Drug and Gun Mandatory Sentencing Applies Even When the Firearm Does Not Work

In a post last week, this blog discussed the special statutory meaning of “close proximity” in Pennsylvania’s sentencing laws that requires a mandatory five year sentence for anyone convicted of selling drugs when, at the time of the offense, drugs and firearms were in the same residence.  This post addresses the recent case of Commonwealth v. Zortman which is currently pending in the Pennsylvania Supreme Court.

In Zortman, the defendant was pleaded guilty to possession of a controlled substance with intent to deliver, simple possession, possession of drug paraphernalia, and a substantive conspiracy charge.  At the hearing on defendant’s guilty plea and sentencing, the prosecution presented evidence that execution of a search warrant recovered marijuana from the kitchen of defendant’s home.  Officers also recovered a firearm from the bedroom.  The firearm was inoperable because it was missing its firing pin.  Ultimately, the trial court sentenced the defendant to probation because, although the court held that there was close proximity between the two items, the court reasoned that the statute applied only where the weapon in question functioned as a weapon.  Applying the earlier decision of Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973), the court held that the absence of the firing pin rendered the firearm so “defective or damaged that it had lost its initial characteristics as a firearm.”

The Superior Court reversed and sent the case back for resentencing under the mandatory enhancement.  The Superior Court looked to the language of the law which defined a firearm to include any weapon “designed” to expel a projectile by explosive means.  The Superior Court reasoned that firearms are designed to shoot bullets and, even though the defendant’s weapon could not physically fire a projectile under any circumstances, it was still a firearm based on the original designer’s intent.

Zortman is currently on appeal in the Supreme Court of Pennsylvania.  The only issue at that level is whether an inoperable weapon requires a mandatory sentence when found in conjunction with drugs for distribution.  The case was submitted to the Supreme Court Justices on September 15, 2010 and still awaits decision.

Although the circumstances in Zortman are unusual, they are not unique.  If you face charges that have a potential mandatory minimum sentences, it is important that you are represented by an attorney who will consider the effect of sentencing law on your case.  Defendants must understand that mandatory sentencing provisions are the law and if the factual circumstances make a mandatory minimum applicable, a judge cannot deny the Commonwealth’s request to apply it.  In some circumstances, such as this provision, the Commonwealth is not even required to notify a defendant of its intent to seek the mandatory sentence before pleading guilty or going to trial.  A defendant must have competent and conscientious representation to ensure they have ALL the information before making trial decisions.  You can read more about this sentencing law at our website.

Firearms and Drugs in the Same House or Apartment Requires a Five Year Mandatory Sentence Under Pennsylvania’s Drug and Gun Law

In 2004, Pennsylvania added a sentencing provision that increases penalties when drugs and weapons are used together. Generally, this provision was aimed at criminals who involved guns in their illegal sale of drugs. It requires a mandatory sentence of five years whenever a person is convicted of a drug offense and the Commonwealth demonstrates by a preponderance of the evidence that, at the time of the offense:

1) the convicted person had a firearm on their person or within their reach;

2) a co-conspirator of the convicted person had a firearm on their person or within their reach; or

3) a firearm was in “close proximity to the controlled substance.”

This statute requires a minimum sentence of five years total confinement and does not permit the court to exercise any discretion in whether or not to apply this mandatory minimum. In Pennsylvania, all sentence must be expressed in terms of maximum/minimum sentences. Therefore, any person sentenced under this enhancement must receive a minimum sentence of five to ten years, placing the decision to release the prisoner in the hands of the Pennsylvania Board of Probation and Parole.

In 2008, the Pennsylvania Superior Court interpreted this sentencing provision and defined “close proximity” as within the same residence.  In Commonwealth v. Sanes, the defendant was asleep in his girlfriend’s apartment when the authorities executed a search warrant.  In the same room where he was sleeping, authorities found cocaine lying on top of a clothes dresser.  After rousing the defendant and the other occupants of the apartment, the defendant told the police the apartment contained two guns:  the first was lawfully registered to his girlfriend and was kept in a box in the closet of their bedroom; the second was in a jacket pocket hung in the closet of another bedroom.  The defendant was found guilty of possession of a controlled substance, possession with intent to deliver a controlled substance, and unlawful possession of a weapon (because he was a convicted felon).  The sentencing judge applied the mandatory minimum sentence of five years because it found that the cocaine and the weapons were in “close proximity” to each other.

The Superior Court determined that the mandatory minimum was applicable.  Although the term “close proximity” was not defined in the statute, it had previously been used in the forfeiture context and case-law held that any money found in the same house as unlawfully possessed controlled substances was subject to forfeiture.  Reasoning that the forfeiture statute and the sentencing enhancement served similar purposes, the Superior Court held that all case-law interpreting “close proximity” for forfeiture purposes applied to the sentencing provision.

The practical implication of this ruling is having a gun in the same house where drugs are sold requires a judge to sentence to at least five to ten years incarceration.  It is important to understand that this sentencing provision does not require unlawful possession of a weapon; if a child is dealing drugs from the home where his father keeps his lawfully owned gun, that child is subject to the mandatory sentencing provision and must serve five years of incarceration.

Read the statute here.

Read the case here.


Pennsylvania Legislature Seeks to Expand the “Castle Doctrine”

On November 27, 2010, Govenor Rendell vetoed a bill that significantly altered self-defense law in Pennsylvania.  The bill, which easily passed both the Pennsylvania House and Senate, expanded the “castle doctrine” which permits citizens use deadly force in their homes or offices when presented with a threat of death or bodily injury without requiring an attempt to retreat.  This doctrine is called the “castle doctrine” because it is premised on the idea that a person’s home is their castle and the law should not require individuals to flee from intruders threatening them in their own home.  The proposed law expanded this rule to public areas with complete disregard for the theoretical basis for the doctrine.  By passing this bill, the Legislature has signed off on the use of deadly force without searching for safer alternatives. 

Governor Rendell vetoed the “stand your ground” legislation, stating, “The bill as passed encourages the use of deadly force, even when safe retreat is available, and advances a ‘shoot first, ask questions later’ mentality.  I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves.”

The use of deadly force is very fact specific.  Citizens of the Commonwealth of Pennsylvania have always had the right to self defense if faced with life threatening force, whether in one’s home or not.  The current law merely requires that, when in a public place, a potential shooter must attempt to avoid a fatal confrontation rather than run headlong into one.  The current law sufficiently protects individuals because it only impacts cases where there is no safe alternative to the use of deadly force.  It also limits the public’s exposure to the use of deadly force by requiring individuals to seek an alternative if available.

Governor Rendell’s decision to veto the bill was supported by many law enforcement groups throughout the state including the Pennsylvania State Police and the Pennsylvania District Attorneys’ Association.    However, when Republican Governor-elect Tom Corbett takes office next year, the legislature will likely reintroduce some form of this bill.

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