Philadelphia Criminal Defense Blog

Zak Goldstein 7/29/20 Zak Goldstein 7/29/20

PA Superior Court: Advising Client to Accept Plea Deal Based on Wrong Guidelines Is Ineffective

The Pennsylvania Superior Court has decided the case of Commonwealth v. Brown, holding that an attorney is ineffective if he or she advises his client to plead guilty based on an incorrect calculation of the sentencing guidelines. Because the sentencing guidelines are extremely relevant to both plea negotiations and a judge’s decision at sentencing, a criminal defense attorney has an obligation to correctly determine the applicable sentencing guidelines for a conviction prior to advising the client whether or not to plead guilty.

Commonwealth v. Brown

In 2015, Limerick Township Police officers responded to a call in Royersford, Pennsylvania. The homeowner had invited some friends to watch a boxing match on pay-per-view television. A female acquittance arrived at the complainant’s home and was accompanied by her boyfriend, the defendant. At one point during the evening, the defendant pointed a small black revolver at the victim, demanding money. The defendant then took an Xbox game console and a wristwatch owned by the complainant and then left his home with his girlfriend and another male.

Limerick Police investigated the case and decided to file criminal charges. The Commonwealth charged the defendant with robbery, conspiracy, persons not to possess firearms, firearms not to be carried without a license, possession of weapon, theft by unlawful taking, receiving stolen property, terroristic threats, and recklessly endangering another person.

The defendant hired a private attorney to represent him in criminal court. Believing the evidence against the defendant to be strong, the attorney began to discuss a possible plea deal with the assigned assistant district attorney (“ADA”). During their negotiations, both the defendant’s attorney and the ADA believed that the defendant had a prior record score (“PRS”) of 4. However, as PCRA counsel would later discover, this was not accurate. The defendant’s actual PRS was 2.

After some negotiating, the Commonwealth extended an offer at the high end of these miscalculated guidelines. The defendant refused this offer. The Commonwealth then offered the defendant an offer of 5 ½ to 11 years’ incarceration on the charges of Robbery (F1) and Conspiracy to Commit Robbery (F1). This offer was based on the bottom of the erroneously-calculated standard range guidelines. The defendant accepted this offer. The defendant appeared before the trial court where he was colloquied about the offer. The defendant then admitted that he, in the presence of his two co-conspirators, pointed a firearm at the victim and took the property from his home. The trial court accepted the negotiations and sentenced the defendant to the above sentence.

Unhappy with this long state sentence, the defendant filed a PCRA petition. The defendant argued that he received ineffective assistance of counsel because the attorney mistakenly negotiated the defendant’s plea based upon an erroneous prior record score. The defendant’s PCRA attorney then spoke with the ADA who was handling the defendant’s PCRA petition and asked if she would be willing to sentence the defendant to a guideline sentence based on his correct PRS. The new ADA refused to discuss renegotiation. The PCRA court agreed to hold an evidentiary hearing, and the defendant’s original attorney testified and admitted that he made a mistake in calculating the defendant’s prior record score. The attorney also testified that he believed if he had gone to the ADA handling the defendant’s case with the correct guidelines at the time, he would have been able to get a better deal for his client.

The defendant also testified at his hearing and stated that he would not have accepted an offer that was above his actual guidelines. The PCRA court found both the defendant and his trial attorney credible. Further, the PCRA court found that the defendant had made a sufficient showing of prejudice to satisfy his burden. Consequently, the PCRA court permitted the defendant to withdraw his guilty plea and to proceed to trial. The Commonwealth then filed a timely appeal.

Are the Sentencing Guidelines Mandatory? And How are They Calculated?

