Pubdate: Sat, 03 May 2014
Source: Times Herald, The (Norristown, PA)
Copyright: 2014 The Times Herald
Author: Michael P. Rellahan
Bookmark: (Mandatory Minimum Sentencing)


WEST CHESTER -- For the second time in a month, a Chester County 
Court judge has declared a mandatory sentencing provision inserted 
into a drug trafficking charge unconstitutional because it 
contradicts a U.S. Supreme Court decision handed down in June of last year.

Common Pleas Court Judge Phyllis Streitel, in a one-page order issued 
April 29, said the provision that would set a prison term for the 
defendant, Demetrius Aaron Hardy of Las Vegas, Nev., at three years 
could not be applied to him in the formal charges leveled by the 
prosecution without butting up against the high court's decision.

In a majority opinion written in 2013 by Justice Clarence Thomas, 
mandatory sentences were deemed to be a factor that only juries, and 
not judges, could take into account when deciding the guilt or 
innocence of a criminal defendant. The case of Alleyne v. United 
States, the defendant was charged with having a firearm in his 
possession while delivering illegal drugs, a fact which would trigger 
a minimum mandatory sentence.

Alleyne has set prosecutors across the state, including in Chester 
County, scrambling to add the minimum mandatory provision to drug 
charges. It has also led to a slew of challenges to the moves, 
including an earlier county case that is now before the state Supreme Court.

"It's a mess," said one veteran West Chester defense attorney 
familiar with the appeals but who spoke on the condition on anonymity 
because he was not authorized to comment on the matter. "Most of the 
judges are finding these cases to be unconstitutional. It has go to 
be fixed by the legislature, or else there won't be any more mandatories."

Mandatory sentences gained popularity in the 1980s and are now 
commonplace in many drug prosecutions. District attorneys appreciate 
them because they add a level of security in what sentence a 
particular defendant will receive. Judges are uncomfortable with them 
at times, because they remove a level of discretion they have in 
sentencing individual defendants. And defense attorneys bristle at 
them, because they give the prosecution added leverage during plea 
negotiations with the threat of imposing a mandatory minimum should 
the defendant seek to go to trial.

In the case Streitel ruled in on Tuesday, Hardy, 35, was stopped by 
Coatesville police at 9:41 p.m. on Nov. 18 driving a Volkswagen in 
the city without its headlights on. When officer Joe Thompson checked 
Hardy's driver's license, he learned that Hardy was wanted on drug 
charges in New York.

After the officer took Hardy into custody, Thompson searched his car 
and found a plastic sandwich bag containing 99 bags of crack cocaine. 
He was arrested the next day and charged with possession with intent 
to deliver crack cocaine, and possession of drug paraphernalia.

In court Tuesday, Assistant District Attorney Kevin Pierce of the 
district attorney's drug unit asked Streitel to allow him to add an 
amended count to the charges against Hardy that included the 
mandatory minimum provision from the state's sentencing law. She 
approved the amendment.

But Hardy's defense attorney, Joseph P. Green Jr. of West Chester, 
objected to the move, arguing that the mandatory minimum law in 
Pennsylvania specifically holds that it is not an "element" of a 
crime, and that its applicability can be determined only by a judge, 
not a jury, in opposition to the Alleyne decision. Thus, Green 
argued, the charge was unconstitutional.

Streitel agreed, and soon afterwards issued her order dismissing that 
charge against Hardy. Pierce, in court, indicated that the 
prosecution would likely appeal her ruling, which was expected.

Streitel issued a similar order on April 25 in the case of a 
49-year-old West Nantmeal man, Dennis "Spanky" Alenovitz, who was 
arrested in early 2013 on charges that he sold methamphetamine to an 
confidential informant from his home on Pumpkin Hill Road over a 
two-month period. Alenovitz is also represented by Green.

The weights of the methamphetamine Alenovitz is alleged to have sold 
would have, in the past, automatically set his mandatory prison terms 
at three or four years, depending on the transaction, should the 
prosecution ask the judge sentencing him to impose it. But under the 
Alleyne ruling, the weight of the drugs triggering those mandatory 
sentences would have to be determined by a jury hearing Alenovitz's 
case, not a judge, and be proven beyond a reasonable doubt.

Thus, the district attorney's office in February similarly asked 
Streitel to amend the charges against him to include language about 
the mandatory sentencing provisions.

In his motion asking Streitel to declare the new charge 
unconstitutional, Green wrote that the provisions that were added to 
the charges against this client "are unconstitutional because they 
specifically provide that their predicates are not an element of an 
offense and must be proved to the satisfaction of the court at 
sentencing by a preponderance of the evidence." That contradicts the 
requirements set forth by Thomas' ruling in Alleyne, he wrote.

Green noted that in December, Judge David Bortner had already ruled 
in another county case that adding mandatory provision to a criminal 
charge was unconstitutional. That case, involving a Kennett Square 
man arrested by state police in April 2012, involves a mandatory 
sentence for selling drugs in a school zone.

That case is currently before the state Supreme Court on appeal by 
the prosecution. It is among 11 such cases the court has agreed to 
hear to sort out the constitutionality of the provision, including 
ones from Montgomery and Luzerne counties.

In the case Bortner decided, the prosecution argued that in order to 
meet the requirements of Alleyne, the court could simply add a 
special question on the jury's verdict slip to ask whether it 
determined that the sale had taken place within a certain distance of 
a school -- much like jurors in civil cases are routinely asked to 
do. But Bortner ruled that the state Superior Court has recently 
noted that such attempts would not meet the standards set by the U.S. 
Supreme Court.

"In light of this comment," Bortner wrote in his decision, "we cannot 
confidently conclude that the use of a verdict slip special 
interrogatory would be effective to remedy an unconstitutional 
statute. We observe that this is a matter for the Pennsylvania 
legislature to address."

The cases before the state Supreme Court for review will likely not 
be addressed until later this year, attorneys familiar with the 
caseload speculated. Thus, Green asked Streitel that she set a new 
bail for Hardy, who is currently being held in Chester County Prison 
on $100,000 cash bail. Pierce said he would not opposed an unsecured 
bail for Hardy.

Whether or not the mandatory provisions added to the charges are 
upheld or thrown out, the cases against Hardy, Alenovitz, and the 
defendant in Bortner's case are not going to disappear; they will 
still be charged with selling drugs. If convicted, they would also 
still be subject to possible prison terms - even as long as the 
mandatory sentences the prosecution is seeking.

But the eventual sentence in those cases would be up to a judge, not 
a prosecutor.
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