DUI in PA: That Casual Evening Out Can be Costly

By Brian M. Fishman

That pleasant evening with your friends at a favorite local restaurant may be more expensive than you planned: Pennsylvania has severe penalties for driving while under the influence of alcohol or controlled substances (DUI).  Before you put your keys in the ignition, consider the consequences for your wallet, your reputation, your livelihood, and even your freedom.

Pennsylvania’s DUI Laws

In 2003, the Commonwealth’s DUI laws were changed.  The legal limit for DUI is now .08% – down from the previous .10.%.  There is also a new system of graduated penalties, depending on 3 factors:  your blood alcohol level (BAC), the severity of injuries and damages you caused while driving under the influence, and how many times you have previously been convicted of DUI.  These 2003 changes also focus on treatment for alcohol or drug problems in appropriate circumstances.

What is “Driving under the Influence”?

If you are age 21 or older, you are considered by law to be driving “while under the influence” if your BAC is .08 or higher.  However, even if you have a lower BAC, or if you are impaired by drugs (or drugs and alcohol combined), you may also be guilty of DUI, if you are stopped by police for “driving erratically”:  too slow or too fast, making wide turns, weaving in and out of lanes, driving through stop signs, or similar driving behavior.  This “general impairment” can be proven by the police officer’s opinion that you were incapable of safely operating a vehicle on the streets of Pennsylvania.

 

Zero Tolerance Policy for Underage Drivers

Pennsylvania has a “zero tolerance” policy for drivers under age 21 who drive with BACs of even just .02%.  If you are convicted of DUI (.02% and above), there will be jail time ranging from 2 days to 6 months, suspension of your license for an entire year, and a fine between $500 to $5,000.

Pennsylvania’s Implied Consent Law

Just by being licensed to drive here, you have agreed to take one or more chemical tests of breath, blood or urine if the police arrest you for DUI.  If you refuse, your driver’s license will be automatically suspended for one year.  This license suspension is for refusal to take the test, and can be imposed by PennDOT even if you are found not guilty of driving while under the influence.  It will also be in addition to other license suspensions if you are convicted of DUI.

Three-Tiered Penalty System

Generally, the penalties are arranged by (a) level of impairment; and (b) number of prior DUI convictions.  The first tier is for “General Impairment” of .08% to .099% BAC.  A first offense at that impairment level will result in 6 months probation and a $300 fine with no suspension of driving privileges.  But, a third offense at that BAC level is eligible for 10 days to 2 years in prison, a $500 - $5,000 fine, and a full-year suspension of your driver’s license.  The second-tier penalties are for “High Rate” BAC; that is, .10% to .159%.  The third level is for “Highest Rate” BAC – .16% and over.  There, too, the consequences for a DUI conviction are greater if this is not your first arrest.  For example, for a third offense under the “Highest Rate” category, the penalties are:  1 to 5 years in state prison, a minimum fine of $2,500 and an 18-month suspension of your driving privileges.  If you are involved in a crash resulting in death, bodily injury, or even property damage, you are subject to the penalties at the second-tier level, even if your BAC is lower than .10%.  Within this three-tiered penalty system, there are possible court-ordered treatment program alternatives in certain cases.  The goal of the Accelerated Rehabilitative Disposition (ARD) Program is to divert certain first-time DUI offenders out of the criminal justice system.

 

_____________________

Sources: PA Driver’s Manual, http://www.dmv.state.pa.us/pdotforms/PAdriversmanual/
Chapter_4.pdf; PA Dept. Of Transportation, Driver & Vehicle Services,
http:www.dmv.state.pa.us./legislation/dui.shtml

