For the Defense - Vol. 6, Issue 1 - 28

Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).

Commonwealth's failure of diligence, be sure to
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
put that on the record at the time the continuance
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
is requested. Even if the judge does not rule in
G
uidelines
: Lessons
Fromfrom
Pennsylvania
at 15-16,
22-23
separate
analysis
Rule 600,and
therefore
needs to be
prohibition
against
judicial
fact-finding
and
is
severable
your favor, you have at least preserved the issue for
raised
separately).
Discuss
this
waiver
with
your
client
with
the
same
Using
the
strategy
above,
people
both
in
and
(Lynne
Rienner
Publishers,
Inc.).
from the other subsections of the statute.
appeal.
5
5
Pa.R.Crim.P.
Rulehad
600(2)(a);
see also
Commonwealth
Dr.
John
H. Kramer
is Professor
(Emeritus)
Socioloseriousness you would discuss the waiver of any
outside
my
office
have
tremendous
successofwith
v.
Kearse,
890
A.2d
388,
395
(Pa.
Super.
Ct.
2005)
(no
30
gy
and
Criminology
at
The
Pennsylvania
State
Universiviewed
together,
and to
Resto
the Rule
constitutional
right.
*When
All motions
to dismissWolfe
pursuant
Ruledefine
600 must
be 600 motions.
Oftentimes,
justtomaking
it plain
" prejudice "
need
be
shown
obtain
Rule
600
dismissal).
ty
and
served
as
Executive
Director
of
the
Pennsylvania
application
ofwriting.
Alleyne 31toFile
Section
In Wolfe,
your9718.
client's
motionSection
after the
made in
to the Commonwealth
that
you intend
totime
seriously
While Rule 600 has
a more
definitive
period, the sole
Commission
on Sentencing
from
1979-1998.
Request
discovery
and
in writing.
way,§ 3123
9718(a)(1)
appliesearly
to any
conviction
for That
18 Pa.C.S.
focus
of
Rule
600
is
on
the
action
of
the
Commonwealth.
365-day
period
has
elapsed.
If
the
trial
judge
rules
litigate
this
issue
can
get
you
results.
It
is
only
6
Kramer and Ulmer, supra note 5, at 15-16. one
andCommonwealth
requires the court
to to
determine
sentencing the
if the
fails
provide at
requested
Thus,
a constitutional
forwarded
7
against you
andage-related
subsequently
the Commonwealth
weapon
arsenal, butargument
because should
a win be
means
Id.in
atyour
16.a delay
applicability
of the
mandatory
when
prejudices
a
defendant
and
that
delay was
discovery,
any required
continuance
will be onprovision.
8
causesSection
another9718(a)(3)
substantial
periodspecifically
of delay, file
it is av.potent
weapon
that
should
never
McMillan
Pennsylvania,
477
U.S.
79 (1986).
In Resto,
applies
to a discharge,
primarily
caused
by
the courts.
the prosecution. If you have to follow-up with the
9
Id.6 Pa.R.Crim.P.
at 2418. Rule 600(D)(1).
conviction
Pa.C.S.
§ 3121(c),
the be overlooked.
a new for
Rule18600
motion
based which
on thisincludes
additional
Commonwealth
about
discovery
they
have
failed
to
age-related
provision
andtrial
thus
does not an
time andmandatory
litigate it prior
to any
to preserve
hand
over,the
becourt
sure to
to make
memorialize
such requests in
require
a
determination.
NOTES: Click here to view and/or print the
objection to the additional time period.
a writing such as an email.
1
full notes section for this article.
the amendment
the 2 Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
*Equally
At theimportant
Rule 600ishearing,
after theenacted
defenseby
has
U.S.
C
onSt
. Amend. VI; PA. CONST. art. 1, § 9.
If aGeneral
continuance
is required due
to the
Assembly
to cure
the unconstitutional
made
a primaintended
facie showing
that
the defendant 3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
Commonwealth's
failure
of diligence,
beformer
sure toproof at 4 Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
provisions. Act 115
of 2019
repealed the
has not been brought to trial within 365 days,
subsection
andthe
replaced
it with
a requirement
putsentencing
that on the
record at
time the
continuance
constitutional test); Commonwealth v. Preston, 904 A.2d
Mark Bergstrom has been Executive
bears the burden
of proving
that the
anyCommonwealth
mandatory
constitutes
an
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
is requested.
Even if thesentencing
judge doesfactor
not rule
in
Director of the Pennsylvania
that
they
have
nonetheless
acted
with
diligence.
element
behave
proven
beyond
a reasonable
doubt
separate analysis from Rule 600 and therefore needs to be
your
favor, to
you
at least
preserved
the issue
forand
Commission on Sentencing since
This the
means
that
the defense
has made
