For the Defense - Vol. 5, Issue 3 - 55

*

Discuss this waiver with your client with the same
Using the strategy above, people both in and
At least one district court within the Third Circuit
Conclusion
Discuss
this
waiver
with
your
client
with
the
same
Using
the
strategy
above,
both in andsuccess with
seriousness
you
would
discuss
the
waiver
of
any
outside
my office
havepeople
had tremendous
have held that an inmate can move for compassionate
30
seriousness
youafter
would
discuss
the have
waiver
of exhausted.
any
outsideThe
mycurrent
office
have
had
tremendous
success
with
constitutional
right.
Rule
600 motions.
Oftentimes,
just
making
it plain
release
only
these
appeals
been
pandemic
has brought
needed
attention
30
However, this
interpretation
reads into the statute
constitutional
right.
Rule 600
motions.
Oftentimes,
just
making
it
plain
to
the
Commonwealth
that
you
intend
to
seriously
to a moribund area of law: compassionate release. It
* Request
discovery
earlyto
and
inthat
writing.
That way,
something
that
is not there,
wit,
a defendant
one
of the
few
statutory
available
to theis Commonwealth
that
you
to seriously
litigate
thisvery
issue
can
get intend
youvehicles
results.
It is onlyfor
one
Request
discovery
early and infails
writing.
That "the
way,
the Commonwealth
to provide
requested
may ifmove
for compassionate
release
upon
lapse
judges
to
re-address
a
sentence.
For
obvious
reasons,
litigateweapon
this issueincan
get
you results.
It is onlya one
your
arsenal,
but because
win
means
of 30
days fromany
therequired
receipt
such a requested
request
bybe
the
if the
Commonwealth
fails toof
provide
district courts are becoming overwhelmed with such
discovery,
continuance
will
on
weapon
in your arsenal,
but because
a win
discharge,
it is a potent
weapon
thatmeans
should never
warden
of
the
defendant's
facility
only
if
the
warden
discovery,
required continuance
will
be on with the motions due to the COVID-19 pandemic. Knowing the
theany
prosecution.
If you have to
follow-up
discharge,
it
is
a
potent
weapon
that
should
never
be
overlooked.
fails to respond." There is no controlling authority in
the prosecution.
If you have
todiscovery
follow-upthey
with
the failed to procedural steps for seeking compassionate release
Commonwealth
about
have
the Third Circuit holding such an interpretation.
can assist an inmate in having a district judge reach
be overlooked.
Commonwealth
about
discovery
they havesuch
failed
to
hand over,
be sure
to memorialize
requests
in the merits of the request. While those have primarily
NOTES:
handIndeed,
over,
bethe
sure
to memorialize
requests
in
a writing
such
as
an email.
Third
Circuit
in Raia,such
supra,
did
been1 medical-based, as the pandemic progresses and,
NOTES: Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
not even
address
particular issue or could be
unfortunately,
worsens within the BOP, the grounds
a writing
such
as anthis
email.
2
1
U.S. ConSt
Amend162
. VI;A.3d
PA. CONST.
1, § 9.
Commonwealth
v.. Mills,
323and
(Pa.art.
2017).
*
If
a
continuance
is
required
due
to
the
fairly read to imply that a warden's denial of a
for
compassionate
release
can
will
likely broaden.
3
2
Commonwealth
v. DeBlase,
665
A.2d
427, 431 (Pa. 1995).
U.S.
C
onSt
.
A
mend
.
VI;
PA.
CONST.
art.
1,
§
9.
If acompassionate
continuance
isrelease
required
due of
to
the full exhaustion
Commonwealth's
failure
diligence,
be sure to 3 And4 broaden
request
requires
quickly
they
must,
for,
as
of
this writing, the
Barker v.v.Wingo,
407
U.S.
514,
530431
(1972)
Commonwealth
DeBlase,
665
A.2d
427,
(Pa. (articulating
1995).
of administrative
appeals
a district
court
the
BOP
is
reporting
that
of
the
111
inmate
deaths
Commonwealth's
of before
diligence,
be sure
to
put that onfailure
the
record
at the
time
the
continuance
4
test);
Commonwealth
v. Preston,
904 A.2d
Barker v.constitutional
Wingo,
407 U.S.
514,
530 (1972) (articulating
the
25
so
far,
four
occurred
once
the
inmate
was
placed
on
may
entertain
a
motion
for
compassionate
release.
1, 10 (Pa.
Super.
Ct. 2006) (the
Barker test
an entirely
put thatis on
the record
at the
time
thedoes
continuance
requested.
Even
if the
judge
not rule in
constitutional
test);
Commonwealth
v. Preston,
904isA.2d
homeseparate
confinement,
suggesting
that
the
remedyneeds
did to be
Moreover, DOJ itself is on record in Middle District
analysis
from
Rule
600
and
therefore
(Pa. Super. Ct. 2006) (the Barker test is an entirely
