PA Issues New Sentencing Guidelines for Probation Violations

The Pennsylvania Sentencing Commission recently issued new guidelines concerning violation of probation hearings (“VOP hearings”). The Sentencing Commission’s decision could dramatically change the way in which probation violations in Philadelphia and throughout the state are handled because the court no longer has unlimited discretion in fashioning a sentence.

Further, the Sentencing Commission has created the guidelines in such a way that they recommend significant prison sentences for most probation violations no matter how minor. It will take some time to see how seriously judges take the guidelines, and there has also been a recent push in the legislature to limit the unlimited discretion of judges to impose extreme prison sentences for probation violations which could lead to future changes. For now, however, the creation of these guidelines, which typically recommend jail time, appear to be a step in the wrong direction. 

What is a Violation of Probation Hearing in Philadelphia?

A VOP hearing occurs when a defendant violates a judge’s probation. There are two types of potential violations: technical violations and direct violations. Technical violations occur when the defendant does not comply with some condition of his or her probation. For example, let’s assume that a condition of a defendant’s probation is that the defendant attend anger management classes. If the defendant does not go to the anger management classes, then the probation officer could recommend that the judge find the defendant in violation of his or her sentence. The judge, after holding a hearing, could then decide to revoke the defendant’s probation, impose a new period of probation, or even impose a period of incarceration on the defendant. This is just one example. Judges are given broad discretion in fashioning their sentences and thus can impose a variety of conditions on a defendant. This means that a defendant can be found in violation of probation and sentenced to prison without committing any new crimes.

Direct violations are usually more serious than technical violations. A direct violation occurs when a defendant is convicted of a new crime while on probation for another crime. Judges will often impose harsher sentences on defendants who have committed direct violations than on defendants who have committed technical violations, and potential direct violations often lead to probation detainers which prevent the defendant from being released until the new case has been resolved. Additionally, a defendant’s back judge can impose a sentence that is consecutive to the sentence the defendant received on his new case. Therefore, direct violations can cause great harm to a defendant.

What are the New Sentencing Guidelines?

The new sentencing guidelines affect both technical and direct violation hearings. If a defendant is found to be in technical violation, then the court is to consider the defendant’s original guidelines from the time of sentencing on the offense when deciding on a new sentence. For example, let’s assume that a defendant was serving a sentence on an Aggravated Assault that is graded as a felony of the first degree. Let’s also assume that when he was sentenced, he had a prior record score (“PRS”) of 1. As such, his guidelines were 42-60 months of incarceration, with the judge given the discretion to add or subtract 12 months to or from the sentence. Now let’s assume that this defendant was ordered to attend anger management classes, but he did not do so. At his VOP hearing, per the new sentencing guidelines, the court could sentence him to anywhere from 30-72 months for this technical violation. As such, a defendant can receive a worse sentence than what he originally received based on these new guidelines.

Things get worse if you are in direct violation on your probation based on the new sentencing guidelines. If you receive a direct violation, your new guidelines are most likely higher than they would be if you only had a technical violation. Instead of being sentenced to the original guidelines, if a defendant is found to be in direct violation, then the defendant will be resentenced on an increased PRS (the courts add one point for defendants with a prior PRS of 0-4, if a defendant is a 5, REVOC, or RFEL then no points are added).

To help explain this, let’s use our defendant from the previous example. Instead of not attending his anger management classes, he picks up a simple assault case which results in a conviction. At his Gagnon II hearing at which he is re-sentenced, the judge must now add a point to his PRS. So instead of being a 1, he is now a 2. Now his guidelines for resentencing are 48-66 months of incarceration plus or minus twelve months for aggravating or mitigating circumstances. Therefore, because of his new direct violation, his guidelines on his VOP range from 36-78 months. As one can see, these new guidelines are significant and can result in defendants spending more time incarcerated than they previously would have been. In many ways, this is actually worse than simply leaving it to the discretion of the judge as the rules require that the judge consider these guidelines when imposing a sentence and place any reasons for departing from them on the record.

The problem with these guidelines is that the sentencing guidelines call for jail in almost all cases. It can be almost draconian to impose a significant jail sentence on someone for not complying with a condition of their probation or even being convicted of a minor crime such as a misdemeanor. If fully implemented, these guidelines have the potential to worsen the mass incarceration problem instead of alleviating it.  

Are The New Sentencing Guidelines Mandatory at a Probation Violation Hearing?

No. Just like the sentencing guidelines for the original conviction, courts are not required to impose guideline sentences. If a court imposes a sentence outside of the guidelines, then the judge must state in open court the reasons for the revocation and the sentence imposed. If a court imposes a sentence outside the guidelines, then the court must document the reasons why on the “Guideline Sentence Form” which then will be electronically submitted to the Pennsylvania Commission on Sentencing. This means that the guidelines are not binding on the court. But judges do tend to consider the guidelines and take them seriously when imposing sentence.

