Pubdate: Tue, 06 May 2014
Source: Phoenix, The (PA)
Copyright: The Phoenix 2014
Contact:  http://www.phoenixvillenews.com/
Details: http://www.mapinc.org/media/3874
Author: Michael P. Rellahan

CHESCO JUDGE REJECTS MANDATORY SENTENCING RULE FOR DRUG OFFENSE

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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