Read More

Miller Revisted: Batts Gives Juvenile Lifers New Life

By Brian M. Fishman

In Pennsylvania, the law of the land prior to June 25, 2012, was that anyone convicted of first- or second-degree murder was subject to a mandatory sentence of life without parole (or death in the case of capital first-degree murder).  This applied to anyone tried and sentenced in adult court, regardless of their age at the time of the offense.  That is, juveniles could be certified to adult criminal court for murder charges and there be treated as adults subject to the same sentences.  However, in Miller v. Alabama, 132 S.Ct. 2455 (2012), a recent Supreme Court case, it was held that a mandatory sentence of life without the chance of parole was unconstitutional for juveniles under the 8th Amendment's prohibition against cruel and unusual punishment.  I discussed this case in an early post, which can be read here.  Miller did not explicitly state that a juvenile could not receive a sentence of life without parole.  Rather, it held that a sentence of life without parole could not be a mandatory that must be imposed but rather the sentencing court must conduct an individualized assessment of the juvenile before them to determine the appropriate sentence.  The Court used scientific evidence demonstrating that juveniles' brains are not fully developed and therefore the juvenile offender is more impulsive, less mature, less able to make thoughtful judgments of risk and more capable of change or rehabilitation.

This created a number of questions for the hundreds of individuals in Pennsylvania serving/facing life without parole sentences for offenses committed before their 18th birthday:

1. What was the remedy on direct appeal for juveniles sentenced to life without parole on or after the date Miller became law where Pennsylvania law still required a life without parole sentence;
2. What should Pennsylvania lawmakers do to rewrite the law in the wake of Miller as the Pennsylvania sentencing scheme was now unconstitutional; and
3. Are those juveniles who were previously convicted and sentenced to life without parole before Miller became effective entitled to a new sentencing hearing? That is, does Miller's holding apply retroactively to those who were juveniles at the time of their offense but were sentenced 5, 10, 20 or more years ago?

Remedy on Direct Appeal for Juveniles Sentenced to Life Without Parole

As to the first question above regarding the remedy for those sentenced after Miller became effective on June 25, 2012, juvenile lifers were anxiously awaiting the Pennsylvania Supreme Court ruling in Commonwealth v. Qu‘eed Batts.  These offenders, who were under the age of 18 at the time of their offense, had now been sentenced to an unconstitutional life without parole sentence.  This case addressed the remedy, on direct appeal, for these juveniles.  The Supreme Court of Pennsylvania held that juveniles sentenced for murder after Miller were now subject to a mandatory maximum sentence of life imprisonment, accompanied by a minimum sentence to be determined by the trial court upon resentencing.  The court, using somewhat vague language, stated that these defendants were subject to “high mandatory minimum sentences and the possibility of life without parole, upon evaluation by the sentencing court of criteria along the lines of those identified in Miller”.

Pennsylvania Legislature Drafts New Law Following Miller

Following the ruling in Batts, Pennsylvania lawmakers drafted legislation to provide a more definitive framework for Pennsylvania judges sentencing an individual convicted for a first- or second-degree murder that occurred prior to their 18th birthday. The new law set mandatory minimums as follows: 

• 35 years for juveniles between the age of 15 and 17 convicted of first-degree murder. 
• 25 years for those juveniles under 15 convicted of first-degree murder.  
• 30 years for juveniles  between the age of 15 and 17 convicted of second-degree murder.
• 20 years for those under 15 convicted of second-degree murder.

There's still a maximum of life imprisonment without parole as Miller did not say that this sentence was unconstitutional.  Many argued that these arbitrary mandatory minimums missed the true spirit of Miller as the Supreme Court stressed that the sentencing judge should conduct an individual assessment of the juvenile offender before them to craft an appropriate sentence for that juvenile taking into consideration age, prior record, family background, education level, any mental health issues, drug or alcohol problems, specific involvement in the crime and many other factors that would address rehabilitation in addition to punishment. 

Will Miller Apply Retroactively?