Facing Criminal Charges? We Can Help.

Philadelphia Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

PA Superior Court: Sentencing Guidelines Are Not Binding

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Conte, re-affirming that a trial court retains significant discretion in fashioning a sentence for a defendant following a trial. The court’s opinion illustrates the fact that the trial court is not bound by the Pennsylvania Sentencing Guidelines when deciding on a sentence. Further, the trial court may consider all of the allegations at issue even if the defendant has been acquitted by the jury of some of the more serious charges.

The Facts of Commonwealth v. Conte

The Pocono Mountain Police interviewed the complainant, the defendant’s daughter, in January 2016 about alleged sexual assaults. The complainant told the police that the defendant sexually assaulted her on numerous occasions when she was between the ages of four and eight years old. On January 29, 2016, a criminal complaint was filed that charged him with rape, involuntary deviate sexual intercourse, aggravated indecent assault, and endangering the welfare of children (“EWOC”).

Prior to trial, both parties litigated a number of pre-trial motions. The Commonwealth filed a 404(B) motion, which is commonly referred to as a Prior Bad Acts Motion, to introduce the testimony of T.F., who was an acquaintance of the defendant’s children. T.F. alleged that the defendant had asked her to join him in his car and had placed T.F.’s hand over his pants and on his penis. The trial court expressed hesitancy in allowing the Commonwealth to use the testimony of T.F. in its case-in-chief. As such, the Commonwealth stated that it would only use T.F. as a rebuttal witness if the defense were to present any evidence.

At trial, the Commonwealth called the complainant as well as her mother and her brothers as witnesses against the defendant. The defendant, as well as his current wife, testified at trial. According to the Superior Court, the trial testimony painted a very different picture of what occurred during these years than what the complainant originally stated to the police. In fact, according to the prosecution’s witnesses, the defendant treated the complainant like “a princess.” However, to the other children, the defendant was a “cruel, vindictive and violent man who harbored no dispute in the house and regularly meted out physical punishment.” The defense’s witnesses sought to counter this narrative by suggesting that although the defendant was a disciplinarian, the household itself was warm and a welcoming place for family and friends. The Commonwealth then called T.F. as a rebuttal witness.  

At the conclusion of the trial, the defendant was convicted of a single count of EWOC. He was acquitted of all other charges. The pre-sentence investigation report was prepared and the defendant was sentenced on June 20, 2017. At his sentencing hearing, the defendant called multiple witnesses to testify on his behalf. The defendant also spoke at his sentencing and stated: “I really don’t know why I’m here today.” The defendant’s guidelines were Restorative Sanctions to 6 months’ incarceration, with an upward enhancement of three months for the aggravated range. The judge proceeded to sentence the defendant to the statutory maximum of two and a half to five years’ incarceration.

In justifying this maximum possible sentence, the judge stated that the defendant was responsible for “the disharmony of the family.” Further, the sentencing court gave great weight to the testimony of the complainant. The complainant testified at the sentencing about the harm that she endured because of the defendant’s actions. Specifically, that she had attempted to commit suicide twice and has had difficult with normal healthy sexual relationships. As required in order to challenge a sentence on appeal, the defendant filed post-sentence motions. Those were denied. He then filed a timely appeal. Specifically, the defendant appealed the length of his sentence, arguing that the trial court abused its discretion when it imposed the statutory maximum, especially considering that he was found guilty of only one charge and that the trial court allowed T.F. to testify as a rebuttal witness. For purposes of this blog, only the appeal of his sentence will be addressed. 

Can I Appeal My Sentence?

Yes, but your rights are limited. Judges are given a significant amount of discretion in creating a sentence for a defendant. Further, a defendant’s sentence will not be overturned on appeal unless the sentencing court abused its discretion. This is a very high standard to meet, and thus a defendant’s sentence will remain undisturbed unless the trial court was excessively cruel. For an example of this, please see our blog post for Commonwealth v. Sarvey (https://goldsteinmehta.com/blog/unreasonable-sentence-for-pill-sale).

When fashioning a sentence, a judge is supposed to take into consideration several factors. As a preliminary matter, the sentencing court must consider the sentencing guidelines for a particular defendant. The sentencing guidelines analyze the severity of the offense (also known as the offense gravity score) and the criminal history of the defendant (also known as the prior record score). When a judge does this, they are able to determine the sentencing guidelines for the particular defendant. The purpose of this is to try and create uniformity with sentencings across the Commonwealth (i.e. someone who commits a particular offense with a particular criminal history in Harrisburg should get a similar sentence if that same person were to commit the same offense in Philadelphia).

