Apprendi

I was changed with Endagering the Welfare of a Child (EWOC). At my jury trial, the Judge put EWOC on the verdict sheet twice; once called "course of conduct," once called "no course of conduct." Why did the judge put the same charge twice.

In Pennsylvania, the sentencing guidelines use something called the Offense Gravity Score (OGS). The OGS is determined based on the the offense for which the person is being sentenced. Some charges have two seperate offense gravity scores depending on what the underlying act was under the statute. For example, EWOC has a different OGS if the endangering happened once or more than once. Therefore, the sentence would be higher if endangering happened more than once.

Traditionally, at trial, the judge would simply put EWOC on the verdict sheet and if the defendant was found guilty the JUDGE WOULD DECIDE whether the endangerment happened more than once. Suddenly along came a person named Apprendi and he said that he thought if the sentencing guidelines were effected based on a factual determination, he should have a right to have the jury decide not the judge.

In Apprendi v. New Jersey , 530 U.S. 466 (2000), the United States Supreme Court agreed. The Supremes said that if the type of underlying act changes the sentencing, the sentencing ramification, the defendant has the right to have a jury determine the exact act under the statute and the subsequent sentencing issues.

Therefore, in regard to your question, the jury gets to determine the facts that effect the OGS, not the judge.

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What is a detainer?

We get at least 10 calls or emails a week about detainers. People want to know everything from the practicality of getting a detainer lifted and some folks want to know all of the technical aspects involving detainers.

Basically, if you have a detainer, you cannot get out of jail by paying bail. You must instead get your detainer lifted by the judge who put you on probation, or by a judge assigned to supervise your probation. In order to get the detainer lifted, you must appear in front of this judge, often referred to as the 'back judge' and ask them to lift the detainer. This can be accomplished by having the attorney file an order for hearing and request that the case be scheduled sooner than later. Once you are before the judge, they judge will look to see if you have any violations of your probation or parole and then determine if they want to re-sentence you or if they want to continue your probation. Often, the process is much more complicated then what i have written above.

A more advanced answer is that you have an original case that you were either found guilty or plead guilty and you now have probation with that back judge. While you are on your probation, you pick up a new case, meaning that you get arrested on a new case while you are serving probation.

In general there are two types of violations to probation: technical and direct. A tech is like a dirty urine or failure to report. A direct is a new conviction. Therefore, if you have a new arrest you may not have any violation yet but potentially, you have a direct violation. Some folks argue that the new arrest itself is a technical violation. However, in Philadelphia some people seem to get arrested routinely and never convicted, so the sheer volume of arrests is too great to make this really stick in Philly. However, in the rest of the state, a new arrest is generally viewed as technical violation.

If you have a new arrest, most judges will look to see what your new arrest is for: homicide? possession of marijuana? possession with the intent to deliver? rape? Depending on that new charge, your criminal history, your bench warrant history, and the judge's own personality, the judge will decide whether to remove the detainer now, or wait until after to outcome of the new case.

We have tremendous success in getting detainers lifted. However, in my opinion, the single most important factor, is the judge's own personality. The first question I ask a client when they call about a detainer is the judge's name.

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