is requested.
Even you
if thehave
judge
does preserved
not rule inthe issue for1, 10
your favor,
at least
not arrive
soon
enough.
of Pennsylvania that "§3582(c)(1)(A)'s exhaustion
raised
separately).
separate
analysis
from Rule 600 and therefore needs to be
your
favor,
you is
have
at least
preserved
issue for
appeal.
5
requirement
satisfied
when
(as here)the
a defendant's
Pa.R.Crim.P.
raised separately). Rule 600(2)(a); see also Commonwealth
NOTES:
appeal.
request is denied by the warden within 30 days of
5
v. Kearse,
890 A.2dsee
388,also
395Commonwealth
(Pa. Super. Ct. 2005) (no
Pa.R.Crim.P.
Rule 600(2)(a);
* All and
motions
to dismiss
pursuant
600 must be
receipt
30 days
have passed
since to
theRule
warden's
"prejudice"
need
be(Pa.
shown
to obtain
Rule
v.
Kearse,
890
A.2d
388,
395
Super.
Ct. 2005)
(no600 dismissal).
31
17
1
All receipt."
motions
toindismiss
pursuant
to Rule
600motion
must be
File your
client's
after the"prejudice"
made
writing.
While
Rule
600
has
a
more
definitive
time
period,
the sole
"A court
generally
may
not
correct
or
modify
a prison
need be shown to obtain Rule 600 dismissal).
31
focus
of
Rule
600
is
on
the
action
of
the
Commonwealth.
File your
client's motion
after
the rules While
made in365-day
writing.period
has elapsed.
If the trial
judge
sentence
once
it
has
been
imposed,
unless
permitted
Rule 600 has a more definitive time period, the sole by
Thus,
a constitutional
argument
should
be forwarded
At
least
three
other
district
courts
within
this
statute
or 600
by
Federal
of of
Criminal
Procedure
35."
focus
of
Rule
is on theRule
action
the Commonwealth.
365-dayagainst
periodyou
has and
elapsed.
If the trialthe
judge
rules
subsequently
Commonwealth
when
a delay
prejudices
a94-353,
defendant
and
that
delay
was
Circuit
have
held
that
the
lapse
of
30
days
is
all
that
Thus,
a
constitutional
argument
should
be
forwarded
United
States
v.
Tidwell,
NO.
2020
U.S.
Dist.
LEXIS
againstcauses
you and
subsequently
the period
Commonwealth
another
substantial
of delay, file
primarily
caused
by
the
courts.
when
a delay
a defendant
that delay
was
is required before filing a motion for compassionate
139434,
*3prejudices
(E.D. Pa. Aug.
5, 2020)and
(citations
omitted).
6
causes
another
substantial
period
of delay,
file
a new
Rule
600
motion
based
on this
additional
Rule
600(D)(1).
primarilyPa.R.Crim.P.
caused by the
courts.
release
in federal
court
even
where
the
warden
denied
18 additional
a new
motion
based
ontothis
time600
and
litigate
it prior
any
trial to preserve an6 Pa.R.Crim.P. Rule 600(D)(1).
the Rule
initial
request
within
30 days.
Click here to view and/or print the
time and
litigate to
it prior
to any trialtime
to preserve
objection
the additional
period. an
The
only
U.S.
Circuit
Court
of
Appeals
to
have
Click here
to view
and/or
full notes
section
forprint
this the
article.
objection to the additional time period.
* At the
Rule 600
the defense
directly
addressed
thehearing,
issue, as after
of August
2020, has
full notes section for this article.
has Rule
held
that
"[p]risoners
who
seek
compassionate
At the
600
hearing,
after
the
defense
has
made
a prima
facie
showing
that
the
defendant
release
have
the
option
to
take
their
claim
to
made ahas
prima
thewithin
defendant
notfacie
beenshowing
broughtthat
to trial
365 days,
court within 30 days, no matter the appeals
hasfederal
notthe
been
brought19to trial
within
days,of proving
Commonwealth
bears
the365
burden
available to them." Moreover, the 30-day period
theisCommonwealth
bears
the burden
of with
proving
that
they have
nonetheless
diligence.
Alan Ellis is a Philadelphia native
not
jurisdictional
in
nature,
but acted
rather
is a claimsthatprocessing
they
have
nonetheless
acted
with
diligence.
and
a past president
ofisthe
This
means
that
after
the
defense
has
made
rule in any event and therefore is subjectsuch
to
Katherine
Ernst
an
20
National
Association
of Criminal
or facie
waiver
if not
properly
Thisforfeiture
means
that
aftershowing,
the
defense
made
such
a prima
it is has
theinvoked.
Commonwealth
Katherine
Ernst
is an
appellate
attorney
the
Defense
Lawyers.
He is awith
Fulbright
a primawho
facieshould
showing,
it is the Commonwealth
be required
to put on its evidence
appellate
attorney
with
the
Montgomery
County
Public
award
recipient and
a criminal
Step
is proving
to the
District
Court
who should
be required
to put
on its
evidence
and Three
