A blog of the Philadelphia Bar Association’s Criminal Justice Section

SenateSession schedule

The House and Senate meet on October 6, 7, 8, 14, 15 and November 12.

Bills moving

House

Sexual Offender Probation: House Bill 2465 (Marsico-R-Dauphin) further providing for mandatory period of probation for certain sexual offenders- sponsor summary– was removed from the Table, referred into and out of House Appropriations Committee and is now on the House Calendar for action.  A summary andHouse Fiscal Note are available.

Victims Rights: House Bill 2464 (Hackett-R-Delaware) further providing for victims rights was removed from the Table, referred into and out of the House Appropriations Committee and is now on the House Calendar for action.  A summary and House Fiscal Note are available.

Senior Jury Duty Exemption: House Bill 2102 (Tobash-R-Berks) exempting persons 75 years of age and older from jury duty was amended on the House Floor, referred into and out of the House Appropriations Committee and is now on the House Calendar for action.  A summary and House Fiscal Note are available.

Sale Of Firearms: House Bill 1243 (Stephens-R- Montgomery) relating to the sale or transfer of firearms background checks related to mental illness was amended several times on the House Floor, referred into and out of the House Appropriations Committee and is now on the House Calendar for action.  A summary and House Fiscal Note are available.

Providing For Restitution: House Bill 2383 (Toepel-R-Montgomery) further providing for judgments and other liens related to sentencing was referred into  and out of the House Appropriations Committee and is now on the House Calendar for action.  A summary and House Fiscal Note are available.

Sharing Child Protection Information: Senate Bill 27 (Mensch-R-Montgomery) further providing for the exchange of information in children in protective services was amended, reported from the House Children and Youth Committee and Tabled.

Senate

Medical Marijuana: Senate Bill 1182 (Folmer-R-Lebanon) providing for the medical use of cannabis was amended and reported from the Senate Appropriations Committee and passed by the Senate.  A summary and Senate Fiscal Note are available.  The bill now goes to the House for consideration.

Sexual Predators: House Bill 1874 (Farry-R-Bucks) further providing for counseling of sexually violent predators- summary House Fiscal Note– was reported from the Senate Judiciary Committee and is now on the Senate Calendar for action.

Providing For Autopsies: House Bill 207 (Godshall-R- Montgomery) providing for autopsies- summaryHouse Fiscal Note– was reported from the Senate Judiciary Committee and is now on the Senate Calendar for action.

Community Service Sentence: Senate Bill 1367 (Gordner-R-Columbia) providing for sentence of community service- sponsor summary– was reported from the Senate Judiciary Committee and is now on the Senate Calendar for action.

Bail Bondsman: Senate Bill 1441 (Alloway-R-Franklin) providing for the regulation of the bail bondsman industry was amended and reported out of the Senate Banking and Insurance Committee and is on the Senate Calendar for action.

Public hearing

October 6– Senate Public Health and Welfare Committee meets to consider House Bill 435 (Moul-R-Adams) expanding the requirements for background checks for employees working with children- a summary and House Fiscal Note are available.  Room 461.  Noon.

(Source:  Crisci Associates PA Capitol Digest)

Federal Communications Commission takes first steps to limit cost of prisoner telephone calls

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seal_colorBy Burt Rose

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The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania, Appellant v. Claude DESCARDES, Appellee, 2014 WL 4696243, 2014 PA Super 210, 2836 EDA 2010 (Sept. 23, 2014). This was an appeal from the Court of Common Pleas of Montgomery County, Judge Smyth, Criminal Division, CP–46–CR–0000617–2006. The Judges were BENDER, FORD ELLIOTT, BOWES, PANELLA, DONOHUE, SHOGAN, LAZARUS, OLSON and WECHT.

After pleading guilty to insurance fraud in 2006 and serving a 1 year probationary sentence, Claude Descardes, a resident alien, left the country. Immigration officials denied him re-entry due to his felony conviction. Subsequently, Padilla v. Kentucky,559 U.S. 356 (2010), held that a criminal defense attorney has an affirmative duty to inform a defendant that the offense for which he pleads guilty will result in his removal from the country. Descardes filed a petition for a writ of coram nobisrelying on Padilla alleging that his guilty plea counsel was ineffective for failing to advise him of the adverse immigration consequences of his guilty plea. The trial court treated thecoram nobis petition as a petition pursuant to the Post Conviction Relief Act and granted him relief.