For a more detailed analysis on this issue, please see our blog (“PA Sentencing Guidelines. I Got Arrested Am I Going to Jail?) https://goldsteinmehta.com/blog/pa-sentencing-guidelines). As a preliminary matter, the sentencing guidelines are not mandatory. As such, if you are convicted of a crime, it is not required that you be sentenced to your respective guidelines. The judge is required to consider the guidelines when he imposes a sentence, but he or she does not have to follow them. Although judges must impose any applicable mandatory minimums, they may sentence a defendant outside of the guidelines in both PA and federal court.

To calculate one’s sentence, you must first determine what the defendant’s PRS is. This is based on prior convictions. Obviously, some crimes are more serious than others and so if you have a prior conviction for a serious offense it is likely your PRS will be quite high. For example, if you were previously convicted of Aggravated Assault (F1) (and this was your only conviction) then you will have a PRS of a 4. However, if you only have one prior Possession with the Intent to Deliver (“PWID”) conviction, then your PRS will be a 2. A defendant’s PRS can range from a “0” to “REVOC.”

Next, the attorney must determine the Offense Gravity Score (“OGS”) of the offenses the with which the defendant is charged. The OGS of crimes range from 1-14, with 14 being the most serious. Usually, when calculating the sentencing guidelines, the OGS is only considered for the most serious charge. However, a defendant should remember that judges are allowed to impose sentences on the other crimes a defendant is convicted of so long as they are not lesser-included offense. This makes it important to calculate the sentencing guidelines for all of the crimes with which you are charged because a judge could impose consecutive sentences on each offense following a conviction.

Once the attorney has determined what the defendant’s PRS is and the OGS of the crimes he or she is charged with, then the attorney should consult the sentencing matrix. This matrix is a chart that will tell you what the guidelines are for the defendant. Again, these guidelines are not mandatory, but they are very relevant, and often the judge will sentence a defendant within these guidelines after a trial or even following a plea. Although they are not binding, they are very important.

The Pennsylvania Superior Court’s Decision

The Superior Court affirmed the PCRA court’s decision. In its analysis, the Superior Court found that the PCRA did not abuse its discretion in granting PCRA relief when it granted the defendant a right to a new trial. The Superior Court found that the defendant was prejudiced by his trial attorney’s failure to inform him of the proper sentencing guidelines and that there was a “reasonable probability” that he would have gone rejected the plea offer and gone to trial or obtained a better deal had he known his actual guidelines. In support of this position, the Superior Court found it very persuasive that the defendant previously rejected a high-end guideline offer. As such, this fact convinced the Superior Court that if he had known his actual sentencing guidelines, he would have been willing to go to trial. Therefore, the defendant’s sentence will remain vacated, and he will be given a new trial date.

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 7/21/20 Zak Goldstein 7/21/20

PA Supreme Court: Preliminary Hearing Requires More Than Just Hearsay

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has finally decided the case of Commonwealth v. McClelland, reversing the decisions of the Superior Court in Commonwealth v. Ricker and McClelland. The Court held that although some hearsay may be admissible at a preliminary hearing, the Commonwealth may not meet its burden of proving a prima facie case through hearsay alone. Prior to this decision, most Philadelphia judges required at least some real evidence at a preliminary hearing, but many magistrates throughout the rest of the state did not. This case restores the importance of the preliminary hearing, requires the Commonwealth to produce real evidence at the hearing, and protects the rights of the accused to confront the witnesses against them early in the criminal justice process rather than being forced to wait months or even years for trial.

Commonwealth v. McClelland

In this case, the defendant was charged with committing indecent assault, indecent exposure, and corruption of minors against an eight-year-old child. Specifically, the complaint alleged that on August 3, 2015, the child’s parents reported to the Pennsylvania State Police (“PSP”) that the child told them the defendant touched her face with his penis several months earlier. The child then later provided additional details about the incident during an interview with a Children’s Advocacy Center specialist, which led to the criminal charges against the defendant.