such raised separately).
changed
timing
ofafter
the notice
requirement
from prior
Katherine
Ernst is an
April
1998. Mr. Bergstrom
is an
appeal.
5
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
to sentencing
to prior
to conviction.
a prima facie
showing,
it is the Commonwealth
Associate
Teaching
Professor
of the
appellate
attorney
with
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
Sociology & Criminology at The
who should
be required
its must
evidence
All motions
to dismiss
pursuantto
toput
Ruleon600
be
Montgomery
" prejudice " need be shown to obtain
Rule 600 dismissal).
The General 31Assembly has an array of options at
Pennsylvania
State County
UniversityPublic
File your
client's
afterthe
the
and
the defense
should
only motion
argue after
made in
writing.
While
Rule
600
has
a
more
definitive
time
period,
the
Defender's
Office.
its disposal to manage and direct sentencing policies,
(1997-present), where sole
heShe
teaches
focus of Rule 600 is on the action of the Commonwealth.
365-day
period
has
elapsed.
If
the
trial
judge
rules
Commonwealth
has
done
so.
Essentially,
a
Rule
600
anhandles
undergraduate
course
in all
some of which were set in motion five decades ago
appeals
from
Thus, a constitutional argument should be forwarded
against
you codification
andshould
subsequently
the
Commonwealth
proceed
in form
identically
Sentencing; an Adjunct Professor
withhearing
the
and revision
of almost
the penal
code.
when a delay prejudices a defendant
and juvenile
delayto
was
homicide,
ofunits,
Law
at that
the Duquesne
University
causes
another
substantial
period
of
to
a suppression
hearing.
thedelay,
judgefile
asks
you
As described
in this paper,
thisIfcontinuum
of options
primarily caused by the courts.
and
she
also
formulates
School
of
Law
(2003-present)
where
he
teaches
an
elective
is anchored
one
end
with
the additional
existing evidence,
advisory 6 Pa.R.Crim.P. Rule 600(D)(1).
a new
Rule
600on
motion
on this
to
argue
prior
to based
the Commonwealth's
course on Sanctions, Sentencing
& Corrections;
Adjunct
legal
strategy and
for an
pre-trial
guidelines
that
promote
uniformity
and
proportionality
time and
litigate
it prior
trialnot
to preserve
an
make
it clear
that to
youany
could
possibly argue
Faculty at the Villanova University School of Law (2006-present)
while retaining judicial discretion, and on the other end
and
Katherine
graduated
Click
here
tounits.
view
and/or
printSentencing
theMagna Cum
where
he trial
assists
with
the
annual
Villanova
objection
to the additional
time
period.
on behalf
of your client
until
you know what the
with 'no notice' mandatories that require imposition of
Laude from
Loyola
Law
School,
New Orleans
Workshop.
full
notes
section
for
this
article.
Commonwealth's
evidence
of diligence
is. But
Mark
H. Bergstrom
penalties
linked
to the
offense.
At minimum
the Rule 600
hearing,
after
theconviction
defense has
Executive in
Director
2007
and
was
on
law
review.
She practiced
other
responses
the continuum
enacting
Pennsylvania Commission on SentencingWilliam J. Niehenke is employed
made
faciealong
showing
that
the defendant
* aIfprima
the Commonwealth
appears
atinclude
the Rule
600
at Kaufman, Coren by
& Ress
in Philadelphia
out
legislation to require the Commission to adopt sentencing
mhb105@psu.edu
the Pennsylvania
Commission
hasenhancement,
nothearing
been brought
to
trial
within
365
days,
and
does
not
present
any
evidence
that
814-863-4368
and enacting 'notice' mandatories that
on Sentencing,
agency
the
of law school, and thereafter
didanwork
inofthe
thecomply
Commonwealth
bearsThe
theinvalidation
burden
of proving
it acted
diligence-for
instance,
did not
General Assembly.
He
works for
in a
withwith
Alleyne.
ofthey
numerous
intersection
of
horseracing
law
and
§1983
Mark Bergstrom has been Executive Director of the Pennsylvania Commission on Sentencing
conjunction ofwith
legislators,
judges,
that
they
have
nonetheless
with
diligence.
bring
in since
the
officer
toacted
testify
toan
the
attempts made
mandatories
2013 has
provided
opportunity
to
1998. Mr.number
Bergstrom isof
an Associate
Teaching Professor
Sociology
& passion
Criminology at The Pe
years before
following
herattorneys,
prosecutors,
defense
consider
the
benefits
anddefense
costs
of defendant-argue
a disruption
of deeply
This
means
that
after
the
has
made such
to find
and
apprehend
the
that State University (1997-present), where
he teaches an
undergraduate
Katherine
Ernst
isofficers,
an course in Sentencing; a
probation/parole