The third, and most far-reaching question post-Miller was whether its holding would apply retroactively.  That is, are hundreds of individuals sentenced to life without parole for first- or second-degree murder for offenses committed before their 18th birthday entitled to new sentencing hearings regardless of their age now and the amount of time they've been incarcerated.  Or, does Miller only apply to those sentenced on or after June 25, 2012?  This question is currently before the Supreme Court of Pennsylvania in the matter of Commonwealth v. Ian Cunningham, 51 A.3d 178.  This case was argued before the Supreme Court on September 12, 2012.  The Petition for Allowance of Appeal was to address the following issue:  Did the trial court err in imposing a life sentence without parole for the crime of second-degree murder?  However, both parties were directed to address the following two related issues:

1. Whether the holding in Miller v. Alabama, that a juvenile convicted of a homicide offense cannot be sentenced to life imprisonment without parole unless there is consideration of mitigating circumstances by a judge or jury, retroactively applies to an inmate serving such sentence when the inmate has exhausted his direct appeal rights and is proceeding under the Post Conviction Relief Act?
2. If Miller v. Alabama, is determined to have retroactive effect, what is the appropriate remedy under the Pennsylvania Post Conviction Relief Act for a defendant who was sentenced to a mandatory term of life imprisonment without the possibility of parole for a murder committed when the defendant was under the age of eighteen?

Stay tuned for results in Cunningham as a positive defense ruling would flood the courts with PCRA filings requesting new sentencing hearings for hundreds of convicted murders in Pennsylvania.  If you or a loved one was sentenced to life imprisonment without parole for a first- or second-degree murder that was committed prior to the offender's 18th birthday, contact Philadelphia criminal defense attorney Brian M. Fishman for a consultation regarding your rights.

Read More

Technology Has Become Our Own "Big Brother"

By Brian M. Fishman

The judge said, "Son, what is your alibi?...If you were somewhere else, then you won't have to die." Classic lyrics from Johnny Cash's Long Black Veil.   Technology has greatly effected criminal law and the investigation of crimes.  Law enforcement is more and more using video surveillance cameras, cell phone locations, text messages and recorded prison phone conversations to try and solve crimes or gather additional evidence against defendants.  State troopers in Pennsylvania are required by law to have operating cameras on the front dashboard of all their cruisers to video record car stops.  And, what about those red light cameras in Philadelphia which end in you getting a ticket in the mail showing three pictures of your car running a red light.

BIG BROTHER IS IN FACT WATCHING

Philadelphia police recently arrested Jason Smith in the strangling and burning murder of Dr. Melissa Ketunuti, a pediatrician at CHOP.  The police relied heavily on video surveillance cameras around the doctor's house to observe Smith following her into her house, leaving sometime later and circling her home thereafter.  Whatever the outcome, this evidence is obviously pretty damaging to Mr. Smith.

Cameras are everywhere now, catching your every move, innocent or not.  Businesses, schools, homes, the City of Philadelphia, SEPTA buses, trains and trolleys have cameras that end up catching many crimes, including gunpoint robberies, assaults, shootings, drug dealing and DUI.  When there is a violent crime on the streets, diligent police officers now scourer the immediate area for any surveillance cameras that may have caught the crime on tape.  And, it's tough for a defense attorney to cross-exam a movie that shows their client committing the robbery with a firearm in his hand.

YOUR SMARTPHONE TRACKS YOUR EVERY MOVE

Additionally, if you walk around with a smartphone in your pocket, which almost all of us do, your every move is essentially tracked as your phone is constantly "pinging" or hitting the closest cell tower.  Therefore, if you are suspected of a crime and police obtain your cell phone number, they can oftentimes place you at or near a crime scene using the circumstantial evidence that your phone hit off a nearby cell tower around the time of the crime.  This can obviously be strong evidence for the prosecution.

"THIS PRISON CALL IS BEING RECORDED"

If you heard the above words before you began a telephone conversation, would you start talking about a crime you committed?  Would you tell others to threaten or pay the witnesses against you not to come to court?  Of course not.  But, you'd be amazed at how often it happens.  When a criminal defendant is locked up, he can't help but talk to loved ones over the phone about his case.  Even if denying his involvement, these phone calls are almost always damaging to the defense.  And, they often lead to the defendant and others getting arrested for intimidation of a witness or retaliation against a witness and the Commonwealth getting jury instructions on a defendant's consciousness of guilt.  Why have friends or family go pay or threaten a witness not to come to court if you didn't commit the crime so goes the prosecutor's argument?

