HOLLIDAYSBURG - Six judges, for the first time ever in Blair County, sat together Monday to hear arguments for and against the continued use of mandatory sentences as they apply in serious cases of drug distribution, possession of an illegal firearm and abuse of children and the elderly.
Blair County President Judge Jolene G. Kopriva said the judges were hearing arguments as one panel because of the far-reaching effects of a United States Supreme Court decision last summer, Alleyne v. United States, in which the procedure for implementing mandatory sentences in Pennsylvania was among those ruled unconstitutional.
The Supreme Court decision stated that a mandatory sentence represented an element of the crime itself, and its application must be decided by a jury using the beyond-a-reasonable-doubt standard of proof.
That new procedure was counter to Pennsylvania Law, in which a hearing for the application of a mandatory sentence was to be held after guilt was found by a jury.
It was a judge in the sentencing stage, not the jury during trial, that decided if a mandatory sentence was appropriate.
The proof needed was beyond a preponderance of the evidence, a lesser standard than the reasonable doubt outlined in the Alleyne decision.
But the question before the Blair County judges Monday was, "What happens now?"
Hundreds of local cases are affected, many of those involving sales of drugs in school zones, the weight drugs distributed, the possession of illegal firearms by drug dealers and others, and many others.
To Blair County District Attorney Richard A. Consiglio, the answer is to amend the present charges against many suspects facing trial for serious crimes to include the mandatory sentences, thereby letting the juries decide - as Alleyne says.
Altoona Defense attorney Thomas M. Dickey on Monday protested, at times with great emphasis, the DA's attempt to amend existing charges to include the application of a mandatory sentence.
Dickey is representing two men, Jermaine Morgan of Altoona, charged with illegal possession of a firearm, and Steven Weyant, facing prison for distributing drugs within a school zone.
He argued the mandatory sentences in Pennsylvania are now "blatantly unconstitutional" and do not apply.
Consiglio fired back, stating the Supreme Court did not find mandatory sentences unconstitutional, only the procedure used to impose them, and he said the nation's highest court in fact outlined the procedure to be used, which is to amend existing charges so the mandatories can be ruled on by respective juries in the two cases.
Dickey shot back, stating, "I am appalled the District Attorney of this county can stand up here and thumb his nose at the Supreme Court of the United States."
He said the Supreme Court considers mandatory sentences as essentially a "new aggravated crime," therefore existing charges cannot be amended.
Consiglio retorted that the Supreme does not consider the amendment of an existing crime to be new crime but only an enhancement or a greater sentence for a crime already charged.
Each attorney was given 15 minutes to argue, and each was given time to rebut the arguments of the other side.
As Dickey and Consiglio expressed their opinions, the the judges chimed in with questions.
Judge Timothy M. Sullivan asked if, since judges have discretion to amend charges, the decision cleared the way for the application of mandatories.
Dickey said it didn't because, at this point in time, there is not procedure for the application of mandatories in Pennsylvania.
That has to come from the legislature, not judges rewriting the law, he explained.
Judge Daniel J. Milliron expressed his displeasure with mandatories in general, stating they are passed because legislatures "want to become judges."
Milliron, a member of Pennsylvania's Sentencing Commission, said the District Attorneys Association in the state favors mandatories because they don't trust judges in their use of discretion.
Consiglio said that's because all over the country there are judges who impose minor sentences for atrocious crimes - less than a year for raping a 3-year-old, he stated as an example.
"You've taken our discretion and put it in your office," Milliron said as he continued the debate.
Judges Kopriva, Elizabeth A. Doyle, Wade Kagarise and Senior Judge Hiram A. Carpenter either asked questions or made points.
As the rapid-fire session came to an end, Kopriva commented how prepared the attorneys had been for the unprecedented argument.
The judges will now confer and make a decision whether mandatory sentences can still apply in Blair County.
Judge Kopriva offered no deadline for a decision.
Mirror Staff Writer Phil Ray is at 946-7468.