Minimum mandatory sentence waived by judge in Pittsburgh heroin case

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James Lee has maintained his innocence all along.

The 24-year-old from Perry South has had steady employment for six years and is on the management track at a local baking company.

Although he grew up in a crime-ridden neighborhood, his family encouraged him to avoid drugs and violence. He had no criminal record. He has an infant daughter.

Still, Lee was stopped for reckless driving in August 2012 in Marshall-Shadeland, and Pittsburgh police say he threw 117 stamp bags of heroin out of his car as he was pulling over his silver Chevy Impala.

Lee, who had a license to carry a concealed firearm, also had a .40-caliber handgun in the car and more than $600 in cash.

He was charged with possession with intent to deliver heroin, and a jury in November found him guilty.

At sentencing Wednesday, assistant district attorney Lawrence Sachs asked the court to send Lee to prison under a mandatory minimum penalty in Pennsylvania for having more than 1 gram of heroin and for having a firearm in proximity to drugs being sold.

But Common Pleas Judge Beth A. Lazzara refused, saying a June U.S. Supreme Court decision makes Pennsylvania's sentencing scheme for mandatory penalties unconstitutional.

"I will not legislate from the bench," she said.

And even though the judge said she could still send Lee to prison based on individualized sentencing -- and that the maximum in his case was 15 years -- she, instead, gave him a break.

Judge Lazzara ordered him to serve 18 months on home electronic monitoring to be followed by five years of probation.

"I'm going to give you a chance," she said. "If you screw it up, all bets are off, and you're going to state prison."

In the U.S. Supreme Court decision, Alleyne v. United States, Justice Clarence Thomas wrote that mandatory minimum prison sentences are unconstitutional unless specific steps are taken at deliberations by the jury to make a finding, beyond a reasonable doubt, of the element of the crime that creates the increased, mandatory penalty.

For example, in the Lee case, 1 gram of heroin, under Pennsylvania law, triggers an automatic mandatory minimum prison term of two years.

The firearm combined with the heroin triggers another mandatory minimum of five years.

But, in Pennsylvania, the criminal statutes do not integrate those specific details as elements of the crime. That means, at least according to Judge Lazzara, no mechanism exists under Pennsylvania law that allows a jury to be asked such specific questions such as the quantity of a drug when making a determination of guilt or innocence.

Therefore, she continued, the Pennsylvania sentencing statute for mandatory penalties is unconstitutional.

Judge Lazzara said she believes that the issue needs to be addressed by both the Legislature and the appellate courts.

"The court simply cannot fix it itself," she said.

But Mr. Sachs told the court that the issue has been handled a couple different ways by his office since the Alleyne decision.

To ensure that the jury has the specific details that allow for the sentencing enhancement, his office has been amending individual criminal informations that charge a defendant and including the detailed mandatory sentencing provisions in those.

In other instances -- including in Lee's case -- the jury has been sent out to deliberate with what is called "a request for special findings" or additional questions for the jury to answer if it finds a defendant guilty of the underlying crimes.

In Lee's case, the jurors were asked both about the quantity of heroin he had and about the proximity of the gun. They answered affirmatively for both, and Mr. Sachs believed that meant Lee would be sentenced to the mandatory minimums.

But Judge Lazzara said Wednesday she would not have allowed the jury to consider the quantity of heroin or the location of the gun.

"Hindsight is 20/20," she said. "I believe this court made a mistake in sending out those interrogatories."

Mr. Sachs argued that as long as notice is provided to a defendant -- and the determination is made by a jury beyond a reasonable doubt -- Pennsylvania's mandatory minimum sentences can stand.

But defense attorney Kenneth Haber said state courts don't have authority to trump what the Supreme Court says.

"It's up to the Legislature to react to statutes that are unconstitutional," he said.

In Allegheny County alone, Judge Lazzara said, the Alleyne decision is being handled in three or four different ways.

"There are courtrooms in this building that are doing things entirely differently," she said.

That has prompted the Allegheny County district attorney's office to appeal at least one other criminal case in which the mandatory minimums were not applied. One notice of appeal has already been sent to the state Superior Court, and prosecutors plan to ask that it be transferred to the state Supreme Court to be heard alongside another case already pending from Chester County.

The office would not comment outside of that.

But in arguing the specifics of Lee's case, Mr. Sachs said he deserved prison, saying, "You can make a lot more money a lot faster slinging heroin than you can working [at a bakery] for $13 an hour."

He called Lee a "gun-toting drug dealer."

But Mr. Haber said his client has worked hard, continues to be an exemplary employee and while out on bond and electronic monitoring had no problems.

"He will build a future for himself, his child and his family," he said.

Doing that following a prison sentence, Mr. Haber said, would be "much more difficult, if not impossible."


Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard.

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