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Posted by on Feb 22, 2018 in Criminal, PCRA, Sentencing | 16 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 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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