At the preliminary hearing, the Commonwealth did not call any actual witnesses with personal knowledge of anything. Instead, the prosecution called a Pennsylvania State Police trooper to testify. The trooper had not witnessed the assault and had only witnessed the interview of the complainant. The trooper summarized the contents of the complainant’s interview for the magistrate, and the magistrate held the case for court, meaning the defendant would have had to stand trial without any real evidence being presented at a preliminary hearing.

After the preliminary hearing, the defendant filed a petition seeking a writ of habeas corpus. The defendant argued that allowing the case to proceed to trial based solely on hearsay evidence violated his rights to confrontation and due process under the Pennsylvania and United States Constitutions. The trial court denied the motion, and the defendant filed an interlocutory appeal to the Superior Court. The Superior Court affirmed the lower court’s decision denying the defendant’s writ of habeas corpus. In Commonwealth v. Ricker, a panel of the Superior Court had held that the right to confrontation does not apply at a preliminary hearing and a defendant could be held for court based solely on hearsay. In this case, the Superior Court held that due process does not require the Commonwealth to produce any non-hearsay testimony at a preliminary hearing.

Undeterred, the defendant then filed a petition for writ of allowance to the Pennsylvania Supreme Court. The defendant argued that allowing the Commonwealth to only present hearsay evidence at a preliminary hearing violated his due process rights. Specifically, the defendant argued that the Pennsylvania Supreme Court’s decision in a much older case called Commonwealth v. Verbonitz governed this issue, that the Superior Court could not overrule a decision of the Supreme Court, and that the Commonwealth could not meet its burden at a preliminary hearing on hearsay evidence alone without violating due process rights.

The Commonwealth’s Response

On appeal, the Commonwealth argued that the Pennsylvania Supreme Court should adopt the holding of Commonwealth v. Ricker which allowed the Commonwealth to meet its burden at the preliminary hearing on hearsay only. The logic of Ricker is that Rule 542(E) of the Pennsylvania Rules of Criminal Procedure, which was amended in 2013, permitted the Commonwealth to meet its burden on hearsay evidence only because it states “[h]earsay evidence shall be sufficient to establish any element of an offense, including, not limited to, those requiring proof of the ownership of, non-permitted use of, damage to, or value of property.”

Additionally, it was the Commonwealth’s position that proceeding by hearsay alone does not violate a defendant’s due process rights because preliminary hearings are not constitutionally required. Finally, although the Pennsylvania Supreme Court addressed this issue in Commonwealth v. Verbonitz, it was the Commonwealth’s position that the decision was a plurality decision in which no majority of judges actually found that hearsay could not be used at a preliminary hearing. As a plurality decision, Verbonitz was arguably not a binding decision, and therefore the Commonwealth argued that the Pennsylvania Supreme Court could depart from it.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court rejected the Commonwealth’s arguments and held that the Commonwealth cannot meet its burden at a preliminary hearing using hearsay evidence alone. As a preliminary matter, the Pennsylvania Supreme Court dismissed the argument that Rule 542(E) permits the Commonwealth to use hearsay to satisfy all the elements of the alleged crimes at a preliminary hearing. The Court specifically held that although Rule 542 is “not the model of clarity,” it does not permit the Commonwealth to establish its entire case at a defendant’s preliminary hearing. Additionally, the Pennsylvania Supreme Court reviewed Verbanowitz and recognized: “[w]e have little difficult in stating with certainty that five justices [a majority]…agreed a prima facie case cannot be established by hearsay alone.”

Further, the Court found that the primary purpose of a preliminary hearing is to protect an individual’s right against unlawful arrest and detention. The preliminary hearing is a “critical hearing” and not a mere formality. As such, due process requires that the Commonwealth present more than just hearsay evidence at the preliminary hearing. Therefore, the case against the defendant was dismissed as the Commonwealth had presented nothing more than hearsay. The Court also disapproved of Ricker, meaning that defendants will likely have substantially increased rights to confront witnesses and challenge the evidence against them at preliminary hearings throughout Pennsylvania.

