For the Defense - Vol. 7, Issue 2 - 35

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
de facto equivalent as alleged here) under
the Pennsylvania Constitution nor as to how
appellate courts will review the discretionary
aspects of such sentences.33
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
A Life Sentence Violates Miller If the Defendant Is
Redeemable
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
ame
ny
ay,
ed
n
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
PANTONE
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If presenting an issue regarding the separate protections
under the Pennsylvania Constitution, a litigant should be
sure to provide a full Edmunds34
analysis, lest the issue be
ruled waived. The Superior Court in DeJesus found the
issue waived because the appellant on appeal did not
adequately develop the issue.
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.
PANTONE
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NOTES:
1
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
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.
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
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Even after Jones and Felder, the law remains the same:
a life without parole sentence imposed upon a transiently
immature youth is cruel and unusual punishment and
hence unconstitutional under the Eighth Amendment.
A judge while sentencing a juvenile homicide offender
cannot find that offender's conduct was the result of
transient immaturity and then sentence the offender to
life without parole. That would not be constitutionally
permitted any more than it would be permitted in
a capital case to find that mitigators outweighed
aggravators but nonetheless sentence the offender to
death. Jones held, " 'That Miller did not impose formal
factfinding requirement does not leave States free to
sentence a child whose crime reflect transient immaturity
to life without parole. To the contrary, Miller established
that this punishment is disproportionate under the Eight
Amendment.' " 35
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.
File your client's motion after the
This places the burden upon counsel
at the sentencing for a juvenile found guilty of first- or
second-degree murder to present testimony that the
juvenile was transiently immature or was corrigible.
Testimony about the juvenile's growth in prison (e.g.,
programs completed) can demonstrate that the juvenile
has grown and demonstrated rehabilitation. Imposition
of a life sentence despite such a record should continue to
be ruled an improper sentence.
Pennsylvania has transformed from the state with the
most juvenile lifers to the state which has resentenced and
released the most former juvenile lifers. This remarkable
success story has been fueled by the development of
favorable resentencing law. While Felder constitutes a step
back from the steady progression of the development of
a favorable body of law, there are still viable legal issues
that should be preserved and pursued.
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* 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
Roper v. Simmons, 543 U.S. 551 (2005).
2 Graham v. Florida, 560 U.S. 48 (2010).
3 Miller v. Alabama, 567 U.S. 460 (2012).
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About the Author
Click here to view and/or print the
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full notes section for this article.
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SUCCESS IN HIGH PROFILE CASES. "
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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
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).
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).
5
About the Author
Click here to view and/or print the
full notes section for this article.
About the Author
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
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).
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).
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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Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Vol. 7, Issue 2 l For The Defense 35
Vol. 4, Issue 4 l For The Defense 9
police corruption. To date over 2,000 convictions have
been voided due to police corruption. Since 2005, Brad
has been advocating for the rights of juveniles sentenced
to life without parole for murder. By holding Miller
to be retroactive, the United States Supreme Court
in Montgomery v. Louisiana voided over 500 juvenile
life without parole sentences in Pennsylvania, 300 in
Philadelphia alone. Brad co-chaired the Defender
Association's JLWOP resentencing project which handled
225 juvenile lifer resentencings.
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
Bradley S. Bridge graduated from
the University of Washington
in 1976 and from Harvard Law
School in 1979. He started
working for the Illinois State
Appellate Defender and then
in 1983 joined the Defender
Association in Philadelphia. Since
1995, Brad has been involved
in reopening convictions due to
1845 Walnut Street
19th Floor
Philadelphia, PA 19103
T: 215.981.0999
F: 215.981.0977
www.mpmpc.com
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