Philadelphia Criminal Defense Blog

Zak Goldstein 3/6/20 Zak Goldstein 3/6/20

Third Circuit Court of Appeals: Court May Consider Total Weight of Drugs Handled on Different Occasions at Sentencing

The Third Circuit Court of Appeals has decided the case of United States v. Diaz. The Court held that a trial court may consider the cumulative weight of drugs possessed by a defendant for purposes of his sentencing guidelines. This decision is important because it allows a trial court to aggregate all of the drugs that a defendant possessed on different occasions when calculating the guideline sentencing range, which can make the recommended sentence much higher. Even minor differences in the weight of drugs involved can have a dramatic effect on a criminal defendant’s sentencing guidelines.

United States v. Diaz

The defendant was charged along with five co-defendants with conspiracy to distribute and possess with the intent to distribute heroin. One of the co-defendants, Guzman, allegedly orchestrated the conspiracy. He distributed drugs to his co-defendants, including his mother and the defendant. All of the defendant’s co-defendants pleaded guilty. The defendant, however, pleaded not guilty and went to trial.

After being indicted, the defendant represented that he could not afford counsel and he was appointed a Criminal Justice Act (CJA) counsel to represent him. Shortly after his CJA counsel was retained, she accepted a position as an assistant district attorney with an unknown prosecutor’s office. As such, she withdrew from the defendant’s case and he was appointed a new attorney on July 13, 2016. The defendant was not satisfied with his new attorney’s representation. According to the defendant, his new attorney pressured him to plead guilty, did not accept his advice on submitting pre-trial motions, and failed to turn over discovery to him. Consequently, the defendant filed a pro se motion to remove his new attorney from the case. The court held a hearing, and the trial court attempted to resolves their issues. Despite the trial court’s best efforts, it was not able to assuage the defendant’s concerns. The court therefore gave the defendant a new court-appointed attorney.

Unfortunately for the defendant, his relationship with his new attorney was not great, either. On December 5, 2016, the defendant wrote the trial court a letter stating that he had not received requested documents from his new attorney. The trial court then issued an order acknowledging receipt of the defendant’s letter and then forwarded a copy of said order to his attorney. It is unknown if the attorney responded to the defendant.

A few months later, on February 7, 2017, the defendant wrote to the trial court again stating that he still did not have his requested discovery. The trial court then ordered the attorney to file a response to the defendant, however he did not. Shortly thereafter, the defendant filed another motion requesting a new attorney. The trial court did not seek any additional information from the attorney or the defendant. The trial court also did not schedule a hearing to address the defendant’s request or replace the attorney. About a month after the latest request from the defendant seeking new counsel, the attorney wrote to the trial court requesting a continuance. He also stated that he and the defendant had resolved all of their issues and that the defendant wished to continue having the attorney represent him. At the April 7, 2017 pre-trial conference, the defendant did not raise any issues between him and his attorney.

This harmony was short lived. Ten days after the pre-trial conference, the defendant again wrote to the trial court stating that the attorney failed to adequately represent him and to provide him his requested discovery. It is unclear if the trial court made a formal acknowledgment of this letter. Approximately two months later, the defendant wrote to the trial court again complaining of his attorney’s supposed shortcomings. However, the defendant did not specifically request a new attorney. On August 16, 2017 the defendant’s case proceeded to trial with the defendant being represented by his current attorney.

At his trial, multiple witnesses were called to testify against the defendant. These witnesses included his co-defendants (who had already pleaded guilty) and various DEA agents. Additionally, the Government introduced intercepted communications between the defendant and his co-defendants. The testimony showed that although the defendant was not the leader of the organization, he was involved in the drug trafficking. Specifically, the calls showed that he would primarily “bag” up the drugs and that he would also engage in selling on his own behalf. The testimony showed that on multiple occasions the defendant would bag 500 bags of heroin, which amounted to approximately 15 grams. At the conclusion of his trial, the defendant was found guilty of conspiring to distribute and possession with the intent to distribute.