BUT, CAN ALL THIS TECNOLOGY HELP THE CRIMINAL DEFENDANT? 

While all of this technology seems to favor law enforcement and the District Attorney's Office, it can also be used to a defendant's advantage to assert an affirmative defense, such as establish an alibi or prove self-defense or to destroy the credibility of key prosecution witnesses and even detectives.

1.  Alibi Defense

If you truly did not commit and had nothing to do with the shooting, then you weren't at the scene. So, where were you?  And, is there a camera in the area where you were?  It's possible there was and a defendant's best defense is early investigation.  Businesses often tape over their camera feeds regularly and if you don't act quickly, you could lose key evidence to prove a lock-solid alibi.  David Nenner of my office recently won an acquittal in a homicide that occurred in North Philly by presenting video surveillance that showed his client at a gas station in Center City Philadelphia about five minutes before the murder occurred over twenty minutes away in North Philadelphia.

2.  Credibility of a Witness

In the same case, Mr. Nenner presented another video from a hospital entrance showing the prosecution's lead witness and cousin of the accused entering the hospital one minute before the shooting occurred twenty minutes away!  This evidence not only destroyed the credibility of that witness but showed that the police had beaten the story that the accused was at the scene out of the cousin.  So, with one video, the investigating detective's credibility along with the Commonwealth's star witness was shot.   I recently represented a woman accused of domestic assault.  The complainant didn't report the incident right away and there was a legal battle over the ownership of a business behind the assault allegations.  The alleged victim sent nasty text messages to my client and her family in the days after the alleged assault.  I was able to use those texts to question the victim's motives and her credibility and secure an acquittal for my client.

3.  Self-Defense

When police arrive on the scene of an assault, such as one that occurs outside a Philadelphia bar, their victim often becomes the one with the most serious injuries.  And, the other guy becomes their perpetrator.  But, those same bars now have cameras showing the outside of the bar.  If you're attacked and retaliate by defending yourself and end up getting arrested for asault, that bar's video surveillance system may hold the key to your liberty.  But, you need to get it quick because the bar may have their taping system on a seven day loop.  And once lost or tapped over, that video can never be retrieved.

CONCLUSION

If you or a loved one has been arrested for a crime, the hours and days immediately following your arrest are critical.  It's key that you secure legal counsel who will investigate the case immediately.  A swift investigation is often the best defense.  This requires the client's assistance but also requires an attorney who will ask the right questions and act quickly to get the evidence you need to secure an acquittal.  Don't count on the Philadelphia police to simply tell the truth or do your homework for you. 

If you have been arrested in Philadelphia or the surrounding counties, contact Philadelphia criminal defense attorney +Brian M. Fishman, Attorney at Law, who will immediately begin to investigate your case and leave no stone unturned in an effort to win your case.

Read More

Brian M. Fishman's Online Profiles

By Brian M. Fishman

Brian M. Fishman's Online Profiles: 

Avvo


LinkedIn


Google+


Twitter


BrandYourself 


Facebook

Read More

Actual or Constructive Possession: PA Law Punishes For Both

By Brian M. Fishman

Client was charged with conspiracy and possession of contraband in a Philadelphia prison after his girlfriend brought marijuana into the prison and tried to pass it to him during a visit.  All charges were dismissed against my client following a preliminary hearing yesterday.

