HOLLIDAYSBURG - Six Blair County judges decided Friday to take the unusual step of sitting together to determine the constitutionality of Pennsylvania's mandatory sentencing laws as they apply to drug cases.
State law allows prosecutors to request mandatory sentences based on the weight of the drugs being distributed, if the distribution occurs within 1,000 feet of a school or if a firearm is involved.
But defense attorneys are challenging the law's constitutionality based upon a U.S. Supreme Court decision last summer in Allenye v. U.S. In that ruling, the high court decided that application of a mandatory sentence is a question that must be answered during a trial by a jury or judge sitting as a fact-finder.
The Supreme Court decision involved a federal statute, but it set a precedent that impacted Pennsylvania's procedures.
Prior to the Allenye decision, a judge in Pennsylvania would decide whether a mandatory sentence was to be imposed after guilt was established. Pennsylvania law stated that the mandatory sentence could be imposed if the judge found "by a preponderance of the evidence" that it was applicable.
That's no longer permitted, and several area cases have already been sent back for resentencing because the Allenye decision.
Now another, more perplexing problem has arisen.
Since the Supreme Court decision, Pennsylvania prosecutors have been requesting court permission to amend drug charges awaiting trial so a jury would decide whether the conditions required for a mandatory sentence were present.
Defense attorneys are objecting, saying the whole mandatory law is unconstitutional and therefore the state Legislature must rewrite it. The defense lawyers are contending mandatory sentences are in essence no longer applicable.
Prosecutors are saying only the procedure for imposing mandatory sentences has changed and that they are still viable, if done the right way.
The question over whether the mandatory sentences still exist will be the subject of a hearing before Blair County's five judges, including President Judge Jolene G. Kopriva, Judges Timothy M. Sullivan, Elizabeth A. Doyle, Wade Kagarise and Daniel J. Milliron and Senior Judge Hiram A. Carpenter, who, while retired, still hears many criminal cases.
The judges met at noon Friday to discuss what to do about the mandatory conundrum because it will affect hundreds of cases, according to Kopriva.
An en banc hearing at the county level is very unusual, Kopriva said, because such a proceeding is reserved for an issue that has an impact on the whole system.
"It's a constitutional question. It doesn't get more en banc than this," she said.
Kopriva, nearing 30 years on the bench, said she remembers only one other such hearing and that had to do with how to enforce mediation decisions in civil cases.
The case that brought everything to a head in Blair County stems from the prosecution of a 20-year-old former Penn State Altoona student, Dylan McKenzie Davis of Ellicott City, Md., who is charged with marijuana drug offenses.
His attorney, Philip Masorti of Centre County, objected to an attempt by Assistant District Attorneys Peter Weeks and Russell Montgomery to amend the charges against Davis to include a two-year mandatory for a school zone violation.
The legal battle landed in Sullivan's courtroom, and he informed the other judges of the major constitutional question that had arisen.
Masorti said county judges in Chester and Lycoming have found the present mandatory laws wholly unconstitutional.
For weeks Sullivan has been reading cases supplied by Masorti and in the past couple of weeks has prepared an opinion.
Meanwhile, defense attorneys like Thomas M. Dickey of Altoona, who handles many drug cases, wanted to submit an amicus brief, or friend-of-the-court brief, outlining why he thinks the present mandatory law should be tossed out.
Extensive research into the issue has been done by Doyle and Kagarise as well.
The judges want a hearing scheduled quickly, and as of Friday afternoon, court administrator Janice Meadows was attempting to accommodate the judges' wishes.
The initial hearing will involve argument only on the Davis case.
But Kopriva said that one case "is only a short step to the other cases."
She said good judicial practice requires the judges to be on the same page concerning such an issue.
A decision agreed to by all the judges will, she said, provide certainty for the defendants, the attorneys and other agencies.
The Pennsylvania Superior Court just two weeks ago sent back the Natasha Miller drug case for resentencing. She was sentenced by Doyle to 16-32 years that included the application of a mandatory sentence.
A major drug case in Clearfield County also has been returned for resentencing. Defendant Michael Clair Styers had been sentenced to 22-44 years.