At his sentencing hearing, there was some debate about the weight of drugs that were involved in this case. The defendant argued that only 15 grams of heroin should be attributed to him instead of the 30 grams that the Government alleged. This is significant because U.S.S.G. § 2D1.1(c)(12) governs the guidelines for 20-30 grams of heroin and, it may go without saying, but the guidelines are harsher for 20 grams in comparison to 15 grams. At the conclusion of the sentencing hearing, the defendant was sentenced to 33 months imprisonment and three years of supervised release. After his sentencing, the defendant filed a timely appeal. On appeal, the defendant raised three issues: the trial court’s failure to inquire into the defendant’s motion for appointment of new counsel, the improper admission of one of the DEA agent’s testimony, and finally the trial court’s attribution of more than 20 grams of heroin to the defendant at sentencing. For purposes of this blog, only the defendant’s issue of whether the trial court improperly attributed more than 20 grams of heroin to the defendant at sentencing will be discussed.

Does the Weight/Type of Drugs Matter for Determining a Defendant’s Sentencing Guidelines?

Yes. A defendant’s sentencing guidelines can be dramatically affected by the weight and type of drug that was involved. This is true in Pennsylvania too. In Pennsylvania, a defendant’s guidelines can be substantially different depending on how much heroin he possessed. For example, let’s assume that a defendant is convicted with Possession with Intent to Deliver with 50 grams of heroin and that he has no prior record. His guidelines on the case would be 22-36 months +/- 12. However, if this same defendant was convicted with 49 grams of heroin, his guidelines would be 9-16 months +/- 9 months. As one can see, the weight of the drugs is significant and one gram can make a huge difference in determining one’s sentencing guidelines.

The federal guidelines are no different. In the instant case, the defendant was arguing that the evidence only showed that he possessed 15 grams of heroin. This is significant because per the federal sentencing guidelines, that would make his offense graded as a level 14. However, if the drugs had a weight of 30 grams (as alleged by the Government), then the offense is graded as a 16. Assuming the defendant was a zero (which is unclear from the Third Circuit’s opinion), his guidelines would have been 15-21 months if it was just 15 grams. However, if it was actually 30 grams, then his guidelines would be 21-27 months. Therefore, the weight of drugs can have a significant impact on the guidelines regardless of whether your case is in federal or state court.

The Third Circuit’s Decision

The Third Circuit upheld the defendant’s conviction and sentence. Regarding the weight of the drugs, the Third Circuit found that there was an “ample basis for determining that the defendant was responsible for at least 20 grams of heroin.” The defendant would frequently bag 500 bags of heroin which amounted to 15 grams of heroin. Additionally, the defendant did this more than once. As such, the trial court found that the trial court did not err in attributing at least 20 grams of heroin to the defendant for purposes of sentencing. Therefore, his sentence will stand and he will not get a new trial.

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 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.

Zak Goldstein 2/29/20 Zak Goldstein 2/29/20

Philadelphia Criminal Defense Lawyer Zak Goldstein Wins Motion to Suppress in Gun and Drug Case

Gun Charges Defense Lawyer Zak Goldstein

Criminal defense attorney Zak T. Goldstein, Esquire recently won an important motion to suppress the physical evidence in the case of Commonwealth v. A.W. In A.W., the Philadelphia Police Department narcotics unit had recently received a complaint from a local city councilwoman’s office with information that drugs were being sold outside on a certain block. Officers from the Narcotics Field Unit quickly went to that block and set up a surveillance operation. They claimed that as they were watching the block, the defendant drove up and parked across the street from them. They were then able to see into his car and see that he had taken money out of his pocket and begun counting it. He put the money away, got out of the car, and started walking up the block. The defendant then made a phone call, turned and jogged in the opposite direction, and met up with another black male in the middle of the block. They shook hands and then walked into an unknown house out of view on that street.

