different readings, the defendant should get the benefit of the doubt. This is the criminal equivalent of the contra proferentem doctrine in contract law, or the “your brother cuts the last piece, you choose the bigger one” rule familiar to those of us with siblings.

Dissent by Todd: History of Present . . . violent behavior” unambiguously includes all instances of violent behavior

Justice Todd dissents, joined by Justices Dougherty and Wecht, arguing that the statute is written to unambiguously include all violent behavior—past and present. Justice Todd rebukes the majority for failing to offer any alternative reading of the statute which would make the present violent conviction irrelevant, and concludes the General Assembly’s goal was to exclude violent offenders from eligibility for RRRI.

Conclusion: Narrow ruling, but is the Rule of Lenity expanded?

This case is a fairly narrow ruling. The Court hedges its ruling at key points, emphasizing that “under these circumstances,” RRRI sentencing should be available to a defendant. Though this ruling will certainly affect some defendants, the Court leaves open a trial court’s discretion to determine the appropriate sentence.

However, the Court’s invocation of the Rule of Lenity is important, particularly because this case is on the fringe of where the Rule of Lenity is typically invoked. I don’t mean to suggest the Court is wrong—I think they’re right that Lenity is implicated—but this bold application of the Rule invites its application even in situations where the Commonwealth’s grace is implicated. To put it differently, if the Rule of Lenity brings a defendant under an alternative, more merciful sentencing scheme, does it also offer a defendant hope to get on ARD where he is on the edge? Can it be invoked to justify treatment court? This ruling will certainly be a strong citation in arguments for defendants to be admitted to alternative punishment programs in the future.

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