HOLLIDAYSBURG - A Centre County defense lawyer is challenging the constitutionality of a state law that mandates a two-year jail term for an individual distributing controlled drugs within 1,000 feet of a school.
A petition by attorney Phil Masorti is under review by Blair County Judge Timothy M. Sullivan, who heard arguments earlier this week from Masorti and Assistant District Attorney Russell Montgomery.
Sullivan has taken the case under advisement, but in view of the serious nature of the challenge, he could call for it to be reargued before all five of the county's judges, known as an en banc hearing.
The case stems from a two-month drug investigation in 2012 that led to the arrest of Penn State Altoona freshmen Dylan McKenzie Davis, 19, of Ellicott City, Md., and roommate, Nigel A. Fender, 18, of Frederick, Md.
The two were charged with distributing marijuana and related offenses of conspiracy, possession of marijuana and possession of drug paraphernalia.
According to court records, Fender was placed on 24 months' probation by Blair County President Judge Jolene G. Kopriva on April 20, 2013.
The Davis case is still moving through the system.
In June, the U.S. Supreme Court ruled in Alleyne v. USA that any time the prosecution is seeking a sentence enhancement - a mandated sentence - a jury must decide if the enhancement is appropriate.
In the Davis case, it would mean that the jury would have to determine if a two-year prison sentence is to be imposed for sales within a school zone, the school in this case being Penn State Altoona.
Until the Alleyne case, Pennsylvania law specified that a sentence enhancement, like selling drugs within a school zone, was not an "element" of the offense charged against the suspect. The enhancement did not come up until the jury decided guilt. It was then up to a judge to decide by a "preponderance of the evidence" if the enhancement was applicable.
In November, Montgomery asked that the charges against Davis be amended to include the two-year enhancement because of an alleged on-campus drug sale.
Montgomery argued that just because the one part of the school zone enhancement statute is unconstitutional does not mean the entire statute is unconstitutional. He contends the problem can be resolved by amending the charges against Davis.
Masorti argued that the whole statute is unconstitutional and the only resolution would be a new school zone law passed by the Legislature.
The defense in its petition pointed out that five judges in Lycoming County, sitting en banc, ruled the total law unconstitutional and refused to let a prosecutor there amend charges against two alleged dealers.
A judge in Chester County has also ruled the present law unconstitutional.
While rulings in those counties aren't binding on Blair's judges, Masorti has asked Sullivan to read the opinions from other counties as he contemplates the next step.
One point Masorti made is that a suspect does not have the ability to determine if he should accept a plea agreement if he does not know the possible sentence he could receive if convicted.
The sale of marijuana under a pound is a probation-to-30-day jail term, Masorti stated. The same charge with the enhancement is two years in jail, Masorti noted.
He called it an "enormous sentencing gap."
Masorti said submitting an amended complaint to a jury in the Davis case would be rewriting an unconstitutional law and that would be a violation of the suspect's right to a fair trial and would be a usurpation of the Legislature's function.
Davis is charged with three sets of offenses. Police allegedly found 5 ounces of marijuana packaged for sale, $934 cash, scales and packaging material in the apartment occupied by Davis and Fender.
The Pennsylvania Superior Court on Friday in an unusual move took judicial notice that the 2012 sentence imposed on a Clearfield County drug dealer, 22-44 years, was illegal because mandatories were applied by Judge Frederic Ammerman.
The three-judge panel did not toss out any of the convictions returned by the jury at the conclusion of the trial of Michael Clair Styers, 56.
Styers, a Clearfield native with a Mercer address, was the leader of a multi-million drug ring that distributed heroin, cocaine, Fentanyl and prescription drugs.
He was among 14 arrested in 2008 because of an investigation named Operation Drive Thru because drugs were being distributed through a drive-thru window of a mobile home.
Styers' sentence was not an issue for review, but the Superior Court panel took judicial notice of the Alleyne decision and declared that mandatory sentences as they were applied under Pennsylvania law are illegal although the judges did not find the law unconstitutional).
"Accordingly, we vacate [Styers'] sentence and remand for resentencing," the court stated.
Clearfield District Attorney William Shaw could not be reached for comment.
Mirror Staff Writer Phil Ray is at 946-7468.