After about ten minutes, the officers saw A.W. return to his car, but he was now carrying a plastic shopping bag into which they could not see. He got back in the car and drove away. Believing that a drug transaction had occurred, the surveillance officers radioed for backup officers to stop A.W. and search him and his vehicle. When backup officers pulled A.W. over, they found a gun in his waistband and a significant amount of marijuana and other drugs in the car. The Philadelphia police arrested A.W. and charged him with Possession with the Intent to Deliver, Knowing and Intentional Possession of a Controlled Substance, and numerous Violations of the Uniform Firearms Act including Section 6105 (felon in possession), Section 6106 (carrying a concealed firearm without a permit), and Section 6108 (carrying a firearm on the streets of Philadelphia). Given all of these charges, A.W. was potentially facing decades in prison.

Fortunately, A.W.’s family quickly retained Philadelphia Criminal Defense Attorney Zak Goldstein. Attorney Goldstein reviewed the police reports, defended A.W. at the preliminary hearing, and filed a motion to suppress the evidence, arguing that police had not actually seen any evidence of criminal activity which would justify the stop of A.W.’s vehicle and the search of his person and the car.

The Philadelphia Court of Common Pleas – Criminal Division held an evidentiary hearing on the motion to suppress. During the hearing, the officer testified to the above observations as well as his conclusion that he had witnessed a drug transaction due to the fact that A.W. was in a high crime area, was counting money, did not seem to know exactly where he was going prior to making the phone call, and went into a house and then came back with an opaque shopping bag that could contain drugs.

Attorney Goldstein successfully convinced the Court that all of these observations were equally consistent with totally legal behavior. There was simply nothing illegal about being in that area, counting some money, and then going into a house. The trial court agreed and granted the motion to suppress. Without the ability to introduce the drugs or gun into evidence, the Commonwealth was forced to move to dismiss the charges, and A.W. was quickly freed from custody with no conviction.

Facing criminal charges? We can help.

Criminal Defense Lawyers Demetra Mehta and Zak Goldstein

Zak Goldstein 2/28/20 Zak Goldstein 2/28/20

Philadelphia Criminal Defense Attorney Zak Goldstein Appears on Ask the Expert Radio Show

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire answers questions regarding Pennsylvania criminal procedure and what to do during a police encounter. The show will broadcast on Tuesday, March 3 at 10:30 am on Talk 860 AM.

Zak Goldstein 2/27/20 Zak Goldstein 2/27/20

Can a judge give a worse sentence if you file a motion to reconsider the sentence?

The Pennsylvania Superior Court has decided the case of Commonwealth v. Coleman, holding that a trial court may not sua sponte increase a defendant’s sentence after he or she files a post-sentence motion. This decision is significant because there is an all-too-common misconception among defense attorneys that if they file a post-sentence motion for a new trial or a reduced sentence, there is the possibility that the judge could retaliate by increasing the defendant’s sentence. As such, some attorneys are hesitant to file these motions for that incorrect reason. Hopefully, as a result of Coleman, this misconception will be put to rest.

Commonwealth v. Coleman

On August 7, 2017, the complainant was granted a temporary protection from abuse (“PFA”) order against her boyfriend, the defendant. When the PFA was issued, the defendant and the complainant were living together. Notably, the defendant was not on the lease of their shared residence nor did he ever possess a key.

Despite the PFA being issued, the defendant evaded attempts at being officially served with the PFA. Additionally, the defendant continued to go to their shared residence which resulted in the complainant staying at her grandmother’s home until the defendant could be officially served. On August 21, 2017, the defendant was finally served with the PFA order and an eviction notice. When he was served, he was hiding in the complainant’s daughter’s bedroom closet. The complainant was present when an officer offered to have him remove all of his property from the residence which the defendant declined. Because of the defendant’s actions, the complainant made a point to keep all of her windows and doors locked.

On August 25, 2017 at around 9:30 AM, the complainant was returning home when she noticed the defendant coming out of her house holding a bag. She would later testify that she did not observe any exterior sign of forced entry. However, she did testify that a few months prior to this she observed the defendant attempting to climb through her window. The complainant assumed that this is how the defendant entered her residence. She also would testify that she observed the internet box, which was in the defendant’s name, was missing from the house. At the time of this incident, the PFA was still active and thus the defendant did not have permission to be inside the home. The defendant would later testify that he and the complainant had a conversation where she gave him permission to enter the residence.

