Possession v. Delivery

I was arrested with 8 grams of powder cocaine. My lawyer tells me that the case is a three to six year mandatory. I thought that only possession with the intent to deliver (pwid) carries a mandatory and knowing and intentional possession (k&i) does not carry a mandatory. I also thought that 8 grams is a one to two year mandatory?

When you are arrested, someone at the police department or the district attorney's office decides what your charges will be. Usually in an 8 gram case the district attorney's office is involved. You can be charged with anything that suits the district attorney, but at the preliminary hearing, the judge should determine what if any charges should proceed to trial.

In general, the district attorney only charges possession with the intent to deliver (pwid) in certain scenarios: 1. observed sales; 2. believed sales; 3. quantity; 4. social sharing. I have seen all of these many times.

Your situation is quantity. I get more questions about mandatory sentencing in regard to quantity then for any other type of possession with the intent to deliver (pwid) charge. In general, if the district attorney can show that the amount of narcotics with your possessed was too great for any single individual to consume, they can charge possession with the intent to deliver. At trial, I often see the district attorney call an expert witness to explain why they think large quantity equals possession with the intent to deliver.

In regard to the mandatory, you are correct: the mandatory only applies to possession with the intent to deliver (pwid) not knowing and intentional possession (k&i). Based on my experience and and based on the way you said that your lawyer told you it was a mandoatory, I am confident to say that with 8 grams, you have been charged with possession with the intent to deliver (pwid).

As far as the mandatory being three to six instead of one to three, that is because you have a prior conviction for possession with the intent to deliver. If you do not have a prior conviction, your lawyer is mistaken.

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Pennsylvania Mandatory Drug Sentencing

I have recently received a flurry of questions pertaining to mandatory minimum sentences in Pennsylvania in state court. Basically the questions all sound somewhat the same, "I am being charged with a mandatory drug case and I wonder if there is anyway that I can get around the mando?"

Two separate answers for this questions.

Often times, even in the worst cases, we can fight the case by attempting to "parse" the drugs as our defense. This is normally done as a bench trial, but I have done it in front of a jury. Basically, the argument is that while 500 grams of cocaine were recovered in the arrest, my client was only responsible for 1 gram of cocaine. If this argument works, my client would be found guilty, but of a non-mandatory amount. The key to this defense is to make certain that you will beat the conspiracy charge, because if you are found guilty of conspiracy in the case, all of the weight can be put on each person, so the mandatory will still apply.

The second answer to the question is by getting the client into the Intermediate Punishment Program. Different counties call this program different things. I have heard it called IP, IPP, even Treatment Court. In Philadelphia, everything is different, but basically, the end result of the program is the same. In IP, as I call, you must have some type of substance problem, even if it isn't the type of substance for which you were arrested. In some IP programs, you can even avoid a conviction altogether. IP may involve some custody, house arrest, work release, or inpatient, but can avoid huge mandatories. Also, there is a new program (2006?) called State IP. In State IP, you go up state for your sentence, but the sentence is drastocally reduced. State IP is great if you are looking at the 5-10 or 7-14 mando. Also, you usually are not eligible for any of these special programs if there is a gun involved in the instant case or if you were ever arrested for a violent crime involving a gun.

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