However, under the PCRA, a petitioner must be “currently serving a sentence of imprisonment, probation or parole for the crime” sur 42 PA. CONS.STAT.ANN. § 9543(a)(1)(i)-(iii). Descardes did not meet these eligibility requirements because he had completed serving his sentence. His assertion that his deportation constituted a sentence for purposes of the PCRA eligibility provisions was rejected by the Court en banc in this Opinion written by Judge Panella.

Descardes’s claim was one of ineffective assistance of plea counsel, a claim that is explicitly within the purview of the PCRA; however, it was predicated upon the Supreme Court’s holding in Padilla that the Sixth Amendment requires defense counsel to advise the defendant about the risk of deportation arising from a guilty plea. This particular claim of ineffective assistance of counsel did not exist until 2010 when the Supreme Court decided Padilla, which was years after Descardes completed his sentence. The time for pursuing a claim of ineffective assistance of counsel in a timely filed PCRA petition had long since expired. Under these circumstances, the Court found that this was one of the rare instances where the PCRA failed to provide a remedy for the claim.

Descardes properly sought relief, not through the PCRA, but by filing a petition for writ of coram nobis, which “provides a way to collaterally attack a criminal conviction for a person … who is no longer ‘in custody’ and therefore cannot seek habeas relief….” In Chaidez v. United States, 133 S.Ct. 1103 (2013), the petitioner had sought to avoid deportation by filing a writ ofcoram nobis to overturn her conviction by arguing that her attorney provided ineffective assistance by failing to advise her of the immigration consequences of pleading guilty.

Because Descardes’s specific ineffective assistance of counsel claim was not recognized until well after the time he had to file a timely PCRA petition, coram nobis review was available to him. Descardes was no longer in custody and thus the PCRA provided no relief, yet he continued to suffer the serious consequences of his deportation because of this state conviction. The trial court should have addressed his petition for a writ of coram nobis, not under the PCRA.

Nevertheless, Descardes was not entitled to relief even when his claim is addressed as a petition for writ of coram nobis. In Chaidez, the United States Supreme Court held that Padilla announced a new rule of constitutional law that is inapplicable on collateral review to a petitioner seeking a writ of coram nobis whose conviction had become final before Padilla.  Therefore, as Padilla does not apply retroactively, it could not serve as the basis for the collateral attack of Descardes’s conviction, which was final when Padilla was decided.

Attorney William J. Honig represented the Appellee.

seal_color

By Burt Rose

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The Superior Court of Pennsylvania has issued an Opinion in the matter of COMMONWEALTH of Pennsylvania, Appellant v. Tarique WILSON, Appellee, No. 1321 EDA 2013, 2014 WL 4637244, 2014 PA Super 202 (Sept. 18, 2014). This was an appeal from an Order of the Court of Common Pleas of Philadelphia County, Criminal Division, MC–51–CR–0008085–2012. The Judges on the panel were PANELLA, LAZARUS and JENKINS. Judge Panella wrote the Opinion.

The Panel ruled that the trial court had erred in affirming a municipal court judge’s suppression of evidence which erred by holding that  75 PaCS 3802(d), pertaining to driving under the influence of a controlled substance, requires testing for controlled substances to occur within two hours of driving.  Judge Panella held that the legislature did not envision a time limit on testing for the presence of controlled substances after driving.

HouseR

Session schedule

The House and Senate meet on September 22, 23, 24, October 6, 7, 8, 14, 15 and November 12.

Bills moving

House

Providing For Bail: House Bill 2385 (Delozier-R-Cumberland) further providing for bail was removed from the Table, referred into and out of the House Appropriations Committee and was passed by the House. A summary and House Fiscal Note are available. The bill now goes to the Senate for consideration.

Legal Notices: Senate Bill 601 (Scarnati-R-Jefferson) further providing for the electronic publication of legal notices was passed by the House and now goes to the Governor for his action.  A summary and House Fiscal Note are available.

