For the Defense - Vol. 8, Issue 4 - 13

your favor, you have at least preserved the issue for
appeal.
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
be eligible for release in December 2023. Because of the delayed
application, however, his reduced sentence would not be effective
for at least another two months.
* Request discovery early and in writing. That way,
if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
Conclusion
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
There may be many defendants who find themselves in the
position of the hypothetical defendant described above. Notably,
delaying the release of someone in a situation similar to the
hypothetical defendant does not serve the purposes for which the
Commission delayed the retroactive application of Section 4C1.1.
Once again, the Commission stated that the delayed application
would allow defendants the opportunity to attend reentry and
transitional programs, but the hypothetical defendant was only in
prison for six months and likely would not have any great need
for transitional services. Many real-life qualifying defendants with
relatively short sentences would similarly not have a great need
for these services. Of all 7,272 offenders the Commission has
determined eligible for relief under the new Guideline, only 135
appear to be in the Pennsylvania federal Districts.49
Presumably, only
a small fraction of those would be eligible for immediate release.
Nonetheless, practitioners should carefully analyze qualifications
and file those motions as soon as practical.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
separate analysis from Rule 600 and therefore needs to be
raised separately).
File your client's motion after the9 U.S. Sent'g guidelineS manual § 4C1.1(a)(2-10) (U.S. Sent'g Comm'n 2023).
10 U.S. Sent'g guidelineS manual § 4C1.1(a)(6, 9) (U.S. Sent'g Comm'n 2023).
11 U.S. Sent'g guidelineS manual § 4C1.1(a)(6) (U.S. Sent'g Comm'n 2023).
12 U.S. Sent'g guidelineS manual § 4C1.1(b)(3) (U.S. Sent'g Comm'n 2023).
13 U.S. Sent'g guidelineS manual § 2.B1.1 cmt. n.4(F) (U.S. Sent'g Comm'n 2023).
8 U.S. Sent'g guidelineS manual § 4C1.1(a)(2-10) (U.S. Sent'g Comm'n 2023).
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
Guideline can be of great benefit for white collar offenders.
NOTES:
1
releases/august-24-2023.
2
effective-november-1-2023 (last visited Oct. 18, 2023).
3
effective beginning on February 1, 2024. Id.
4
Id.
While Section 4C1.1 will provide Guideline range reductions
and, in turn, reduced sentences for many zero-point offenders,
defendants and defense attorneys alike must be aware that not
all zero-point offenders will qualify for this reduction. Section
4C1.1's numerous exceptions could pose insurmountable hurdles
to the reduction regardless of a defendant's criminal history score.
While white collar defendants may often be good candidates for
the reduction, they should be particularly wary of the exceptions
for crimes causing substantial financial hardship and crimes against
vulnerable victims. These seem to be the most applicable exceptions
to white collar defendants, and courts have a fair amount of
discretion when determining whether they apply. Moreover, even
if a defendant's conduct does not fall under one of the specifically
enumerated exceptions, the application notes provide courts with
additional discretion to impose an upward departure based on other
criminal history considerations. Defendants and defense attorneys
must be conscious of these many hurdles when seeking relief under
Section 4C1.1.
File your client's motion after the
If the hurdles can be cleared, however, the new
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
5
Using the strategy above, people both in and
outside my office have had tremendous success with
Rule 600 motions. Oftentimes, just making it plain
to the Commonwealth that you intend to seriously
litigate this issue can get you results. It is only one
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
full notes section for this article.
PANTONE
2955C
7406C
CMYK
90/78/39/30
9/22/91/0
NOTES:
1
RGB
22/58/92
234/194/56
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
About the Author
Click here to view and/or print the
full notes section for this article.
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PANTONE
2955C
CMYK
90/78/39/30
RGB
for federal black lung benefits. He also clerked for the Prince
William County Attorney's Office. He can be reached at cjones@
mcneeslaw.com or 717-237-5279.
7406C
9/22/91/0
22/58/92
234/194/56
HEXIDECIMAL
See News Release, U.S. Sentencing Commission Votes to Allow Retroactive
Sentence Reductions and Announces Its Next Set of Policy Priorities, U.S.
