For the Defense - Vol. 6, Issue 2 - 36

that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
strong argument in mitigation remains for those
defendants who missed out on the opportunity
to have the court reconsider an overly harsh crack
sentence and receive any benefit from the FSA or
the First Step Act.
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
NOTES:
1
21, 2018).
2
Section 404 brought much needed relief for many
who were previously sentenced to mandatory
minimums or were otherwise not eligible to benefit
from remedial sentencing efforts, including many
who faced life imprisonment for non-violent drug
offenses. The Sentencing Commission reports that
as of June 20, 2020, 3,363 sentence modifications
had been granted nationally, and 93 in the Third
Circuit, with a mean Circuit reduction of 23.7%.32
Given that this data preceded cases such as Jackson,
and other eligibility cases throughout the Circuits,
the final numbers will be much higher.
About the Author
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
Ms. Christy Martin is an
Assistant Federal Public
Defender in the Appeals Unit
at the Federal Community
Defender Office in
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and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
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First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (Dec.
Id. at § 404; Fair Sentencing Act 2010, Pub. L. No. 111-220, § 2,
124 Stat. 2372 (2010).
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Section 404 of the First Step Act reads:
(a) DEFINITION OF COVERED OFFENSE-In this section,
the term
" covered offense " means a violation of a Federal
criminal statute,the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act
of 2010 (Public Law 111-220; 124 Stat.2372), that was
committed before August 3, 2010.
(b) DEFENDANTS PREVIOUSLY SENTENCED-A court
that imposed a sentence for a covered offense may,
on the motion of the defendant, the Director of the
Bureau of Prisons, the attorney for the Government, or
the court, impose a reduced sentence as if sections 2
and 3 of the Fair Sentencing Act of 2010 (Public Law
111-220;124 Stat. 2372) were in effect at the time the
covered offense wascommitted.
(c) LIMITATIONS-No court shall entertain a motion
made under this section to reduce a sentence if the
sentence was previously imposed or previously reduced
in accordance with the amendments made by sections
2 and 3 of the Fair Sentencing Act of 2010 (Public Law
111-220; 124 Stat. 2372), or if a previous motion made
under this section to reduce the sentence was, after the
date of enactment of this Act, denied after a complete
review of the motion on the merits. Nothing in this
section shall be construed to require a court to reduce
any sentence pursuant to this section.
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NOTES:
1
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
3 See Pub. L. No. 111-220, § 2, 124 Stat. 2372 (2010); Dorsey v.
5
United States, 567 U.S. 260, 268-69 (2012).
4
Id.
7
5 First Step Act, § 404(b).
6 Id. at § 404(a).
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
The statutory vehicle to obtain Section 404 relief is found
at 18 U.S.C. § 3582(c)(1)(B), which allows that a sentence of
imprisonment may be modified " to the extent otherwise
expressly permitted by statute. " United States v. Easter, 975 F.3d
318, 323 (3d Cir. 2020).
8
Id.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
36 For The Defense l Vol. 6, Issue 2
About the Author
Click here to view and/or print the
full notes section for this article.
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
Vol. 4, Issue 4 l For The Defense 9
Philadelphia, Pennsylvania,
where she has worked since
1997. For the past two years
she has worked with the
United States Attorney's Office
on the joint review committee
to identify potentially eligible cases in the Eastern
District of Pennsylvania and litigated First Step Act
matters in both the District Court for EDPA and in the
Third Circuit.
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol6_issue2_2021/src/139243_PACDL_Magazine_notes_First_Step_act.pdf

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