No More Mandatory Minimun Prison Sentences for Guns and Drugs

In the 1980s and early 1990s firearm related murders and the war against drugs were sweeping across the country. These social problems prompted Pennsylvania’s legislature to pass mandatory minimum criminal sentencing statutes. A mandatory minimum prison sentence becomes the statutorily mandated minimum prison time to which a sentencing judge must sentence a defendant convicted of committing certain criminal offenses. In passing these laws, Pennsylvania’s legislature took away the judge’s sentencing discretion, asserting that it better knew what was good for both the community and the specific defendant sitting before the sentencing court.

Pennsylvania’s mandatory minimum sentencing provisions apply in cases when a defendant is found guilty of 1) possessing or selling more than a certain amount or weight of any illegal drug, 2) uses or possesses a gun during drug selling or committing other types of crimes, or 3) sexually assaulting a victim below certain ages. Additional gun and drug mandatory minimum sentencing enhancements apply if a defendant possessed these items in close proximity to schools.

Pennsylvania’s mandatory minimum sentencing scheme require the judge, not jury, to increase the mandatory minimum aspect of a felon’s sentence if certain conditions were met. The judge, not the jury, determine if the conditions precedent were met, in a separate sentencing hearing, and the prosecutor’s burden of proof is by a “preponderance of the evidence,” not beyond a reasonable doubt.

As of October 2014, these mandatory minimum sentence provisions are now unconstitutional. In 2013 the United States Supreme Court ruled that in every criminal case, the jury, not judge, must determine beyond a reasonable doubt every element upon which a state or federal defendant’s sentence is based. The Alleyne case states Pennsylvania’s sentencing process in mandatory minimum cases violates a defendant’s constitutional right to a jury trial. The court states that such procedures are unconstitutional because the judge, not a jury, on a lower burden of proof, employs evidence not weighed by the jury, to increase a defendant’s mandatory minimum prison sentence.

In Commonwealth vs. Newman, 99 A.3d 86 (August 2014), and Commonwealth v. Valentine, 2014 PA Lexus 3420 (October 3, 2014), Pennsylvania’s intermediate appellate court, addressed Alleyne as it applied to Pennsylvania’s drug and gun mandatory minimum sentencing procedures, finding them unconstitutional.

In each case, the District Attorney’s Office submitted the to the jury the facts comprising the legal basis to trigger the mandatory minimum sentences. (This was in response to Alleyne’s dictates of jury, not judge, deciding sentencing facts.)  For example, in the gun and drug cases, the jury was given a questionnaire asking if the defendant specifically possessed a firearm or sold a certain amount of drugs. The jury would then be asked if the defendant possessed that firearm in the course of selling drugs or within so many feet of a school. As the jury on the verdict sheet answered yes to these questions, the Commonwealth sought the court, not the jury, to impose the mandatory minimum sentencing provisions.

Valentine and Newman objected to this procedure. The defendants objected to the judge instructing and allowing the jury to make factual findings that the legislature specifically intended the court, not the jury, to make. They argued, and Superior Court agree, that the mandatory minimum sentencing provisions involving guns were unconstitutional pursuant to Alleyne because it required the judge, not the jury, to make the decision of guilty of the aggravating facts warranting imposition of an otherwise high sentence.

The courts also ruled that because the legislature commanded the judge to make these findings (now an impermissible process after Alleyne) the judge could not correct that process by having the jury determine the factual issues upon with the higher sentence cold be based. The courts ruled that in allowing the jury to determine the presence of aggravating facts, the judge was abdicating his judicial function, regardless of whether such is now illegal, to the jury. This too was impermissible.

Because Pennsylvania’s legislature specifically required the sentencing judge to make certain findings of fact, to a lower evidentiary burden of proof then the Alleyne, and judges can not abdicate his/her legislative responsibilities accordingly, the entire statutory scheme was determined to be unconstitutional.

This is a significant win for many defendants. While there are many sentencing provisions that will allow for sentencing enhancements, the elimination of mandatory minimum sentence allows for greater judicial discretion for the judges assigned to handle the case. Please call me to discuss your matter

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Employee Assistance Drug Programs — Be Careful What You Disclose

This blog shall focus on the new phenomenon of employment assistance (EAP”) programs. Employee/professionals are introduced to these programs in the context of positive drug tests in the work place. The extent of self-disclosure and participation within these programs has become a source of information for licensing board investigators and PHMP programs. Participant disclosure in EAPs of drug use or mental health history could be discovered by board investigators and backfire against the professional.

Initially, some employers require the employee/licensee to report to their licensing board the positive drug test result and enrollment in the EAP.  This Blog especially applies to you.  Board investigators will seek out and secure release of your EAP case worker files, notes, and treatment facility disclosures even if there is no licensure reporting requirement.  Do not assume your board will not discover your EAP enrollment.

As such, the issue is to what extent must you disclosure to a EAP case worker.  What is complete self disclosure? What is complete? Does an employee need to release to the EAP: 1)medical records, 2) psychological or psychiatric treatment records, or 3) provide full self disclosure of prior recreational or adolescent drug use? Disclosure versus signing medical authorizations are two separate things. Never sign medical releases for any, any, any, any prior treatment history.