Sent'g Comm'n, (Aug. 24, 2023), https://www.ussc.gov/about/news/pressAdopted
Amendments (Effective November 1, 2023), U.S. Sent'g Comm'n,
https://www.ussc.gov/guidelines/amendments/adopted-amendments*
If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
5 U.S. Sent'g guidelineS manual § 4C1.1(a)(2-10) (U.S. Sent'g Comm'n 2023).
6 U.S. Sent'g guidelineS manual § 4C1.1(a)(1) (U.S. Sent'g Comm'n 2023).
See Amendments to the Sentencing Guidelines, U.S. Sent'g Comm'n, at 79
(April 27, 2023) (effective date Nov. 1, 2023) https://www.ussc.gov/sites/
default/files/pdf/amendment-process/reader-friendly-amendments/202305_
RF.pdf.
7
See News Release, U.S. Sentencing Commission Votes to Allow Retroactive
Sentence Reductions and Announces Its Next Set of Policy Priorities, U.S.
Sent'g Comm'n, (Aug. 24, 2023), https://www.ussc.gov/about/news/pressreleases/august-24-2023.
The retroactive application will be delayed, with
Qualifying individuals becoming eligible for reduced sentences made
#153A5B
#EAC137
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
Vol. 8, Issue 4 l For The Defense 13
Vol. 4, Issue 4 l For The Defense 9
James T. Clancy practices in McNees
Wallace & Nurick's Litigation
and White Collar Defense, Public
Corruption & Investigations Groups,
serving clients from Harrisburg,
Pennsylvania. He worked in the
federal courts for more than 32
years and as an Assistant U.S.
Attorney in the Middle District for
more than 22 of those years. Jim
was a trial attorney for the U.S.
Department of Justice Antitrust
Division, where he worked in the Litigation I Section based in
Washington, D.C., earlier in his career. He has volunteered at the
Dickinson School of Law teaching Trial Advocacy as a member of the
Advocacy Faculty since 1998 and Skills and Methods as a Practitioner
Instructor since that course began in 2015. He can be reached at
jclancy@mcneeslaw.com or 717-237-5369.
Sarah Hyser-Staub is a litigator
and co-chair of McNees' White
Collar Defense, Public Corruption &
Investigations Group, serving clients
from Harrisburg, Pennsylvania.
She helps business owners and
public leaders navigate crises by
safeguarding their rights and
protecting them from government
overreach. Over the course of
her career, Sarah has represented
clients before state and federal
About the Authors
About the Author
Click here to view and/or print the
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
grand juries; responded to subpoenas from the U.S. Department
of Justice, Pennsylvania Office of Attorney General and other state
and federal agencies; and provided guidance on compliance with
various statutory regimes. She also has a robust pro bono practice.
She can be reached at sstaub@mcneeslaw.com or 717-237-5473.
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Vol. 4, Issue 4 l For The Defense 9
Charles T. Jones III is a litigator
who serves McNees clients from
Harrisburg, Pennsylvania. He
assists clients in a wide variety of
litigation matters, including higher
education issues, landlord-tenant
disputes, contract disputes, and
guardianship matters. He worked
for the Washington and Lee
Advanced Administrative Litigation
Clinic (Black Lung Clinic), where he
assisted coal miners in their pursuit
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol8_issue4_2023/src/docs/New_Sentencing_Guidelines_Notes._Staub_FINAL.pdf https://www.ussc.gov/about/news/press-releases/august-24-2023 https://www.ussc.gov/about/news/press-releases/august-24-2023 https://www.ussc.gov/guidelines/amendments/adopted-amendments-effective-november-1-2023 https://www.ussc.gov/guidelines/amendments/adopted-amendments-effective-november-1-2023 https://www.ussc.gov/about/news/press-releases/august-24-2023 https://www.ussc.gov/about/news/press-releases/august-24-2023 https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/202305_RF.pdf https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/202305_RF.pdf https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/202305_RF.pdf

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