Philadelphia Criminal Defense Blog
Federal Sentencing Update: United States Sentencing Commission Proposes Limiting Use of Acquitted Conduct at Sentencing
Criminal Defense Lawyer Zak T. Goldstein, Esquire
The United States Sentencing Commission recently proposed a major change to federal sentencing law, indicating that it may bar the use of acquitted conduct at sentencing where defendants have been acquitted of some charges but convicted of others. This would represent a major change in federal sentencing law. Currently, federal judges may sentence criminal defendants based on conduct for which the jury acquitted them. This is an incredibly unfair practice as it means that a defendant may go to trial on two charges, get acquitted by the jury of the more serious charge when the jury finds that the government could not prove the offense beyond a reasonable doubt, and then still be sentenced as if they had been convicted of the more serious charge.
Acquitted conduct is an offense for which the defendant was not convicted. For example, in many cases, defendant could be charged with guns and drugs at the same time. The penalties for federal drug offenses can be draconian on their own, but the presence or use of a firearm during the commission of the drug offense can result in mandatory minimums and federal sentencing guidelines that are exponentially higher. Federal judges take the guidelines incredibly seriously, so the guideline calculation is extremely important. Currently, there is nothing preventing federal judges from treating a defendant who has been convicted of a drug offense but acquitted of the firearm offense the same at sentencing as if the defendant had been convicted of both offenses. This can lead to a drastically longer sentence even though the jury partially acquitted. Federal judges also may often consider conduct for which the defendant was never charged.
Similar sentencing issues can arise in white collar cases, as well. For example, where a jury acquits a defendant of some counts related to a fraud scheme but convicts on others, the judge can currently sentence based on dollar amounts involved in the counts for which the defendant was acquitted. Because the loss amount involved is often the most important factor in the federal sentencing guideline calculation, this can have a significant impact on the resulting sentence.
Numerous defendants have attempted to challenge this practice as violating the Constitution in the United States Supreme Court, but the Supreme Court has rejected those challenges. The Supreme Court concluded in United States v. Watts that “a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge.” Some of the recently confirmed justices have previously signaled that they may reconsider that ruling, but so far, the Court has not accepted any petitions for certiorari on the issue.
The Sentencing Commission, however, could avoid the need for court action should it approve the proposed change. The proposed change would preclude courts from being able to consider acquitted conduct at sentenicng. The Sentencing Commission was created by Congress for the purpose of establishing the rules by which the guidelines are calculated. Ultimately, the guidelines produce a recommended sentencing range for the judge to consider when imposing sentencing. Until recently, the guideline range was actually mandatory and a judge could not sentence below the guidelines under most circumstances. The guidelines are no longer mandatory, but they are still extremely important.
The downside of the change being approved by the Sentencing Commission rather than the Court is that the change would almost certainly not be retroactive. However, this is an important change that strengthens the presumption of innocence and holds the government to its burden of proving a defendant guilty beyond a reasonable doubt. Criminal defendants should not be sentenced for things that the jury found that they did not do.
This change would only affect federal sentencing proceedings. It would not alter the current practice in the Pennsylvania state courts. The Pennsylvania state courts also use sentencing guidelines, but the guidelines are not quite as important as they are in federal court. The state courts are far more likely to depart from them. Further, it is relatively rare for courts to consider acquitted conduct or conduct for which a defendant was not charged in a state court sentencing proceeding. It is not necessarily prohibited at all times, but state court judges almost always agree that they should not hold alleged offenses for which a defendant was acquitted against them.
Facing criminal charges? We can help.
Federal Criminal Defense Lawyer Zak T. Goldstein, Esquire, at oral argument
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. We have also won criminal appeals and PCRAs in state and federal court. 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 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.””
Criminal Defense Lawyer Demetra Mehta
Click here to read the article.