On August 30, 2017, the complainant went to the defendant’s new residence at his request. When she arrived, she noticed that the defendant’s new girlfriend was living at this residence. The complainant was not let in, but for unknown reasons the police were subsequently called. As a result, the defendant was subsequently arrested and charged with burglary, criminal trespass, criminal mischief, and contempt for violating the PFA order for his actions on August 25, 2017. The defendant elected to have a bench trial where the above testimony was presented and he was found guilty of burglary, criminal trespass, and contempt.

The trial court then conducted a subsequent sentencing hearing on August 23, 2018. At that hearing, it was determined that the defendant had a prior record score of zero and an offense gravity score of seven, which set the sentencing guidelines to 6 to 14 months’ incarceration, plus or minus 6 months. The trial court stated that it had reviewed the pre-sentence investigation report and the text messages that were provided to the court. The defendant’s attorney informed the trial court that the defendant was employed and no longer involved with the complainant. The defendant’s new girlfriend also testified on the defendant’s behalf.

The Commonwealth requested that the defendant receive a sentence of 6 ½ to 23 months’ incarceration for his actions. After arguments, the trial court elected to sentence the defendant to 12 to 24 months of incarceration which was to be followed by two years of probation. In its rationale, the trial court stated that the defendant “tortured” the complainant based on its review of the text messages.

The defendant then filed a post-sentence motion arguing that the court should not have sentenced him to a sentence greater than what was requested by the Commonwealth. In his motion, the defendant specifically referenced the trial court’s comment that the defendant “tortured” the complainant. A hearing was held on August 30, 2018. At that hearing, the defendant rested on his motion and requested that the trial court impose a county sentence.

The trial court then stated that it had reviewed the defendant’s motion and that even though it mentioned the word “torture” during the defendant’s sentencing, it was not a factor in the defendant’s sentence. Also during this hearing, it became known that the defendant had re-violated the PFA. In response to questioning by the trial court, the defendant stated that “[he] didn’t mean to violate the PFA.” It is worth noting that at this hearing, the Commonwealth did not request a modification of the defendant’s sentence nor did it file its own post-sentence motion. Nonetheless, the trial court re-sentenced the defendant to an increased sentence of 14 to 18 months of incarceration, followed by four years of probation. The defendant then filed another post-sentence motion which was denied and then he subsequently filed a timely appeal.

What is a Post-Sentence Motion?

Post-Sentence motions are an incredibly important, and often forgotten, part of criminal defense practice. A post-sentence motion is a request to do any of the following: modify one’s sentence, request a new trial (for a variety of reasons including: the acquisition of newly discovered evidence, prosecutor’s comments during closing argument, challenging the weight of the evidence, etc.), request a motion for judgment of acquittal, and challenge one’s guilty plea. As one can see, post-sentence motions gives the trial court an opportunity to correct a past wrong by either the jury or the trial court itself.

It is worth noting that these motions are frequently denied. However, that does not take away from their importance. They are incredibly important because if you do not file them on time, you can inadvertently waive certain issues for appeal. For example, if you do not file a post-sentence motion, you are not able to challenge the weight of the evidence or the discretionary aspects of an appeal. Therefore, it is imperative that your attorney files a post-sentence motion after your sentencing if you believe that you received an unduly harsh sentence or if you believe that there were serious issues with the evidence that was presented at your trial.

The Superior Court’s Decision

The Superior Court granted the defendant’s appeal. In its decision, the Superior Court relied on prior case law that stated that in order for a defendant’s sentence to be increased after a post-sentence motion is filed, the Commonwealth must also have filed a post-sentence motion. In other words, a trial court is not permitted to increase a defendant’s sentence unless the Commonwealth has filed a post-sentence motion specifically requesting a harsher sentence. Therefore, a defendant cannot be punished simply because he files a post-sentence motion requesting a more lenient sentence. Because the Commonwealth did not file a post-sentence motion in this case, the defendant’s current sentence will be vacated and he will receive his original sentence.