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Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 7/14/20 Zak Goldstein 7/14/20

PA Superior Court: Acquittal on Underlying Reckless Endangerment Charge Does Not Prevent Conviction for Drug Delivery Resulting in Death

Philadelphia Criminal Defense Attorney Zak Goldstein

The Superior Court has decided the case of Commonwealth v. Burton, holding that a defendant may be convicted of Drug Delivery Resulting in Death (“DRDD”) despite being acquitted on the charge of Recklessly Endangering Another Person (“REAP”) in the same trial. This decision is not surprising given that it has long been the rule that with few exceptions, inconsistent verdicts do not usually warrant a new trial. As many criminal defense attorneys can tell you, inexplicable verdicts are not uncommon in jury trials. Because the judge cannot question the jury regarding its motivation, the reasons for these verdicts are usually unknown. Sometimes they are reached out of leniency, while it is also possible that the jury just may not understand the law. Here, the defendant’s acquittal on the REAP charge did not require an acquittal on the related drug delivery resulting in death charge.

Commonwealth v. Burton

On January 29, 2016, police officers responded to a call for an unresponsive person in Pottstown, Pennsylvania. Unfortunately, the officers were too late. When they arrived, the unresponsive person unfortunately had died. The officers found a syringe on the floor near her body. They also found three blue wax bags from the scene which contained fentanyl. The officers also recovered the decedent’s cell phone and prescription pill bottles.

Between 7:00 p.m. and midnight on January 28, 2016, the decedent exchanged text messages with an individual named “Rachel” in her phone. It was later determined that “Rachel” was the defendant. According to a detective who reviewed the text messages and testified at the defendant’s trial, the conversation between the defendant and the decedent was indicative of arranging a drug transaction. The police also recovered surveillance footage that showed the defendant walking near the decedent’s building while talking on his phone. The video footage also showed the defendant entering and leaving the decedent’s house.

On June 22, 2016, the defendant was arrested and charged with DRDD, REAP, criminal use of a communication facility, and possession with the intent to deliver a controlled substance (“PWID”). The defendant filed a motion to suppress the subscriber information relating to his cell phone which was denied by the trial court. Following a two-day trial, a jury found the defendant guilty of DDRD, criminal use of a criminal facility, and PWID. Notably, the jury acquitted the defendant on the REAP charge. On October 31, 2018, the trial court sentenced the defendant to an aggregate term of 13 to 35 years in a state correctional institution. The defendant then filed a timely appeal. On appeal, the defendant argued that he could not have been convicted of DDRD because he was acquitted on the charge of REAP.

What is Drug Delivery Resulting in Death in PA?

The crime of DDRD is governed by 18 Pa. C.S.A. § 2506. The statute provides:

A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64),1known as The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.

The crime of DRDD is unique because unlike most crimes, it has two separate mental states that the Commonwealth must prove beyond a reasonable doubt to convict the defendant. First, the defendant must have intentionally sold the contraband. Next, the death of the decedent must be the reckless result of the actions of the defendant. Further, the penalty for DRDD can be quite severe. If a defendant is convicted of DDRD, they can face a maximum sentence of forty years. Although DRDD is not usually charged in Philadelphia state court, it is a very common charge in the surrounding counties (i.e. Bucks County) and is particularly serious when charged in federal court. Therefore, if you are charged with DDRD it is imperative that you have a highly skilled attorney representing you.

The Superior Court’s Decision

The Superior Court rejected the defendant’s argument that he could not be convicted of DRDD because he was acquitted on the charge of REAP. Unfortunately, these confusing and inconsistent jury verdicts are fairly common, and appellate courts are extremely reluctant to apply an acquittal on one charge to prevent a conviction on another except under extremely limited circumstances. Here, the Superior Court expressly rejected the argument that REAP is a lesser included offense of DDRD. The Superior Court found that the recklessness mental state is satisfied by the delivery of a drug whose dangers are widely known. Fentanyl is widely known to be extremely dangerous and frequently results in overdoses. Therefore, the defendant’s conviction for DRDD will stand, and he will be forced to serve his sentence.