Collection Of Restitution: House Bill 2384 (D.Costa-D-Allegheny) further providing for collection of restitution, fees and costs was removed from the Table, referred into and out of the House Appropriations Committee and is now on the House Calendar for action.  A summary and House Fiscal Note are available.

Elder Abuse Task Forces: House Resolution 929 (Knowles-R-Berks) directing the Legislative Budget and Finance Committee to conduct a study of elder abuse task forces to assess the feasibility of expanding the network statewide was amended and reported from the House Aging and Older Adult Services Committee and is now on the House Calendar for action.

Jury Duty: House Bill 2102 (Tobash-R-Berks) exempting persons 75 years of age and older from jury duty was removed from the Table and is now on the House Calendar for action.

Sexual Offender Probation: House Bill 2465 (Marsico-R-Dauphin) further providing for mandatory period of probation for certain sexual offenders- sponsor summary– was reported from the House Judiciary Committee and Tabled.

Victims Rights: House Bill 2464 (Hackett-R-Delaware) further providing for victims rights was amended and reported from the House Judiciary Committee and Tabled.

Senate

Eliminating School Property Tax: Senate Bill 76 (Argall-R-Schuylkill) eliminating school district property taxes was amended and reported out of the Senate Finance Committee and is now on the Senate Calendar for action.  DANGER:  THIS BILL WOULD IMPOSE A SALES TAX ON LEGAL SERVICES

Public hearings

September 23–  Senate Judiciary Committee meets to consider Senate Bill 1367 (Gordner-R-Columbia) providing for sentence of community service- sponsor summary, House Bill 207 (Godshall-R-Montgomery) providing for autopsies- summary House Fiscal Note, House Bill 1874 (Farry-R-Bucks) further providing for counseling of sexually violent predators- summary House Fiscal Note.   Room 8E-B East Wing.  11:30 a.m.

(Source:  Crisci Associates PA Capitol Digest)

Supreme Court amends Pa. Rule of Appellate Procedure 1941 on sufficiency of evidence in death cases

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Supreme Court amends Pa. Rule of Evidence 611 as to hostile witnesses

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Supreme Court amends rules for judicial candidates

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Supreme Court amends rules of Magisterial District Judges

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Special photo feature  

Secrets of the Pennsylvania Capitol by Jan Baker and Christine Murphy

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Senate Judiciary Committee approves four nominees to Eastern District

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David Carroll, executive director of the Sixth Amendment Center, is seeking input from the criminal law practitioners for a study of indigent defense in Philadelphia.

Earlier this year, the City Councilperson Dennis O’Brien introduced a Charter amendment requiring City Council approval over contracts for indigent defense.  The amendment was adopted in the spring primary election.

The City Council requested the United States Department of Justice to provide technical assistance on indigent defense. The Department of Justice retained the Sixth Amendment Center to provide services to Philadelphia.

DJC headshot

David Carroll

“I was asked to help put together a blue print on how Philadelphia can best provide conflict defender services,” Carroll said. “I am interviewing stakeholders. I will be talking to defense providers, judges, prosecutors, policy makers, the City Administration and the City Council.”

Carroll would appreciate hearing from criminal law practitioners. His email address is david.carroll@sixthamendment.org.

“Time is of the essence,” Carroll said. “Both the City Council and the City Administration want to act quickly. The Department of Justice anticipates the work to be complete by the end of October.”

“There is no single shelf-model for Philadelphia, but whatever is developed should meet national standards and the American Bar Association’s Ten Principles of a Public Defense Delivery Systems (http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf)” Carroll said.

Carroll said that options used in other jurisdictions include:

(1) an assigned counsel model (Massachusetts)

(2) a staffed public defender (Colorado)

(3) a second defender office (Los Angeles)

“Pennsylvania is the only state which has never funded indigent defense services. The lack of funding puts a great burden on counties to provide constitutionally-adequate representation,” Carroll said.

The Sixth Amendment Center, with headquarters in Boston, Massachusetts, was founded in 2012.  Carroll described it as “a nonprofit organization providing technical assistance and evaluation services to criminal justice stakeholders and policy makers on the delivery of indigent defense services.”

Carroll, who is not a lawyer, has been doing this type of work for more than 18 years. He holds a master’s degree in ethics and social philosophy from Boston College.