Corrections Officers testified at the preliminary hearing that client was searched prior to going to a visit at the prison with his girlfriend.  According to the COs, client and girlfriend were acting very suspicious by looking around, looking at the COs and not looking at or talking to each other during the visit.  The COs testified that they observed the girlfriend reaching into her dress on numerous occasions.  The COs called their superiors who terminated the visit.  Client was taken back to his housing unit and searched again and nothing was recovered.  COs also searched client's girlfriend and recovered 26 grams of marijuana from her and arrested her for possession of marijuana along with possession of contraband on prison grounds.  A conviction on the contraband charge carries with it a two year mandatory minimum state sentence.  This harsh mandatory minimum is obviously there to deter anyone from even considering bringing drugs into a prison.

The court ruled that there was not even enough evidence to send the case past the preliminary hearing and onto trial because the Commonwealth failed to prove that my client was ever in possession of the marijuana.   In order to prove a possessory offense in Pennsylvania, whether it be possession of drugs, a gun or any other illegal item, the prosecutor must prove that the defendant was either in actual or constructive possession of the object.  Actual possession is the obvious form of possession where the defendant is either holding the drugs or it is somewhere else on his person, such as in his pants or coat pocket.  It's what we all think of as being in possession of something.  However, the prosecutor can also prove possession if he can show constructive possession.  Constructive possession is demonstrated when the defendant is not in physical possession of the firearm but she has the conscious dominion and ability to control the firearm. 

For example, if police pull you over and as they approach they observe you making furtive movements and therefore order you out of the car.  Upon exiting the vehicle, the police observe the butt of a gun sticking out from under the driver's seat.  While you were not in actual possession of the gun at the time you came in contact with police, the circumstances prove that you were in constructive possession as it was nearby, there was no one else in the car, the car was registered in your name and your movements demonstrate that you had conscious dominion over the gun and the ability to control it.   Another scenario common to car stops is where police pull someone over and there is a passenger or two in the car and the gun or drugs are not found on anyone but rather found in the glove box, the center console or perhaps under the passenger seat.  In this situation, the police often arrest everyone in the car and the prosecutor can charge and try all of the occupants under a theory that they were in joint constructive possession as they all had conscious dominion and the ability to control the contraband.

Finally, another example is when a drug dealer is selling from a drug stash on the streets.  The law outsmarts the dealer.  The dealer doesn't want to get caught with too much drugs on him because he's concerned about losing the product if arrested or perhaps getting robbed.  So, he puts the drugs in a nearby drain pipe or an empty lot.  When drug users approach, the dealer takes money from the user, walks over to the stash to get a packet or two and walks back to deliver the drugs.  The user walks off.  Police are performing a surveillance on the block and watching all of this.  Police stop the buyer and recover a pink packet of crack cocaine.  The dealer makes two or three similar transactions where police see him going to the same stash and selling to users.  After each sale, the buyer is stopped and has pink packets of crack cocaine.  The police then move in to take down the corner and arrest the dealer and they recover money but there are no drugs on him.  They go to the empty lot and recover a baggie with 15 pink packets of crack cocaine.  The police charge the dealer with possession with intent to deliver the drugs sold to the users and what was in the stash.  But, the dealer didn't have any drugs on him so how can he be charged with possession with intent to deliver?  Because even though he wasn't in actual possession of the drug stash or even the drugs on the buyers, he was in constructive possession of both as the evidence shows that he had conscious dominion and the ability to control both.  Therefore, even though not in actual possession of the drugs, the defendant will be charged with possession of all the drugs and will be charged with the felony offense of possession with intent to deliver.  Further, if the total weight of the packets is over the necessary threshold for a mandatory minimum, 2 grams for crack cocaine, the prosecutor will seek a state sentence of at least the applicable mandatory minimum.