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Zak Goldstein 6/30/20 Zak Goldstein 6/30/20

PA Supreme Court Finds Use of Medical Marijuana Not a Probation Violation

The Pennsylvania Supreme Court has decided the case of Gas v. 52nd Judicial District, Lebanon County, holding that judges and probation officers in Pennsylvania cannot issue blanket orders prohibiting probationers from using lawfully obtained medical marijuana. This is decision is a huge win for probationers because more and more people are being prescribed medical marijuana to treat their underlying physical and mental health conditions. There is a wide body of research that shows that medical marijuana can be very therapeutic. However, many conservative counties had moved to prohibit probationers from using marijuana even when the treatment has been provided by a doctor. This decision will allow probationers to receive the treatment that they need without fear from retribution by their probation officers or back judges.

Gass v. 52nd Judicial District, Lebanon County

In 2016, the Pennsylvania General Assembly enacted the Medical Marijuana Act. In a declaration of policy, it recognized that scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance their quality of life. The Medical Marijuana Act specifically stated that possession of medical marijuana is legal in Pennsylvania. It also stated that a person cannot be subjected to arrest, prosecution, or penalty in any manner on the basis of medical marijuana.

Three years after the passage of the Medical Marijuana Act, the 52nd Judicial District (Lebanon County) announced its “Medical Marijuana Policy” which prohibits the active use of medical marijuana while a defendant is under supervision by the Lebanon County Probation Services Department. In the instant case, the defendant was a probationer who was being supervised by Lebanon County’s probation department. She claimed that she suffered from a serious and debilitating medical condition. The defendant attempted other therapies, but they were not successful in treating her underlying condition. She then secured lawful authorization to use medical marijuana. However, because of Lebanon County’s Policy, she was not allowed to use it. The defendant subsequently filed a petition in the Commonwealth Court to challenge the validity of Lebanon County’s Policy.

The Commonwealth Court found that it lacked jurisdiction to hear the case, so it transferred jurisdiction to the Pennsylvania Supreme Court. In response to the defendant’s petition, the 52nd Judicial District argued that the General Assembly did not intend for the Marijuana Medical Act to override the court’s ability to supervise probationers and parolees. Further, the 52nd Judicial District argued that its probation services office has experienced disruptions and persistent difficulties when supervising probationers and parolees using medical marijuana. Finally, the 52nd Judicial District argued that it should prevail because its probationers must comply with all state and federal criminal laws and that probationers must refrain from using alcohol or “any legal or illegal mind/mood altering chemical/substance.”

Can you use medical marijuana while on probation in PA?

The Pennsylvania Supreme Court found that Lebanon County’s Policy violated the Medical Marijuana Act and held that Lebanon County probationers are allowed to use medical marijuana so long as it was lawfully obtained. In making its decision, the Pennsylvania Supreme Court reviewed the language of the Act. The Court found that although people with criminal records may be prohibited from delivering medical marijuana to patients, they can still qualify as patients under the Medical Marijuana Act. Further, the Legislature specifically prohibits individuals who are in custody at a correctional institution to be permitted to use medical marijuana.

This is significant because the Medical Marijuana Act omits any reference to individuals on supervision (i.e. probation). Therefore, the Legislature could have specifically prohibited probationers from using medical marijuana, but it chose not to. Additionally, the fact that they specifically addressed individuals in custody shows that the Legislature considered individuals involved in the criminal justice system and chose not to exclude probationers from using medical marijuana. Therefore, the policy violates the act, as did a revised policy which put the burden on the probationer to prove in a court hearing that the marijuana was medically necessary despite a doctor having already so determined. Because its policy violates the Medical Marijuana Act, Lebanon County can no longer enforce its policy and the defendant will be permitted to use medical marijuana while on supervision.

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