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.

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