For the Defense - Vol. 9, Issue 3 - 35

In Pennsylvania, the rules of criminal procedure allow for the entry
of a plea of nolo contendere.13
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
the admissibility of nolo contendere pleas honors a defendant's lack
of admission.14
The limited uses of a no contest plea are
Pennsylvania's jurisprudence about
Pa. R. E. 410 prohibits the use of a nolo contendere
plea in any subsequent civil or criminal case against the defendant
who entered the plea.15
* 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.
* 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.
and Pennsylvania Constitution20
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.
challenges to credibility or as a prior conviction;16 however, it cannot
be used to elaborate on the surrounding circumstances.17
Thus, a nolo contendere plea is not a mere formality in the
disposition of a case. It is a meaningful choice by a defendant to not
contest the charge and be sentenced; but it does not require the
defendant to admit to anything.18
Its probative weight to establish
the underlying veracity of the offense is null; the only fact that is
established is the conviction.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
The no contest plea traditionally has been used as just another
method of resolving a case or avoiding the civil fallout of a case.
However, because a no contest plea admits no specific factual
guilt, any punishment for failing to later admit to that conduct
raises potential due process concerns. The due process clause of
the United States19
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
procedures, laws, or practice offends some principle of justice
rooted in the traditions of the American experience, then it violates
the due process clause.22
File your client's motion after the
When a defendant relies upon assurances from government
actors in a place of authority, their due process rights are violated.23
Further, detrimental reliance on governmental representations,
even if not formally binding through proper procedural actions,
implicate the defendant's due process rights.24
While defendants can enforce government representations as
* 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.
* 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.
embody the
If a state's
a sword or use misunderstandings as a shield, there is room for
the use of a no contest plea beyond civil protection. Often, rights
are removed by virtue of a conviction of an offense.25
Or, in more
defendant fails to " take accountability " for these offenses, they
may be discharged and subject to revocation penalties.27
While a determination or admission of guilt would foreclose any
continual contesting, the same is not true of a no contest plea. A
nolo contendere plea does not admit to any conduct. In requiring
a defendant to then admit, as a condition of continued liberty, to
the underlying criminal conduct, the Court imposes an impossible
choice on the defendant. Admit, and thus go against the nolo
contendere plea, or deny consistent with that plea and be punished.
When the Court itself accepted the original nolo contendere plea,
it understood the legal significance.28
To then punish a defendant
when the Court accepted that plea violates the due process right to
fundamentally fair proceedings.
* 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.
The nolo contendere plea may have further constitutional
protections to shield a defendant from collateral consequences
which require a fact to be established. As of June 2024, the
Superior Court of Pennsylvania is considering whether a revocation
sentence may be imposed for failing to take accountability during
sex offender counseling when the initial plea was no contest.29
Additionally, with the Supreme Court's precedent involving
firearm disarmament when a specific finding of dangerousness
has occurred, the time for analyzing and expanding no contest
pleas is ripe.30
If a collateral matter, or subsequent prosecution, is
* 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.
If a
predicated on specific findings, rather than mere convictions, then
pleading no contest would serve as a shield to a client.
* 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.
extreme cases, liberty is conditional upon taking responsibility for an
offense for which a defendant pled no contest. Often, sex offender
clients, as a condition of probation or parole, must participate
in counselling, programming, and therapeutic polygraphs.26
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.
principle of fundamental fairness, " entitling every individual to be
free from arbitrary or oppressive government conduct. " 21
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.
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The opinions in this article belong solely to the author and are not the
PANTONE
official view of the Dauphin County Public Defender's Office.
2
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* 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.
Nathan Lenvin and Ernest Meyers, Nolo Contendere: Its Nature and its
Implications, 51 YAle L.J. 1255 (1942) (recognizing the earliest use of between
NOTES:
1
1399 and 1413).
3
In re. Jennings, 192 A.3d 372, 374 fn. 4 (C.J.D. Pa. 2018) ( " 'Nolo contendere'
is a Latin phrase meaning 'I will not contest it.')(citing BlACk'S lAw diCtionArY
1198 (4th Rev. Ed. 1968))); Tucker v. U.S., 196 F.260, fn. 2. (7th Cir. 1912).
4
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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a conspiracy case).
6
NOTES:
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4
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4 Commonwealth v. Holstine, 19 A. 273 (Pa. 1890) (holding that minor
imposition of a jail sentence for a plea of nolo contendere was proper).
5
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U.S. v. Hartwell, 3 Cliff. 221 (D. Mass. 1869) (holding that a nolo plea could
serve as prima facie guilt of a principal in considering the accessory's guilt in
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
Hudson v. U.S., 272 U.S. 451 (1926).
7 5 Lenvin and Meyers, supra at 1268.
260 (7th Cir. 1912)).
9
Id. at 454.
5
10 Id. at 456-57.
11
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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).
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
8 Hudson v. U.S., 272 U.S. 451, 452 (1926) (disapproving Tucker v. U.S., 196 F.
File your client's motion after the Commonwealth v. Moser, 999 A.2d 602, 606 (Pa. Super. 2010).
13 Pa. R. Crim. P. 590 (a), (c).
admission to anything.
12
Moser, 999 A.2d 602, 607 (Pa. Super. 2010).
15
Pa. R. E. 410(a)(2).
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).
14 Commonwealth v. Snyder, 182 A.2d 495, 496 (Pa. 1962); Commonwealth v.
About the Author
Click here to view and/or print the
full notes section for this article.
6 Pa.R.Crim.P. Rule 600(D)(1).
full notes section for this article.
About the Author
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.
In North Carolina v. Alford, the defendant entered a plea of guilty but
stated he was innocent and was pleading to avoid the death penalty. 400
U.S. 25, 27-28 (1970). This differs from a no contest plea because there is no
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).
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.
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A nolo contendere plea already contains numerous benefits for a
criminal defendant. However, rather than limit a no-contest plea to
its rules-based applications, there may be historical and constitutional
dimensions to the plea. At the very least, allowing a client to avoid
admitting to the factual validity of the conduct protects them and
allows them to receive the benefit of a bargain.
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About the Author
Click here to view and/or print the
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
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.
first in his class in 2019 and was an articles editor with the
Dickinson Law Review. With a brief diversion into labor and
employment law, he has been an assistant public defender
with Dauphin County since 2020. His areas of focus include
statutory construction, firearms law and history, and search
and seizure. He has argued before the courts in Dauphin
County, the Superior Court, and the Supreme Court of
Pennsylvania. He is a member of the PACDL amicus curie
committee, and a frequent presenter and collaborator with
the Public Defender Association of Pennsylvania.
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Spencer H.C. Bradley is the
Appellate Attorney for the
Dauphin County Public Defender's
Office. He graduated summa
cum laude from Gettysburg
College in 2016, with a Bachelor
of Arts degree in philosophy and
public policy. Immediately after
attending college, he attended
the Dickinson School of Law in
Carlisle, Pennsylvania. He graduated
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
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.
Vol. 9, Issue 3 l For The Defense 35
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For the Defense - Vol. 9, Issue 3

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