the
defense
should
only
argue
after that
the
defense
lawyer
with
offices
in
Montgomery
County
Public
Defender's
Office.
She
21
is an "extraordinary
and
compelling
San Francisco and New York. He is
andthere
theCommonwealth
defense
should has
onlydone
argue
thereason"
so.after
Essentially,
a Rule 600
Defender's
Office.
handles
appeals
fromPrison
all
for the inmate's release. So far, the mere fact of
the
co-author
ofShe
"Federal
Commonwealth
has
so. Essentially,
a Ruleidentically
600
hearing should
proceed
intoform
almost
22
the pandemic
doesdone
not
appear
be sufficient.
handles
appeals
from
all
Guidebook:
Sentencing
and Post
units, juvenile
to homicide,
hearing
proceed
in form inmates
almost
identically
toshould
a suppression
hearing.
If the judge
askshad
you
However,
since
the pandemic,
have not
Remedies."
units,Conviction
juvenile
homicide,
and sheto
also
formulates
allege
they prior
are suffering
from
terminal
illness.
to atosuppression
hearing.
If the
judge
asks you
to argue
to the
Commonwealth's
evidence,
and shelegal
also strategy
formulates
for pre-trial
Rather,
simply
suffering
fromcould
an ailment
that the
CDC
to argue
prior
thethat
Commonwealth's
make
itto
clear
you
notevidence,
possibly
argue
strategy
for pre-trial
hasitidentified
making
them
more
susceptible
to
and trial units.legal
Katherine
graduated
Magna Cum
make
clear
thatas
you
could
notuntil
possibly
argue what
on
behalf
of
your
client
you
know
the
Mark
H.
Allenbaugh
isCum
a
COVID-19 has proven sufficient. Importantly, successful
and
trial
units.
Katherine
graduated
Magna
Laude from Loyola Law School, New Orleans
on applications
behalf
of your
until
yourelease
know
what
the
Commonwealth's
evidence
of diligence
is.
sentencing and mitigation
for client
compassionate
will include
Laude from
Loyola
Law on
School,
Newand
Orleans
in 2007
and was
law review.
She
practiced
Commonwealth's
evidence
of diligence
is. include the
consultant,
co-founder
of
the inmate's release
plan and
should also
* If the Commonwealth
appears
at the
Rule 600
in 2007at
and
was on law
review.
practiced
Sentencing
Stats, LLC (www.
Kaufman,
Coren
& RessShe
in Philadelphia
out
inmate's medical records (under seal, of course) if
If the
Commonwealth
appears
at the
Rule
600
hearing
andthe
does
not
present
evidence
that
sentencingstats.com),
pertinent.
While
vast
majority
ofany
compassionate
at Kaufman,
& and
Ressthereafter
in Philadelphia
outwhich
of lawCoren
school,
did work
in the
provides
expert
analysis
hearing
does
notdiligence-for
present on
anythe
evidence
itand
acted
with
instance,
they
did not of law school, and thereafter did work in the of
release
grants
have
focused
inmate'sthat
medical
intersection of horseracing
law
and
§1983
a
federal sentencing and BOPfor
data
history,
at least
has cited
non-medical
reasons,
it acted
with
diligence-for
not made
bring
in
theone
officer
toinstance,
testify
tothey
the did
attempts
tolaw
attorneys
nationwide.
of horseracing
and §1983
forpassion
a He
number
of years before
following
her
such
as
favorable
changes
intervening
case
law or that intersection
bring
into
the
officer
to
testifyto
tothe
thedefendant-argue
attempts
made
find
and apprehend
is
a
former
staffer
for
the
U.S.
number
of
years
before
following
her
passion
the length of imprisonment the inmate already has
for indigent criminal defense.
to find
and
apprehend
the
defendant-argue
that
Sentencing
Commission.
they
have
not
met
their
burden
because
the
burden
served.23
for indigent criminal defense.
they have
not
met
their
because
the burden
proof
includes
the burden
of production
and
Forofan
example
of a burden
successful
compassionate
release
of proof
includes
burden
of production
and States
Share this article
motion
filed bythe
one
of the authors,
United
arguments
of counsel
are
not see
evidence.
24
v.
Pickard.
Share this article
arguments of counsel are not evidence.
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About the Authors

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Vol. 4, Issue 4

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For The Defense

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3 lThe
For Defense
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Vol. Vol.
4, Issue
4 For
9

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55
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For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3
