For the Defense - Vol. 9, Issue 2 - 12

Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
satisfy the appearance of justice. " Offut v. United
States, 348 U.S. 11, 14 (1954) (emphasis added). Your
office holds tremendous power to see to it that " the
appearance of justice " prevails in our Commonwealth,
and we're simply entreating you to direct your office
to join us in our effort to restore the appearance of
justice in Mr. Hidalgo's case.
* 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.
Relief and Resentencing
On
January 10,
2024,
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.
The Takeaway
Discuss this waiver with your client with the same
seriousness you would discuss the waiver of any
constitutional right.30
We never heard back from AG Henry. But a few weeks later,
as the Commonwealth's deadline to answer Mr. Hidalgo's
Petition drew near, we reengaged our prosecutor. The tone
had changed again-this time back to the positive. While still
adversaries, we were aligned once more that, be it for justice
or the mere appearance of justice, PCRA relief was necessary,
and Efrain Hidalgo needed to be resentenced. Seemingly,
there was support from the top, though we never confirmed
as much-just optimistic speculation on our part.
the PCRA Court, with the
* 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.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
Commonwealth's consent, entered an Order granting Mr.
Hidalgo's PCRA Petition, vacating his judgment of sentence, and
ordering resentencing. And on February 8, 2024, Mr. Hidalgo
was resentenced to an aggregate term of imprisonment of 12
to 24 years with credit for time served, without objection by
the Commonwealth. The resentencing judge found that Mr.
Hidalgo
File your client's motion after the
* 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.
has served his entire sentence and he shall be released
from incarceration forthwith...The Defendant has
served over 24 years in the State Correctional System
and we are satisfied that this resentence is fair and
just under all the facts and circumstances of this case.
We are satisfied that the Defendant has paid his debt
to society and has earned the right to live a productive
life in his community.
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.
5
For Cuso.
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.
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
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Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
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* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
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3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
File your client's motion after the
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).
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).
Justice eventually prevailed for Efrain Hidalgo not only
because of our efforts, but because of the efforts of others
genuinely interested in the notion that justice is something
we all ought to pursue. A reporter, who believed that Mr.
Hidalgo's story needed to be told, told his story and, perhaps
unwittingly, opened the door for Mr. Hidalgo to return to court
and seek relief. Two professors-the champions of this story, Dr.
Jeffrey Ulmer and Dr. Holly Nguyen-who generously shared
their expertise and scholarship and formulated the empirical
foundation for Mr. Hidalgo's success. And our colleagues
on the other side of the " v " -the attorneys in the Office of
Attorney General-who gave Mr. Hidalgo's case meaningful
consideration and, in our view, fulfilled their roles as ministers
of justice. Without their combined efforts, we may not have
had the occasion to write this article celebrating Mr. Hidalgo's
freedom.
* 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.
12 For The Defense l Vol. 9, Issue 2
* 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.
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).
NOTES:
1
About the Authors
About the Author
Click here to view and/or print the
full notes section for this article.
Pictured L to R: Attorney Ryan H. James, Efrain " Cuso "
Hidalgo, Attorney Stephanie M. Noel (March 29, 2024).
These mandatory minimum sentencing provisions have since been
invalidated in the wake of Alleyne v. United States, 570 U.S. 99 (2013).
full notes section for this article.
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
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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.
her own law firm, Stephanie proudly served for over five
years as an Assistant Public Defender at the Allegheny County
Office of the Public Defender and worked as an associate at a
boutique criminal defense law firm in Pittsburgh.
To that end, the takeaway for us as criminal defense
practitioners, who are constantly fighting uphill battles for
our clients-at times, at an immense personal cost-is that we
should implore our opponents and other stakeholders to buy in
to the cause of justice whenever and wherever we can. And we
should never be timid in pursuing justice, even if that requires
knocking at the prosecutor's door. They might open it. To our
fellow practitioners, who may find themselves discouraged
and exhausted, as we certainly have, we say to you what we
say to each other: We have to keep going.
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* 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.
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.
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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.
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
Since 2012, Ryan H. James has
owned and operated James Law,
LLC, a solo-practice firm located
in White Oak, Pennsylvania. Ryan
is primarily a criminal trial and
appellate lawyer, practicing in
both state and federal courts. He
additionally represents lawyers
and judges facing disciplinary
complaints.
Stephanie and Ryan are both founding members of the
Allegheny Lawyers Initiative for Justice, a non-profit
organization committed to reforming Allegheny County's
criminal justice system.
Vol. 4, Issue 4 l For The Defense 9
Stephanie M. Noel is the owner
of the Law Offices of Stephanie
M. Noel, LLC, a criminal defense
law firm in Pittsburgh. Stephanie's
practice focuses exclusively on
litigation under Pennsylvania's
Post Conviction Relief Act and on
direct criminal appeals before the
Superior and Supreme Courts of
Pennsylvania. Prior to establishing
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
https://nxt-staging-books.s3.amazonaws.com/nxtbooks/PACDL/FORTHEDEFENSE_vol9_issue2_2024/src/He_Must_Not_Die_in_Prison_Noel_and_James.pdf https://www.stephanienoellaw.com/ https://www.stephanienoellaw.com/ https://rhjameslaw.com/ https://rhjameslaw.com/
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