Separation-of-powers questions, lawfulness of mandatory-minimum under § 6111(h), and recurring evolutions with the Walker decision.

Supreme Court Allocatur Grant (9/10/19)

  1. Comm. v. Mason, 202 MAL 2019
  1. Whether a babysitter has a reasonable expectation of privacy in the bedroom of a child she is caring for?
  1. Whether the sounds resulting from a child being forcibly thrown into a crib and being beaten by [Mason] constitute “oral communications” or “evidence derived therefrom” under the Pennsylvania wiretap statute?

 

Comm. v. Bernard, 2019 PA Super 271 (Sept. 4, 2019)

Out of Lackawanna County.  The Superior Court held that, under the facts of this case, Bernard’s possession-with-intent-to-deliver (PWID) conviction and attempted-delivery conviction merged for purposes of sentencing.  The Court reasoned accordingly:

[I]n charging Appellant under 35 P.S. § 780-113(a)(30) for his possession of narcotics with the intent to deliver (as opposed to manufacturing or actually delivering the narcotics), the Commonwealth was required to establish Appellant’s intent to deliver the heroin. Likewise, to establish attempted delivery, the Commonwealth was required to show that Appellant took a substantial step toward the delivery of the heroin in his possession. While the attempt statute requires a substantial step toward the commission of PWID, the Commonwealth needed to prove, essentially, that Appellant took a substantial step towards delivery of a controlled substance in order to convict Appellant of intent to deliver under the PWID statute. We agree with Appellant that possessing the narcotics and arriving at the predetermined location was the substantial step necessary for both PWID and attempted delivery of a controlled substance. Thus, we conclude that all of the statutory elements of attempted delivery of a controlled substance are included in the statutory elements of PWID.

In a footnote, the panel noted that had the Commonwealth produced evidence that Bernard had more drugs on him than he intended to produce to the confidential informant, that fact might be sufficient to separately convict and sentence for attempted delivery for other and future transactions.

Comm. v. Chimenti, 2019 PA Super 272 (Sept. 4, 2019)

Out of Philadelphia.  The facts and procedural history of this case are involved, to say the least.  The gist of this case is that Chimenti was convicted by a jury of first-degree murder and sentenced to life in prison in the 1980s, and shortly after his conviction he entered into negotiations with the Philly DA’s office, which prosecuted him, to have his conviction vacated if he assisted that office in its investigation against his trial lawyer for suborning perjury at trial.  This plea agreement would’ve involved Chimenti getting the benefit of a third-degree murder conviction, with a substantially reduced sentence, despite having already been convicted.  Interestingly, the Commonwealth and Chimenti’s new lawyer were able to convince the then-president judge of the Superior Court to vacate his plea, but the trial judge petitioned the Supreme Court regarding these circumstances.  Essentially, the Supreme Court held that there was not a mechanism for a judge to undo the jury’s verdict in the manner that was brokered. (All of this occurred in the administration of then-DA and later Governor Edward Rendell.)

Long story short, Chimenti has fought over the past 30 years to have his post-verdict plea agreement with the DA enforced and he’s been shot down each time over the years, both in state and federal court.  I highlight the case because with the election of Philly’s newest, reform-minded DA, Larry Krasner, Chimenti caught a break in his case (or so he thought). Here, ultimately, DA Krasner’s administration informed Chimenti and the trial court that it “will no longer oppose the original plea agreement offered and entered into by The Honorable Edward Rendell when he was District Attorney.”  The DA’s office took the position that Chimenti was entitled to post-conviction relief under the PCRA under the governmental-interference exception to the one-year filing deadline.  The trial court and Superior Court, of course, disagreed, and the Superior Court said this:

[W]e hold that, since our Supreme Court specifically rejected the so-called plea agreement, and rendered it void, Appellant’s allegations related to the Commonwealth’s failure to abide by any term of the agreement are moot.

We reject Appellant’s claim of governmental interference that the Commonwealth should have abided by an alleged agreement which was voided by the Supreme Court of Pennsylvania.

Furthermore, notwithstanding the fact the current District Attorney’s Office “agrees” its predecessors breached the agreement, and thus Appellant is entitled to PCRA relief, we reject such an argument as it is beyond the power of the District Attorney. To adopt the position of the current District Attorney on the so-called plea agreement would allow the District Attorney to usurp the power of the judiciary, including that of our Supreme Court.

Therefore, as Appellant’s third PCRA petition is facially untimely, and Appellant has not demonstrated that he is entitled to any of the timeliness exceptions, we affirm the PCRA court’s order dismissing Appellant’s third PCRA petition.

Personal note: What’s interesting to me about all of this is that back in the 1980s, the only reason this case got before the Supreme Court is because the then-trial judge petitioned the Supreme Court for a writ of prohibition to uphold the jury’s verdict notwithstanding that the parties came to an agreement.  The irony of this opinion is that the Superior Court instructs that the DA (the Executive Branch) cannot “usurp the power of the judiciary,” yet it was the judiciary that in the 1980s stepped outside of its role as “an umpire” and assumed the proactive role of advocate to interfere with an agreement the parties made.  Courts are only supposed to involve themselves in “cases and controversies,” and back in the 1980s and in 2018, there was no case or controversy for the judiciary to “officiate” as it pertains to the parties’ agreement.  All DA Krasner’s office was attempting to do was to enforce a contract his predecessor, Governor Rendell, made with the Defendant and which a judge, injudiciously, interfered with.  That begs the question: who usurped who first?  This case warrants attention by our supreme court (in my humble opinion) because of the delicate issues pertaining to the separation of powers and what the judiciary’s role exactly is. 