However, it is important to note that the sentencing guidelines are not mandatory. Further, courts should also consider additional factors when they sentence a defendant. Courts consider things such as the age of the defendant; the facts of the case; whether the crime involved violence; whether the defendant is a threat to the community; the rehabilitative needs of the defendant; the defendant’s stated remorse or lack thereof; etc. In other words, a judge must consider the character of the defendant. Consequently, when one looks at the individual characteristics of a defendant, this can be justification for departing from the guidelines.

The Superior Court Affirms the Sentence 

The Superior Court held that the trial court did not abuse its discretion when it sentenced him to the statutory maximum. The Court rejected the argument that the sentence was excessive despite the fact that the defendant had been acquitted of the more serious charges at trial and that the guidelines called for a much shorter sentence. The Superior Court highlighted that the trial court had justifiable reasons for giving him the sentence that he received. Specifically, according to the Superior Court, the defendant did not show any remorse for his actions. Further, the Superior Court highlighted the lingering harm suffered by the complainant and her family because of the defendant’s actions. Therefore, the Superior Court held that the trial court did not abuse its discretion. The defendant will not receive a new sentencing hearing.  

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Attempted Murder. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Criminal Defense Attorney Demetra Mehta Quoted on Cosby Case by Associated Press

The Associated Press recently posted an article on the upcoming sentencing in the case of Commonwealth v. William Cosby. Philadelphia Criminal Defense Lawyer Demetra Mehta was quoted in the article for an analysis of Pennsylvania’s contested Sexually Violent Predator law and the impact of that law on the sentencing proceedings.

“Defense lawyers say the state’s latest sex-reporting law, despite several revisions, remains unconstitutional.

“It’s the modern-day version of a scarlet letter,” said lawyer Demetra Mehta, a former Philadelphia public defender, “which I think is sort of an interesting philosophical issue at this time with the #MeToo movement, but also criminal justice reform.”

. . . .

“This is going to probably be a very important case for sex-offender law when it’s up on appeal,” Mehta said. “It’s an area of law that is just sort of unsettled right now. . There’s a lot up on appeal, but there’s not a lot decided.””

— Demetra Mehta

Criminal Defense Lawyer Demetra Mehta

Click here to read the article.

Third Circuit Rejects De Facto Life Sentences for Most Juvenile Offenders

The United States Third Circuit Court of Appeals has just announced its decision in United States v. Grant, rejecting effective life imprisonment sentences for most juveniles as unconstitutional. Although other federal circuits had already addressed this issue, this was a case of first impression for the Third Circuit which will have dramatic consequences for juvenile offenders who are tried as adults in Pennsylvania and those who are already serving what would effectively be life sentences without parole. 

United States v. Grant

Goldstein Mehta LLC Criminal Defense Attorneys

In March 1987, local law enforcement in Elizabeth, New Jersey became aware of an organized group of teenagers that referred to themselves as The E-Port Posse (“The Posse”). The Defendant was a member of The Posse. The Posse operated a narcotics network that sold cocaine in Elizabeth and would routinely use threats and physical violence to further its enterprise.  

An example of this is occurred in August 1989. The defendant, who was 16 years old at the time, encountered a group of rival drug dealers while delivering drugs for The Posse. The defendant spoke to one of these dealers and told him not to be in the Posse’s territory. The rival drug dealer refused to leave. In response, The defendant struck him in the head with a gun while another Posse member assaulted him. The rival drug dealer fled and the defendant and his associate shot him in the leg. The rival drug dealer survived the incident.

Later that month, the defendant encountered the rival drug dealer’s brother, who was also a drug dealer. The defendant warned the brother not to sell in Posse territory. The defendant confronted the brother in an apartment courtyard where he tried to get the brother to go into an apartment. The brother escaped, but the defendant ordered his associate to shoot the brother to prevent said escape. The associate killed the brother. 

In 1991, a superseding indictment charged the defendant with RICO offenses; Racketeering; Conspiracy to Possess with the Intent to Distribute cocaine; two counts of Possession with the Intent to Distribute cocaine; and two counts of Possession of a Weapon in Relation to a Crime of Violence or Drug Trafficking. Although the defendant was not specifically charged with murder, the attempted murder of the rival drug dealer and the actual murder of his brother were the predicate offenses for the racketeering charge.   

The defendant was tried as an adult even though he was under the age of 18 when these crimes were committed. A jury came back with a split verdict, but found the defendant guilty of RICO, racketeering, and drug and gun possession counts. The jury found that the defendant attempted to murder the rival drug dealer, and murdered his brother. At sentencing, the defendant was sentenced to the mandatory sentencing guidelines of life without parole (hereinafter “LWOP”) on the RICO counts, as well as a concurrent forty-year term of imprisonment on the drug-trafficking counts, and a five-year consecutive term of imprisonment on the gun possession count. The convictions and sentence were affirmed on direct appeal.