criminal
defense.
Professor for
of Lawindigent
at the Duquesne
University
School of Law (2003-present)
where he teaches a
embedded
sentencing
With all
optionsthe
on burden
the
a prima
facie
showing,
itpractices.
istheir
the burden
Commonwealth
they
have
not met
because
appellate
attorney
with
the
court
administrators,
and
other
course
on
Sanctions,
Sentencing
&
Corrections;
and
an
Adjunct
Faculty
at
the
Villanova Univers
table,
new
sessionthe
theonGeneral
Assembly and
may
who
should
be
required
toofput
itsofevidence
of this
proof
includes
burden
production
of Law (2006-present) where he assists with
the annual
Villanova
Sentencing Workshop.
criminal
justice
stakeholders.
His
Montgomery
County
Public
have an opportunity to decide whether this disruption
work article
focuses on education and
Share
this
and
the
defense
should
only
argue
after
the
arguments
of
counsel
are
not
evidence.
represents the end of the road for certain mandatories or
Defender's
She
outreachOffice.
activities
(e.g., guidelines,
Commonwealth
done so.
Essentially,
a Rule
merely a coursehas
correction
back
to the status
quo.600
handles
appeals
from
alland data
sentencing, and SGS Web) as well as policy support
hearing should proceed in form almost identically
quality.
Vol.units,
4, Issue
4 l Forto
The
Defense
9
juvenile
homicide,
information
on mandatory
minimum
to a More
suppression
hearing.
If the judge
asks yousentences
and she
also
formulates
Pennsylvania
is available
in the Commission's
Jessica
N. Rembold
is employed
to in
argue
prior to the
Commonwealth's
evidence, 2019
26
asstrategy
an Education
and Outreach
legal
for
pre-trial
and
in
the
Commission's
2009
report:
Annual
Report
make it clear that you could not possibly argue
Specialist withMagna
the Pennsylvania
A Study on the Use and Impact of Mandatory Minimum
and trial units. Katherine graduated
Cum
onSentences.
behalf of27your client until you know what the
Commission on Sentencing in 2019.
Laude from Loyola Law School,
New
Orleans with
She works
in conjunction
Commonwealth's evidence of diligence is.
William J. Niehenke
legislators,
prosecutors,
in
2007andand
wasSpecialist
on law review.
Shejudges,
practiced
Education
Outreach
NOTES:
If the
Commonwealth appears at the Rule 600
attorneys and
Pennsylvania
Commission
on Sentencing
at
Kaufman,
Coren
& Ressdefense
in Philadelphia
outcourt staff,
which
includes
probation/parole
wjn5084@psu.edu
hearing and does not present any evidence that
of
law school, and thereafter
didcourt
workadministrators,
in the
1
717-772-4122
officers,
and
American
Institute, Model
Penal Code
: Sentencing
it acted
withLaw
diligence-for
instance,
they
did not.
justicefor
stakeholders.
intersection of horseracingother
lawcriminal
and §1983
a
Proposed Final Draft at 165 (April 10, 2017).
Mr. Niehenke
is employed
byon
theeducation
Pennsylvaniaand
Commission
on Sentencing,
agency of the G
bring
in the officer to testify to the attempts made
2
Her work
focuses
outreach
activitiesan(e.g.,
Joint State Government Commission, A Report by the Chairnumber
years
her
passion
Assembly. Heofworks
in before
conjunction following
with legislators,
judges,
prosecutors, defense atto
guidelines, sentencing, and SGS Web) as well as policy support
to man
find: Jand
apprehend
the C
defendant-argue
that
oint S
tate Government
ommission Activities 1963probation/parole
court administrators,
for
indigent
criminal
defense.and other criminal justice stakeholders. His work fo
and
data officers,
quality.
they
have
not1966).
met their burden because the burden
1965
(Feb.
on education and outreach activities (e.g., guidelines, sentencing, and SGS Web) as well as policy su
Id. includes the burden of production and
and data quality.
of 3proof
4
J
ohn
H.
K
ramer
and
J
effery
T.
U
lmer
,
2009
S
entencing
Share this article
arguments of counsel are not evidence.
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About the Author

PANTONE

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CMYK

90/78/39/30

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RGB

22/58/92

234/194/56

HEXIDECIMAL

#153A5B

#EAC137

For The Defense l Vol. 6, Issue 1

Jessica N. Rembold
Education and Outreach Specialist
jor5456@psu.edu
Vol. 4, Issue
717-772-4490

For The Defense

https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue1_2021/src/PACDL_Magazine_notes_PA_mandatory_minimum_sentences.final.pdf

For the Defense - Vol. 6, Issue 1

Table of Contents for the Digital Edition of For the Defense - Vol. 6, Issue 1