Comm. v. Stansbury, 2019 PA Super 274 (Sept. 5, 2019)

Out of Philadelphia.  This case involves yet another case where the Superior Court is grappling with the 2018 decision of the Pa. Supreme Court in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), which held that, going forward, separate notices of appeal must be filed for each docket number implicated by a single order which resolves issues across each docket. (In other words, if a judge enters a single order that applies to 10 separate case and dockets, then 10 separate notices of appeal must be filed.)

In this case, the quirk that led this case to be a published decision was that the trial judge directed an order to Stansbury, who represented himself, to “file a written notice of appeal to the Superior Court,” although Stanbury’s case involved two dockets. Stansbury did just that, but the Superior Court questioned whether he effectuated his appeal properly in order to proceed.  Ultimately resolving the issue in his favor, Judge Bowes for the panel wrote this:

We conclude that such misstatements as to the manner that Appellant could effectuate an appeal from the PCRA court’s order amount to a breakdown in court operations such that we may overlook the defective nature of Appellant’s timely notice of appeal rather than quash pursuant to Walker. Therefore, we shall proceed to address the substance of this appeal.

Personal note: There’s been a lot of published opinions dealing with Walker over the past year.  I haven’t written about them because they’re more or less boring procedural cases, but counsel should be mindful that if they intend to appeal from a court’s order that disposes of multiple case dockets, then multiple notices of appeal must be filed.  In this case, I’d be interested if the Superior Court would’ve held the same way if Stansbury was represented by an attorney.  I suspect that the Court would’ve said that counsel should’ve known better.  But who knows.

Comm. v. Dejarnette, 2019 PA Super 275 (Sept. 6, 2019)

Out of Delaware County.  This case involved the legality of a mandatory-minimum that Dejarnette was sentenced under, specifically 18 Pa.C.S. § 6111(h).  That section of the law is reproduced in the opinion, and it’s reproduced here in full:

(h) Subsequent violation penalty.

  1. A second or subsequent violation of this section shall be a felony of the second degree . A person who at the time of sentencing has been convicted of another offense under this section shall be sentenced to a mandatory minimum sentence of imprisonment of five years. A second or subsequent offense shall also result in permanent revocation of any license to sell, import or manufacture a firearm.
  1. Notice of the applicability of this subsection to the defendant and reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided prior to trial. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine by a preponderance of the evidence if this section is applicable.
  1. There shall be no authority for a court to impose on a defendant to which this subsection is applicable a lesser sentence than provided for in paragraph (1), to place the defendant on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
  1. If a sentencing court refuses to apply this subsection where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this subsection.
  1. For the purposes of this subsection, a person shall be deemed to have been convicted of another offense under this section whether or not judgment of sentence has been imposed for that violation.

In upholding the mandatory-minimum sentence as lawful, the Superior Court reasoned accordingly:

In this case, the fact invoking the application of section 6111(h)(1) — i.e., Appellant’s prior conviction for a crime under that section — was not an element that was required to be submitted to the fact-finder and proven beyond a reasonable doubt. See Commonwealth v. Miller , 102 A.3d 988, 995 n.5 (Pa. Super. 2014) (noting that the holding of Alleyne v. United States , 570 U.S. 99, 106 (2013), that “facts that increase mandatory minimum sentences must be submitted to the jury” and found beyond a reasonable doubt does not apply to a prior conviction). Additionally, as discussed above, the Commonwealth could not have alleged the applicability of section 6111(h)(1) in the criminal information, as that provision did not apply until Appellant was convicted of the crimes charged in this case. The Commonwealth did, however, provide reasonable notice to Appellant of its intent to invoke that mandatory-minimum sentence, were he to be convicted of multiple section 6111 offenses. Thus, although the criminal information did not reference the applicability of section 6111(h), we discern no illegality in the court’s imposing Appellant’s mandatory-minimum sentences under that provision.

Personal note: I highlight this case because I can’t help but wonder if the Court interpreted § 6111(h) correctly, or if the particular interpretation I suggest was even advanced by Appellant’s counsel in the brief.  Now, I admittedly haven’t done a lick of legal research regarding this statute, but the context of the statute seems clear to me that the legislature’s intent was to apply the mandatory-minimum in cases where the defendant had convictions under § 6111 that pre-existed the ones the defendant was presently being sentenced on. The heading of the subsection is titled “subsequent violation penalty.” Seemingly, if the legislature’s intent was to apply a mandatory-minimum to a defendant who racked up multiple § 6111 convictions in a single case, one would expect that the heading of subsection (h) would read “multiple violation penalty”; however, plainly, the subsection is references “subsequent” violations, connoting convictions that occur later or afterward, not at the same time.