For the Defense - Vol. 5, Issue 2 - 46

*

*

*

*

*

Discuss this waiver with your client with the same
seriousness
you
would
discuss
the waiver
of any
with Cronic
was
mixed.
Appellate
attorney
Matt
30
constitutional
Steigler, whoright.
had experience with the interpreter
issue, put me in touch with Kara Bailey from the
Request discovery early and in writing. That way,
W.D. Pa. Capital Habeas Unit. Kara represented
ifathe
Commonwealth
fails to whose
provideguilty
requested
man
convicted of murder
plea
discovery,
any
required
continuance
will
be on
and initial post-conviction attorneys paid
scant
the
prosecution.
you total
have to
follow-up
with
the
attention
to hisIfnear
lack
of English
fluency.
Commonwealth
about
discovery
they
have
failed
Kara was adamant about embracing the Cronicto
hand
over, be
sure
to memorialize
such requests
argument
and
convinced
me to advance
it. Asin
aI writing
suchbrief,
as anKara
email.
wrote the
kindly read long drafts
of sections and gave several useful suggestions
If a continuance is required due to the
and edits. The week before the brief was due, I
Commonwealth's failure of diligence, be sure to
almost lived in my office (my wife did not vacate
put
on this
the record
at the time
the continuance
thethat
house
time) emailing
drafts
to my Bucks
isconflict
requested.
Even
if the judge does
not rule
in
panel
post-conviction
partner
(Bucks
your
favor,
you
have
at
least
preserved
the
issue
for
County had tripled the number of attorneys on
appeal.
the panel dedicated to post-conviction work)
Bonnie
Keagy
who, even
pastto
midnight
thebe
All
motions
to dismiss
pursuant
Rule 600on
must
Saturday and Sunday
nights
before
my
brief
was
made in writing.31 File your client's motion after the
due, proofread my hunt and peck typing and
365-day period has elapsed. If the trial judge rules
questioned my citations.
against you and subsequently the Commonwealth
causes
substantial
period
of delay,
Soloanother
practitioners
in Bucks
County
whofile
accept
acourt
new Rule
600
motion
based
on
this
additional
appointments in criminal cases are, in my
time
and litigate
it prior
any trial
to preserve
an
experience,
a small,
buttostrong
fraternity.
With
objection
the
additional
time
period.and sisters at
the help to
and
support
of my
brothers
arms,
I
turned
out
a
product
exceeding
At the Rule 600 hearing, after the defenseanything
has
I could create on my own. After the table of
made a prima facie showing that the defendant
citations was completed on the brief's due date, I
has not been brought to trial within 365 days,
e-filed it.
the Commonwealth bears the burden of proving
that
they have
nonetheless
actedafter
withthe
diligence.
Starting
about
four months
case was
This
means
that
after
the
defense
has
made
such
submitted, I checked the Court's website every
aday
prima
showing,
is the
Commonwealth
forfacie
news.
Finally, it
one
year
to the day after
who
should
be
required
to
put
on its evidence
the case was submitted, and while
the Court was
and
the defense
should only
argue after the
managing
the judiciary's
slowdown/shutdown
Commonwealth
has done an
so. email
Essentially,
a Rule
600
due to the coronavirus,
arrived
at 9:00
a.m. with
the reference
including
the word
hearing
should
proceed inline
form
almost identically
to"Affirmed."
a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
Justice
Donohue's
was
everything
make
it clear
that youopinion
could not
possibly
argue I
asked
for,
validating
Kara
Bailey's
advice
tothe
go for
on behalf of your client until you know what
broke
with
Cronic.
The
right
to
counsel,
and
the
Commonwealth's evidence of diligence is.
right to be present at trial, had no meaning if a
Ifdefendant
the Commonwealth
appears at the
the proceedings
Rule 600
did not understand
hearing
and does
not presentwhose
any evidence
or his lawyer.
A defendant
lawyer that
fails to
enforce
this
right
is
ineffective
per
se;
the
it acted with diligence-for instance, they didinquiry
not
endsin
there,
and no
proof
of prejudice
is
bring
the officer
tofurther
testify to
the attempts
made
required.
to find and apprehend the defendant-argue that
they have not met their burden because the burden
At theincludes
moment,
not know
what theand
future
of proof
theI do
burden
of production
holds
for
MD.
Being
a
protagonist
in
a
major
arguments of counsel are not evidence.
appellate case is no compensation for what he
has endured to date. Most of you who have
46