Sometimes, the EAP program is administered at a local treatment? To whom are you the employee/licensee disclosing prior drug use? What are treatment facilities’ legal obligations of disclosure to the state? Some treatment facilities, if they know a EAP participant is a licensed professional, will administer a different treatment program and protocol that are aligned with the PHMP. Here especially, do not sign blanket medical releases.  Also, make sure all disclosure, if you make them, are completely confidential with no right of dissemination by the EAP (within the treatment facility) to any one.

The professional should not lightly enter a EAP. The professional should not voluntarily disclose or sign releases for medical, psychiatric, or drug use histories in these programs. Again, what is complete and to whom is the licensee disclosing a history? All information given to the EAP will be available to the professional board investigator. Thereafter, PHMP caseworkers will seek to secure statements and information in EAP case worker possession. The PHMP investigator and PNAP caseworker will seek to corroborate facts given to them versus the EAP.

Consequently, disclosure in an EAP of historical drug, alcohol, or medical histories not necessary to EAP participation and employment retention may result in further treatment and license requirements. One doesn’t necessarily have to “drink the Kool-Aid” or be “all in” in the EAP program to maintain employment. It is the factual disclosures in the EAP program that PHMP caseworkers will used against the licensee in the future.

As my prior blogs state, the licensee must be very careful about the decision to go enter the PHMP. Don’t be scared into the program by the caseworker and the various letters of concern that they send out. Unless one is ready willing and able to admit a drug or alcohol addiction which has rendered you incapable of practicing your profession safely, statements to PHMP, PMP, PNAP, PHARC or any other licensing board drug and alcohol investigator should be severely curtailed.

Attempting to save one’s job by going into an EAP as a result of violating drug and alcohol procedures, protocols (of which the employment-based disciplinary rules, procedures, and manuals are ripe with regulations regarding the use of drugs) could end up causing you the professional their license. Call me to discuss.

Admitting To Unethical Behavior Without Counsel Will Cost You Your Professional License.

The Commonwealth Court, on November 6, 2014, handed down Van Ness v. Bureau of Occupational Affairs. This decision is a text book discussion of specific conduct upon which Pennsylvania’s licensing boards will base their decision to strip a licensee of their professional license. A guilty plea or admitting to an employer or Board investigator that one has engaged in fraudulent billing services in the course employment will be the basis for disciplinary action.

Van Ness worked as a independent contractor, physical therapist for a rehabilitation entity. He provided physical therapy to special education students on an as needed basis. Unfortunately, Van Ness both over billed and did not keep proper track of his time and effort for the patients/clients for whom he worked and then incorrectly and illegally billed for his services. Upon being confronted with over 400 hours of over billed services, constituting 600-700 entries of services rendered, totaling over $16,000, Van Ness admitted to his employer/contractor that he did not do the work and he needed the money. This was an admission of engaging in fraud based upon greed.

Upon being reported to the Physical Therapy Board and attending a hearing, the hearing examiner found that Van Ness participated in the use of a communication containing false, fraudulent, deceptive or unfair statements when he submitted fraudulent bills for payment of services he did not render. Although there was a finding for a disciplinary basis, 49 PA. Code section 42.24(5), the hearing examiner suspended Van Ness’s license for six months. The Commonwealth sought a complete license revocation.

The PT Board reviewed the hearing officer’s finding of facts and conclusions of law, determined that every intentional entry of false information for billing records constituted a separate serious offense each of which demeaned the reputation of the healthcare system and medical practitioners. Concluding that Van Ness engaged in this type of behavior consistently for a four month period purely for greed, “placing his desire for financial gain over the treatment needs of special needs children for whom he responsible, “the board rejected the six-month suspension suggested by the hearing officer and imposed a five-year license revocation.

Van Ness appealed arguing that the PT Board did not consider his post incident rehabilitation and consistent legal conduct acting as an occupational therapist with out further incident. The Commonwealth Court determined that the Board was fully within its authority to enforce a five-year license suspension based upon a code of ethics violation. The Court did not differentiate between an ethics violation or criminal charges to which Van Ness could have been subject had there been a criminal investigation.

The import of this case is significant. Initially, do not make any admissions to an employer, contractor, or state investigator of any type of billing irregularities. Van Ness was not criminally charged. He did not enter into any ARD program or guilty plea for which he was subject to a conviction and other disciplinary conduct. There was no evidence in the record of complaints by occupational therapy clients of service not being rendered. There was no forensic testimony of billing code violations, types of treatment or services not rendered compared to the actual services rendered and incorrect billing codes suggested, or any other evidence in the case. The only evidence was his own admission.

Apparently the entire disciplinary action was predicated upon Van Ness’ own words. His admission to culpable ethical breaches for whatever reason, cathartic or not, doomed his case. Any admission to this type of criminal behavior in the current enforcement atmosphere of heightened sensitivity to Medicare/Medicaid fraud schemes creates an almost insurmountable suggestion of future disciplinary action. Contacting counsel to address how to proceed with any type of state-based investigation, employment related inquiry, or work related discipline is important. Unfortunately for Van Ness he did not do that. Please call me to discuss your case.

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