The defendant caught a break with the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory Life Without Parole (LWOP) sentences for juvenile homicide offenders violates the Eighth Amendment of the United States Constitution prohibition on cruel and unusual punishment. Consequently, the defendant received a new sentencing hearing.

At the resentencing hearing, the District Court determined that because of the defendant’s upbringing, debilitating characteristics of youth, and post-conviction record, he was not incorrigible, and thus an LWOP sentence was not appropriate. However, the District Court imposed a term of sixty years imprisonment to run concurrently with the drug charges which resulted in a new effective sentence of sixty-five years without parole. Based on this sentencing, the defendant would have been eligible for release when he reached the age of 72 years old. He appealed again. 

Adolescent Development and the Supreme Court

Over the past two decades, adolescent brain development has been an important issue in United States Supreme Court jurisprudence. This began with its decision in Roper v. Simmons which banned the death penalty for juvenile offenders. In its decision, the Roper Court utilized science and social science to reason that juveniles lack maturity, have an underdeveloped sense of responsibility, and are more vulnerable or susceptible to negative influences and outside pressures. In other words, the United States Supreme Court has found that children’s brains are not as developed as those of an adult and thus they should not be held to the same moral standard when addressing criminal conduct and sentencing. 

The United States Supreme Court further expanded on its jurisprudence in the subsequent years. In Graham v. Florida, the Court held that life without parole is unconstitutional for juvenile offenders who commit crimes other than homicide. In Miller v. Alabama, the Court held that that mandatory LWOP even in homicide cases is unconstitutional. Most recently, in Montgomery v. Louisiana, the Court held that Graham and Miller apply retroactively (in other words, if someone was sentenced to LWOP prior to the Court’s rulings in Graham and Miller, then they would be entitled to a new sentencing hearing).

It is important to note that the United States Supreme Court never held that a juvenile cannot be sentenced to LWOP for a homicide offense. However, the bar was set very high to impose such a sentence. As the Grant court stated in its opinion “[o]nly those who are permanently incorrigible may receive such a sentence.” This logic is part of the reason why the defendant in this case challenged his sentence. The trial court essentially sentenced him to life without the possibility of parole.

Third Circuit Rejects Effective Life Without Parole Sentences for Juvenile Offenders as Unconstitutional  

The defendant appealed, arguing that because he would not be eligible for parole until he was 72 years old and that his life expectancy was also 72 years, he had been sentenced to a de facto life without parole sentence. Remember, the sentencing court previously found that he was not incorrigible, and thus, under the logic of Miller, he should receive a parole hearing before he is expected to die. The Third Circuit agreed with the Defendant.

In its decision, the Third Circuit focused on the Miller ruling which held that juvenile life without parole is only for incorrigible juveniles. Further, the Court extrapolated from the previously mentioned Supreme Court decisions that de-facto life without parole cannot be reconciled with Graham and Miller’s holdings that sentencing judges most provide non-incorrigible juvenile offenders “with a meaningful opportunity to obtain release based on their demonstrated maturity and rehabilitation” and that LWOP has “diminished penological justification.” The Third Circuit also looked to other circuit court decisions (i.e. the 7th, 9th and 10th) which held that term-of-years sentences, in those respective cases, violated the holdings of Graham and Miller.

Ultimately, the Third Circuit established new requirements for a sentencing court before it imposes a term-of-years sentence on a non-incorrigible juvenile offender. First, the sentencing judge must conduct an individualized evidentiary hearing to determine the non-incorrigible juvenile homicide offender’s life expectancy before sentencing him to a term-of-years sentence. Next, the sentencing court must “shape a sentence that properly accounts for a meaningful opportunity to be released.” The Third Circuit concluded that this is before the age of retirement. The Court chose retirement because “society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life.” The Court said that juvenile offenders should have an opportunity to “reconcile with society and achieve fulfillment outside prison walls.” Nonetheless, the sentencing court must also consider the § 3553(a) factors (i.e. the seriousness of the offense, public safety, deterrence, etc.) too, and though a non-incorrigible juvenile offender should be presumptively sentenced below the age of retirement, there may be legitimate reasons why a juvenile offender should not be released before the age of retirement.

Facing Criminal Charges or Considering an Appeal? We Can Help. 

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges or deciding whether to appeal a conviction or sentencing , we can help. We have successfully defended thousands of clients in jurisdictions throughout Pennsylvania and New Jersey. We can also provide advice on the merits of pursuing an appeal or post-conviction relief act petition. We offer a free 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding criminal defense attorney today.