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Update on Mandatory Minimums

Is there an update on mandatory minimums in Pennsylvania? Yes.

On August 20, 2014, the Superior Court of Pennsylvania, sitting en banc, published their decision in Commonwealth v. Newman, 2014 PA Super 178. The opinion was written by Judge Ford Elliot and it gets rid of the five to ten year drug and gun (VUFA) mandatory minimums in Pennsylvania. Click here to read it.

Alleyne v. US, 133 S.Ct. 2151 (2013)

As we previously wrote, there a case called Alleyne v. US, 133 S.Ct. 2151 (2013) that changes the requirements for states to use mandatory minimums. The requirement is basically that a defendant must have a right to have the jury determine the separate elements of the mandatory minimums beyond a reasonable doubt. If the statute doesn’t allow for this, then the state statute is unconstitutional and the mandatory minimums no longer apply. In Pennsylvania, the statute isn’t even close to fulfilling the requirements of Alleyne.

Newman is clear that PA’s mandatory minimums for guns and drugs is invalid under Alleyne and there is no longer a 5-10 mando for those crimes. Further, the ruling is retroactive, meaning we can attempt to appeal previous sentences if the issue was properly preserved.

Severable

A question exists and is often argued by the DA’s office that the statute is severable. That means the DA’s want to keep the parts of the statute that are not unconstitutional. By severing, they would be allowed to keep the 5-10 mandatory minimum. The severance would mean that after the jury gave a verdict, the jury would be sent back out to determine if the gun was possessed along with the drug dealing activity. There would be a guilty phase and a penalty phase. Newman also says this is not possible under the current statutory scheme and the entire statute is bad. The Superior COurt opinion says that the general assembly must address the issue and re-write the statute.

Author: Brian Zeiger
Brian Zeiger

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.