HOLLIDAYSBURG Prosecutors are asking to argue a more substantial drug case before an en banc hearing of Blair County judges on the constitutionality of the state's mandatory sentences.
Blair County District Attorney Richard Consiglio is asking President Judge Jolene G. Kopriva to hear arguments on Wednesday in a case involving Steven Michael Weyant, 30, of Altoona, who is facing heroin charges instead of a case against another man involving marijuana sales near Penn State Altoona as had been planned.
Because of confusion as to how a U.S. Supreme Court decision affects Penn
sylvania's mandatory sentencing laws, the county's five sitting judges, as well as a retired senior judge, will jointly rule how the matter will be handled in Blair County, pending a higher court ruling or legislative action.
The decision to substitute cases for the sake of argument will be up to Kopriva, who is on vacation this week.
The Weyant case was the first mandatory-sentence prosecution that came to the attention of Blair County judges.
Altoona attorney Thomas M. Dickey challenged a proposed school zone mandatory sentence in the Weyant case last November.
Dickey said he is looking forward to arguing the matter next week, noting, "This is a very important legal issue."
He predicted no matter how the decision goes locally, the question of mandatories will probably have to be resolved by the Pennsylvania Supreme Court or the state Legislature.
Last summer, the nation's highest court ruled in Alleyne v. United States that potential mandatory sentences represent a core element of the charges against a suspect and must be proven beyond a reasonable doubt during the guilt phase of a trial.
Previously in Penn
sylvania, evidence that would warrant a mandatory sentence was presented to and decided by a judge after a jury found the suspect guilty.
The unanswered question is whether prosecutors now can amend charges and present evidence for mandatory sentences to juries during a trial or whether the entire mandatory sentence statute in Pennsylvania is unconstitutional.
That's what the en banc hearing is to decide for Blair County.
Judges in other Pennsylvania counties are split on the matter.
Centre County Judge Jonathan D. Grine ruled last week that the U.S. Supreme Court decision did not invalidate Penn
sylvania's mandatory sentence statutes because the defect in the procedure to impose such sentences, the focus of the Supreme Court decision, is easily correctable.
Grine's opinion runs counter to decisions by judges in Lycoming and Chester counties who ruled the state's mandatory sentencing laws are unconstitutional.
Consiglio and his prosecutors argue that the common sense resolution of the issue that could affect hundreds of local cases is to amend the charge against a suspect to ask the jury to decide the question whether a mandatory was violated.
The defense attorneys are contending that the mandatory sentence statues must be rewritten by the state Legislature.
Typical of the petitions being filed by a defense attorney is one involving Tony S. Barnes of Philadelphia, who is charged with drug-related offenses.
His attorney, Assistant Public Defender Edward J. Ferguson, is challenging the imposition of a school zone violation (a two-year mandatory prison sentence) on Barnes for several reasons, one of those being the Alleyne case.
Ferguson wrote in a pretrial request challenging the mandatory that, "This writer will not belabor the points already made by other learned attorneys.
"This case should be added to the glut of such cases pending before this county's judiciary set for en banc argument on this issue."
Mirror Staff Writer Phil Ray is at 946-7468.