In my inmate contraband case, the prosecutor tried to argue that my client was in constructive possession of the marijuana brought into the prison by his girlfriend based on his nervous actions, the circumstances, an attempt theory and the conspiracy charge.  However, I was able to argue that because the girlfriend was in actual possession of the drugs, nobody else, including my client could be in constructive possession.  And, you can't prove a possessory offense under a theory that he attempted to posses the drugs or a conspiracy theory.  The judge begrudgingly agreed and dismissed the charges.  Finally, this is an example of law enforcement jumping the gun (no pun intended) in their investigation.  The Corrections Officers should have let her pass the drugs and then immediately terminated the visit and searched them both.  They would've recovered the marijuana from my client and had strong proof that it came from his girlfriend because they saw something passed off and my client was searched before the visit and had nothing on him.  They would have had very strong cases against both for possession of contraband and conspiracy.  Further, they could have charged the girlfriend with possession with intent to deliver as she "delivered" the drugs to my client.  You don't need to receive money or other compensation in return for the drugs to prove possession with intent to deliver.  The mere handing off to another is delivery.  So, legally, if a bunch of friends are sitting around and passing a joint to each other smoking marijuana, all are technically guilty of possession with intent to deliver.  A jury may see it differently but the law does not.

If you or a loved one has been arrested for possession of narcotics, a firearm or any other possessory offense, contact +Brian Fishman at 215-564-0644 or fishmanlaw@gmail.com for a free consultation so your rights are protected.

Read More

To See or Not to See: The Unreliability of Eyewitness Testimony

By Brian M. Fishman

Prosecutor: "You just identified the defendant as the person who robbed you at gunpoint. How sure are you?" 
Witness:  "I'm 100% sure."

I hear this often as I sit next to my clients in a Pennsylvania courtroom; their freedom and future at stake.  I wasn't at the scene of the crime so I don't know if my client was the perpetrator.  But, I am 100% sure that the witness isn't 100% sure.  How could they be when they're forced to think back to more than a year ago when a gun was pointed at their chest for 20 seconds at 10:30 p.m. and their life threatened if they didn't give up all their stuff?  It's easy to identify the only defendant sitting at defense table in a well-lit courtroom with none of the above stressors or impediments to observe.

Sciene Demonstrates Concerns over Eyewitness Identifications

Everyday, in courtrooms across America, people are convicted of serious crimes, such as armed robbery, aggravated assault, rape and murder, based on eyewitness testimony.  Solely, on the testimony of one person saying that they saw another commit the crime.  While many witnesses are accurate in their identifications, too often they are wrong and innocent people are convicted of crimes they didn't commit merely because of the identification testimony of one witness.  Eyewitnesses are often not lying when they point across the courtroom and "finger" the defendant.  They strongly believe that they're right, they're just mistaken.  They believe they're 100% sure.  And, these cases are extremely difficult to get reversed on appeal because how does an attorney prove to an appellate court that the witness was mistaken?

It's a problem that occurs way more often then it should considering the fact that there now exists reliable scientific evidence on human memory and the various factors that can affect the reliability of eyewitness identifications.  Despite the science, Pennsylvania courts have failed to educate jurors about the pitfalls of identification testimony and innocent people continue to be convicted based on faulty evidence.  New Jersey has acknowledged the science and published new jury instructions so jurors can be aware of what specific factors to take into consideration when evaluating the accuracy of eyewitness identifications.  Pennsylvania should follow New Jersey's lead.

New Jersey Adopts New Jury Instructions on Identifications

In August 2011, the New Jersey Supreme Court unanimously decided the case of State v. Larry R. Henderson and gained national attention by directing that revised jury instructions be prepared to help jurors evaluate identification evidence.  On September 4, 2012, the new jury instructions became effective.  The new instructions caution that certain factors about an eyewitness’s circumstances at the time of the offense could render their testimony less reliable.  Those factors include the stress the eyewitness was under, the duration of the event, lighting, distance, time lapse between the incident and in or out-of-court identifications, the eyewitness’s focus on a weapon, and cross-racial identification.

The prosecution must always prove beyond a reasonable doubt the elements of the crime charged AND the identification of the perpetrator.  Whenever identification is the only issue in a case, I concede that the crime occurred & hone in on the above issues. But, my argument on the fallacies of identification testimony would hold much more weight if the jury was instructed by the judge about the scientifically-proven problems with this type of evidence.