For The Defense l Vol. 5, Issue 2

Using the strategy above, people both in and
outside
my office
have had
tremendous
success
endured
this article
to this
point know
thatwith
I will
Rule
600 motions.
Oftentimes,
just
making
it plain
likely
face a new
trial in this
matter,
and
I can
onlyCommonwealth
say I will try mythat
best.
Asintend
we often
say in our
to the
you
to seriously
work,
where
is life,
there isIthope.
litigate
this
issue there
can get
you results.
is only one
weapon in your arsenal, but because a win means
NOTES:it is a potent weapon that should never
discharge,
be overlooked.
1

PA

2955C

90/78/39/3

PANTONE

2955C

7406C

Apologies to Robert Traver.
2
Commonwealth v. D., 2020 Pa. LEXIS 1708 (Pa. March
NOTES:
26, 2020). My client's name full name is available to
1
Commonwealth
v. Mills,
162 A.3d
2017).
anyone who cares
to know
it. 323
I am(Pa.
using
his initials
2
U.S.
ConSt
. Amendcreating
. VI; PA. CONST.
art. 1,
§ 9.searchable
here
to
avoid
one
more
web
3
Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
document that associates it with this crime so long as
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
he is not convicted of committing it.
constitutional
test); Commonwealth v. Preston, 904 A.2d
3
sentencing
issues
too,
such as
1, There
10 (Pa.were
Super.viable
Ct. 2006)
(the Barker
test is
an entirely
overlooked
evidence
and
the
constitutionality
separate analysis from Rule 600 and therefore needsof
to be
the five-year
mandatory sentence. I did not think
raised
separately).
5 those were sensible avenues to pursue. How short a
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
I wondered,
could
give
man(no
convicted
v.sentence,
Kearse, 890
A.2d 388, 395
(Pa. you
Super.
Ct. a2005)
"prejudice"
be shown
obtain
Rule
600 dismissal).
of raping aneed
girl over
fourto
years
who
denied
his guilt?
While
hasissues
a moreI had,
definitive
time period,
the sole
GivenRule
the 600
other
I believed
new sentencing
focus
of only
Rule 600
on the action
would
haveis wasted
time of
forthe
noCommonwealth.
real gain.
Thus,
constitutional
should be Pleas
forwarded
4
TheaBucks
County argument
Court of Common
when a delay prejudices a defendant and that delay was
accommodated every request I made for assistance,
primarily caused by the courts.
6 including hiring Ray McConnie and bringing in MD
Pa.R.Crim.P. Rule 600(D)(1).
from state prison to prepare with me when I needed
him.
5 Click here to view and/or print the
United States v. Cronic, 466 U.S. 648 (1984) (some
full notes
section
for
this
article.
omissions
by counsel
are so
likely
to result
in prejudice
that the cost of litigating prejudice is unnecessary).
6
Strickland v. Washington, 466 U.S. 668 (1984).

22/58/92

HEX

CMYK

90/78/39/30

9/22/91/0

RGB

22/58/92

234/194/56

HEXIDECIMAL

#153A5B

#EAC137

About the Author

Ernst is an
About the Katherine
Author

appellate attorney with the
Montgomery County Public
Stuart M.Office.
WilderShe
has been
Defender's
practicing
law
since
1979
handles appeals from all
withjuvenile
particular
focus in
units,
to homicide,
state
and
federal
criminal
and she also formulates
defense, appeals, and
legal strategy for pre-trial
habeas corpus relief.
and trial units. Katherine
MagnainCum
Hisgraduated
office is located
Laude from Loyola Law Doylestown
School, New(Bucks
Orleans
County).
in 2007 and was on law As
review.
She
practiced
one of his colleagues
at
Kaufman,
Coren
& Ress
Philadelphia
stated,
"Stuart
Wilder
hasin
been
the most out
dedicated
Bucks
County
post
trial
advocate,
lecturer
and
of law school, and thereafter did work in the
mentor
to
others
laboring
in
this
complicated
intersection of horseracing law and §1983 for aand
thankless
criminal
defense."
number
ofarea
yearsofbefore
following
her passion
for indigent criminal defense.

Share this article
Vol. 4, Issue 4

l

For The Defense

9

#153A5B
For the Defense - Vol. 5, Issue 2

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 2
