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Criminal defense attorneys will no doubt be pleased with the Pennsylvania Supreme Court’s take on a statute that imposed mandatory enhanced sentencing on people deemed to be “high-risk dangerous offenders.” The court on Friday upheld a lower court’s finding that the statute violated the procedural due process right of the defendant in Commonwealth v. Butler. The statute had placed the burden on defendants to prove they should not be considered in the high-risk dangerous category. “We note that … the legislature has attempted to shift the burden onto an offender to prove that he or she does not fall into a legislatively presumed category of offenders based upon some predicate circumstance. … The legislative scheme of placing the burden of proof on the offender [is] improper and violative of the procedural due process guarantees of the Fourteenth Amendment,” wrote Justice Stephen A. Zappala. Justice Ronald Castille and Justice Thomas Saylor each filed dissenting opinions. BURDEN OF PROOF The statute under scrutiny was 42 Pa. C.S. Section 9714, which imposes an enhanced mandatory sentence when a person is found to be a high-risk dangerous offender. To be classified as such, a defendant must have another previous conviction for a crime of violence within seven years of the date of commission of the present offense. The statutory scheme places the burden on the defendant to rebut the presumption that he or she falls into that category by clear and convincing evidence. If the defendant fails to rebut the presumption that he or she is a high-risk dangerous offender, the statute requires a minimum sentence of 10 years of total confinement. Under Section 9714, convicts are entitled to a high-risk dangerous offender hearing where the offender and the attorney for the commonwealth present evidence. The court must also consider 12 factors in determining whether the offender fits the criteria for enhanced sentencing. Among other things, the list of 12 factors includes the offender’s age, prior criminal record, whether there were multiple victims, any mental illness of the offender, and whether the offense included a display of unusual cruelty during the commission of the crime. BUTLER Damon Butler held a victim at gunpoint in February 1998 and demanded that the victim hand over his gold necklace and any money he had. After taking the victim’s necklace, Butler fled. Several days later, Butler’s victim spotted him in the same area and notified police. Butler was later convicted of robbery, theft, receiving stolen property, simple assault, reckless endangerment, possession of an instrument of crime, carrying a firearm without a license and possession of a firearm by a former convict, among other charges, in connection with the February incident. Because Butler had previously pled guilty to a charge of aggravated assault, he was eligible to be considered a high-risk dangerous offender. Accordingly, the commonwealth recommended the court apply 42 Pa. C.S. Section 9714(A)(1), also referred to as a “strike two” sentencing provision. That section provided for a minimum sentence of 10 years of confinement and also required a mandatory maximum sentence that was twice the mandatory minimum, for a sentence of 10 to 20 years. But the trial court refused to impose that sentence, instead sentencing Butler to five to 10 years on the robbery charge, with lesser concurrent sentences to run on the remaining charges. UNCONSTITUTIONAL PROVISIONS The trial court found Section 9714 unconstitutional, it said, on the grounds that it “impermissibly sets up the presumption that the offender is a high-risk dangerous offender, then places the burden of proof on the offender to rebut the presumption by clear and convincing evidence.” The court compared the lack of procedural safeguards in the statute to the Registration of Sexual Offenders Act, also known as “Megan’s Law,” which the superior court found unconstitutional in 1999′s Commonwealth v. Hayle. “In the [trial] court’s view, the burden of demonstrating that an offender is a high-risk dangerous offender must rest with the Commonwealth,” wrote Zappala. The commonwealth said that, unlike Megan’s Law, Section 9714 places the initial burden on the commonwealth to demonstrate that the offender was convicted of a “crime of violence” within the past seven years, before the presumption even becomes applicable. The prosecution, it argued, was also required to prove by a preponderance of evidence any aggravating factors that require a harsher sentence. Finally, the commonwealth asserted that Section 9714 also comported with due process because the existence of a required prior offense is a “straightforward issue susceptible of objective proof” and the risk of error in making the finding is “slight.” But Butler countered that the determination of whether a defendant is a high-risk dangerous offender is made without requiring the commonwealth to prove any of the 12 case-specific factors that the court must consider. “[Thus,] appellee argues that the ultimate judicial determination of whether an offender is a high-risk dangerous offender is neither straightforward nor susceptible of objective proof as it requires the court to apply a list of disparate factors in making its assessment,” wrote Zappala. The high court agreed with this reasoning. HEIGHTENED RISK OF ERROR Zappala pointed out that the court found in the 1999 case of Commonwealth v. Williams, a case involving Megan’s Law, that placing a burden of proof on an offender was unconstitutional. “We concluded the legislative scheme set forth in [Megan's Law] was similar to New Jersey’s sexually violent predator statute, which was found to be unconstitutional by the 3rd Circuit,” said Zappala. He also pointed out that Section 9712, the statute that imposed a five-year minimum sentence for crimes committed with a gun, was distinguished and upheld as constitutional by both the Pennsylvania and U.S. Supreme Courts. The problem presented by Section 9714 is the more freewheeling nature of a sentencing hearing coupled with many more factors to discern than mere gun possession, Zappala said. He quoted from Williams, where the court wrote, “Evidence that could be presented at the sexually violent predator proceeding may not have been presented at trial and will largely consist of testimony of the offender and the victim. Resolution of issues regarding the evidence … are not subject to the rules of evidence … and the court is under a time restriction to conduct that proceeding. Accordingly, the risk of an error … is far greater than [in cases involving the Section 9712 five-year gun minimum]. Since the court’s consideration is likely to be outcome-determinative, the court said, the commonwealth “must be required to affirmatively convince the court of such facts. … We conclude that the trial court properly found that Section 9714 violated Appellee’s procedural due process rights.” DISSENTS Saylor reminded the court that it is permissible for burdens of proof to be “relaxed” during sentencing and that the constitutional requirements of a jury trial and proof beyond a reasonable doubt by the prosecution apply to the substantive elements of a criminal offense. “In general, the constitutionality of a penalty enhancement provision under the Due Process Clause of the Fourteenth Amendment to the [U.S.] Constitution turns upon whether the proof required for invoking the enhancement is deemed an element of the underlying offense or a sentencing factor,” said Saylor. “Historically, recidivism has been treated as a sentencing factor, relating not to the commission of the offense, but to punishment.” He noted that other jurisdictions have upheld provisions similar to Section 9714 on that basis. “While Section 9714 increases the maximum punishment for a specified class of crimes involving violence, it does so only upon proof of a prior conviction,” said Saylor. “In this respect, Section 9714, unlike Megan’s Law, functions as a recidivist sentencing provision, which is permissible under current federal jurisprudence. Accordingly, I would hold that Section 9714 comports with federal due process guarantees.” Justice Castille joined in the dissent and submitted a one-line dissent of his own, reiterating his dissent in the Williams case involving Megan’s Law last year.

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