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By Andrea Peterson, Washington Post, September 12

If you want digital access to U.S. court documents, PACER will likely be your first stop. It’s a sort of digital warehouse for public court records maintained by the Administrative Office of the U.S. Courts, or the AO.

The service charges 10 cents per page of search results within its databases and 10 cents per actual page of public court records. Public domain and freedom of information advocates have long criticized the charges, along with the system’s difficult-to-navigate interface, and have tried to create free alternative archives.

But on Aug. 10, PACER unceremoniously announced that archives for five courts — four of them federal courts of appeals — would no longer be available through the system.a

Click for entire report from the Washington Post

third  circuitBy Burt Rose

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UNITED STATES of America v. Jermel LEWIS, Appellant, No. 10–2931, 2014 WL 4413535 (Sept. 9, 2014) was a decision of the United States Court of Appeals for the Third Circuit in an appeal from the United States District Court for the Eastern District of Pennsylvania (E.D.Pa.2–08–cr–00161–003), before District Judge J. Curtis Joyner. The lawyers were Paul J. Hetznecker, Esq. and AUSA Robert A. Zauzmer, Esq. The judges on the panel were RENDELL, FISHER andCHAGARES. Judge Fisher wrote the Opinion. Judge Rendell wrote a dissenting opinion.

Lewis was sentenced for the crime of brandishing a firearm in relation to a crime of violence, when he had been not been indicted for, and the jury had not convicted him of, that conduct. The District Court sentenced Lewis in accordance with a mandatory minimum of seven years. The issue on appeal was the applicable standard of review for situations where a district court has imposed a mandatory minimum sentence based upon facts that were never charged in the indictment or found by a jury beyond a reasonable doubt in violation of Alleyne v. United States, 133 S.Ct. 2151 (2013).

Lewis challenged his sentence and contended that the failure of the indictment to charge an Alleyne element, combined withAlleyne error in jury instructions and at sentencing, was structural error. However, the Panel held that the Alleyne error was not structural but rather was subject to harmless or plain error analysis. The evidence supported the District Court’s finding that he certainly did brandish a firearm during a robbery: “It is safe to conclude, therefore, that in light of the overwhelming and uncontroverted evidence in support of the brandishing element that, had the jury been properly instructed on that element, it would have found that element beyond a reasonable doubt.” Because the District Court’s error in Lewis’s case was therefore harmless, the Court affirmed.

According to Judge Rendell, had this error not occurred, Lewis would have been sentenced to a mandatory minimum of only five years. Therefore, this constituted reversible error that was not harmless because it violated Lewis’s Sixth Amendment rights, as announced in Alleyne, and the resulting sentence was more harsh than it ought to have been. Here is her concluding statement:

Over a decade ago in Vazquez, I noted that the logic in that decision would mean that the “government can charge and convict a defendant of manslaughter, but sentence him for murder, and, as long as the government produced evidence at trial that would support that sentence, we would not notice or correct the error under [plain error review] and require resentencing in accordance with the jury’s verdict.” 271 F.3d at 130 (Rendell, J. dissenting). Today the majority goes beyond even that dire prediction as it upholds a sentence for a crime different from that of conviction, under de novo review. Under the majority’s reasoning, and contrary toAlleyne, a district court may now sentence a defendant pursuant to an improper mandatory minimum, in violation of the Sixth Amendment, and we would be obligated to uphold the sentence if we, an appellate court, find the evidence at trial to have been sufficient. In short, today’s decision strikes at the very heart of the jury trial and grand jury protections afforded by the Constitution.

But perhaps I am wrong. Perhaps we live in a brave new world where judges may determine what crimes a defendant has committed without regard to his indictment or jury verdict, and sentence him accordingly. Or maybe Alleynedoes not really mean what it says, when it proclaims brandishing and carrying offenses to be separate and distinct crimes, and that a defendant is entitled to be sentenced consistent with the jury’s findings. But I take the Supreme Court at its word. Until clearly instructed otherwise, I maintain that different crimes are just that, and district court judges cannot sentence a defendant to an uncharged crime simply because the evidence fits, nor can an appellate panel affirm such a sentence because they find that the evidence fits. I adhere to the principle that both appellate and trial judges are required by the Constitution to respect, and sentence according to, a valid jury verdict, and on this basis I respectfully dissent.

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