Cross-Racial Identifications Often Most Inaccurate

Cross-racial identifications are often the most questionable.  But, they are also difficult to deal with as an attorney due to the sensitive nature of race relations.  If you question a white witness' ability to identify a black defendant, are you calling them a racist?  I certainly am not, but you need to be careful when questioning the witness on this issue and possibly offending jurors.  It's a scientific fact that members of the same race are more in tune with identifying features of that race than someone of another race.  However, Pennsylvania courts have refused to instruct juries on this fact. In contrast, the New Jersey instructions now state, "Research has shown that people may have greater difficulty in accurately identifying members of a different race.  You should consider whether the fact that the witness and the defendant are not of the same race may have influenced the accuracy of the witness’s identification."

It's time that Pennsylvania courts catch up with the scienctific evidence and educate jurors on this issue the way New Jersey and many other states have and thereby decrease wrongful convictions based on this suspect evidence.

Read More

It's Miller time for Juvenile Lifers: Court strikes down Mandatory Life Imprisonment Without Parole

By Brian M. Fishman

On June 25th, the US Supreme Court issued a ruling in Miller v. Alabama that bars mandatory "life without parole" sentences for juvenile offenders.  The Court found that such a penalty violated the Eighth Amendment right against "cruel and unusual punishment".  Interestingly, the Court didn't expressly state that a juvenile, under certain circumstances, could not receive a sentence of life without parole.  But, rather, that such a mandatory sentencing scheme was unconstitutional.  Is there a difference?  Yes.

The court found that a trial court must do an individualized assessment of the juvenile before them to determine if a sentence of life without parole is the only option for this juvenile based on their background, age, facts of the homicide, culpability of this juvenile and other factors that the sentencing court finds relevant.  I indicate "facts of the homicide" because the Court has previously held that a sentence of life without parole for a juvenile convicted of a non-homicide crime is unconstitutional.

This opinion raises interesting questions specifically for juvenile "lifers" in Pennsylvania as the mandatorysentence, if convicted of 1st or 2nd degree murder in Pennsylvania is life imprisonment without the possibility of parole.  If you are a juvenile previously convicted of 1st or 2nd degree murder and sentenced to life without parole what is your remedy?  First, all juveniles in this situation must file a PCRA claim by August 23, 2012 (60 days from the date of the Miller opinion) or they risk losing their right for redress from the courts.  The Juvenile Law Center is currently arguing Commonwealth v. Batts before the Pennsylvania Supreme Court involving a juvenile lifer whose sentence is now illegal based on the Miller holding.  Therefore, if you know anyone in this situation, they should reach out to me or the Juvenile Law Center to seek immediate assistance with the filing of a Miller PCRA. 

Second, if Pennsylvania law currently reads, as it does, that all convicted of 1st or 2nd degree murder must receive a mandatory life sentence without parole but Miller states that this mandatory sentence is illegal, what are Pennsylvania courts supposed to do?  There's not a clear answer to this question.  One argument, adopted by the Juvenile Law Center, is that the sentencing court must sentence the juvenile on the lesser included offense of 3rd degree murder so that the sentencing judge can have the discretion to sentence in accordance with Miller.  Another possibility is that the sentencing judge will conduct the individualized assessment of the juvenile and his/her case in accordance with Miller and re-sentence the juvenile to a lesser sentence despite the current law.  A third option is the courts may very likely wait for a legislative fix to the issue.

As far as prosecutors in Philadelphia are concerned, the District Attorney's Office may very well take the position that Miller is not retroactive and therefore no sentence of past juvenile lifers can or should be adjusted.  Rather, the DA may argue, Miller was only meant to effect those juveniles convicted of 1st or 2nd degree murder after the Miller ruling on June 25, 2012.  Either way, the legislature and state courts are going to have to get involved as those juveniles currently serving a life sentence are going to argue that Miller applies to them.  The legislature is going to have to enact new sentencing guidelines in accordance with Miller.  It will be an interesting issue to keep an eye on.

Read More