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Rudinski and Lynch argue against Mandatories

The U.S Supreme Court case has changed the landscape of mandatory minimum sentences in the Commonwealth of Pennsylvania. In the case, Alleyne was charged, with carrying a firearm in relation to a violent crime, which carries a 5-year mandatory minimum sentence. A sentence to this crime in Pennsylvania increases to a 7-year minimum “if the firearm is brandished,” and to a 10-year minimum “if the firearm is discharged.” In convicting Alleyne, the jury found that he had “used or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “brandished.” The judge found that he "brandished" the weapon at sentencing to trigger the mandatory minimum of seven years, not the jury.  The Supreme Court held that “brandishing” would be an element of the crime and therefore left to the province of the jury to determine, not the judge.

The Holding renders Pennsylvania’s mandatory minimum statutes unconstitutional and in contest with federal and state due process rights. The statutes that control the mandatory minimums in this state require that a judge find the triggering fact by a preponderance of the evidence. The Supreme Court’s holding says that the triggering facts are elements of the crime and elements of a crime need to be proven beyond a reasonable doubt by a jury. Because the statute states the wrong standard of law and wrong party to make the determination, it is unconstitutional and non-severable.

A new approach the Lycoming County District Attorney’s office is using is to add the triggering element to the criminal information so it an element to proven at trial. Attorney Jerry Lynch argued at Lycoming County Courthouse in front of the Honorable Marc Lovecchio that by statute a criminal information must include a concise statement of the law and be free of legal error. Including an unconstitional statute would be legal error. Knowingly including or adding an unconstitutional statute in a criminal information would be converse to legislative intent an purpose concerning the criminal information. Moreover, in this great Commonwealth, the jury is charged to determine guilt, not the sentence, and by including the triggering facts the jury is act to determine he sentence.

The Honorable Marc Lovecchio has reserved decision on the argument and in Mr. Lynch’s request for interlocutory appeal to the Superior Court for a determination on interpreting the holding in Alleyne with relation to the criminal information.





January 30, 2014 Categories: Criminal, Trial and Litigation