-: SJC 13254 Commonwealth V. Hubert L. Smith
and SJS 13253 Commonwealth V. Frank DeBenedetto.
-: Okay, Attorney Campbell.
-: Good morning, and may it please the court,
Kalin Campbell on behalf of the Commonwealth.
I am in the unusual position today
to be both the appellant in one case
and the appellee in the other combined case.
So I'm asking you to do two different things.
The first is as to Mr. Smith,
to reverse the allowance of his post-conviction motion.
And the second is as to Mr. DeBenedetto,
I'm asking to affirm....
The denial of his post-conviction motion.
Both present the same legal question,
which is whether locked pleas are constitutional,
but with-
Justice Cypher: Well, do they really?
I mean, isn't the first one that this is a done thing
and now we- we're into a different situation?
We're not in that- we're not in the plea package actually,
isn't that true?
Kalin Campbell: Correct. I think that-
-: For both of them, they're not in the plea package
because Correct the condition didn't happen.
Kalin Campbell: Correct.
And I- I believe that they show sort of...
You're right.
I think at the- at the most basic level,
they present a question,
which is whether locked pleas are constitutional.
how that question applies to different factual scenarios.
I think both are in different places.
I would agree with you there.
With the court's permission though, briefly,
before I get to that issue,
I would like to address the issues
raised in Mr. Smith's appeal,
which confer- which concern the timeframe
and the deadline for filing gatekeeper petitions.
I- I disagree with my sister
that a rigid application of 30 days should apply.
I- I don't believe it finds support
in any of the appellate rules,
any of the rules of criminal procedure
or any case law that it says.
Justice Cypher: Well if 30 days
is good enough for the defendant under mains,
why isn't it good enough for the Commonwealth?
Kalin Campbell: I'm not saying
that the 30 day deadline in and of itself
is- is problematic.
I mean, I- I do argue that it should be extended
because, for everybody, not just a defendant.
I think-
-: Why?
Kalin Campbell: All parties...
because their 30 day deadline, if you look at mains,
it references rule four,
which is just referencing filing a notice of appeal,
which is a single piece of paper.
A gatekeeper petition is a substantive pleading
that could have a devastating impact
on the further litigation of the case.
-: [Justice Wendlandt] So what should be the deadline?
Kalin Campbell: I think a 30 day deadline
with recognition that if there is an extension for time,
that that extension for time can be granted.
I think it's just the rigid application of that 30 days.
And if you don't do it within 30 days, then you're...
Justice Cypher: But it's the note.
It's- it's- it's the...
So you filed a notice of appeal?
Kalin Campbell: Correct.
-: And a defendant arguably can file
a notice of appeal right away.
Kalin Campbell: Correct.
-: And then have the 30 days to say, I need another,
you know, I need more time to file my petition.
Kalin Campbell: Correct.
And- and I think that, that could be what this court says.
I think the confusion, at least on- on my part,
came from the practice that
I believed that the Single Justice preferred,
which was not to file a motion for an extension of time
or a place keeper petition,
but to file a petition
with a motion to accept it as timely filed.
And if you look in the past 11 and a half years,
I- I've done that.
Justice Cypher: (inaudible) they come.
-: Almost 20 times.
And- and this case,
I- I didn't expect that it would be a problem
given the notices of appeal that were filed
and the express communications I had with defense counsel
as to the reasons why I- I needed the additional time,
which was to obtain the transcripts
because I was not the original prosecutor
handling the motion.
But I think this is a good opportunity,
as it relates to generally the good cause standard
because when you look at both the rules themselves,
the report's notes to the rules,
and the case law,
there isn't really a good articulation
as to what the good cause standard is.
There is-
-: [Justice Wendlandt] As sort of
garden variety miscommunication is not usually good cause.
I think that that's clear.
-: I- I- I don't be...
Under the case law, I don't believe that that's clear.
-: [Justice Wendlandt] What case stands for the proposition
that garden variety miscommunication is good cause?
-: I- I don't think there's any case
that states that it isn't.
I- I think if you look at the cases that do exist,
it largely is if
the Commonwealth offers no explanation as to the-
Justice Cypher: The other problem...
I mean, I- I understand the Covid problem
and I understand one of the other ones,
but the problem in which the assistant DA says use,
and I did, and you check a couple times,
you're still in the same office.
So you have to own that mistake.
-: And- and I do.
I- I- I do.
I think if you're looking, you know,
the good cause standard,
even the silver standard that's employed,
talks about unusual circumstances.
I believe that that falls
into the category of an unusual circumstance.
And so-
Justice Cypher: What does?
The miscommunication between you and your...
-: I believe so, yes.
-: But you're still the DA.
Kalin Campbell: I understand that. I understand that.
And I think, you know, other than it happened,
I own that it happened.
I don't think it should preclude the Commonwealth
where there is a substantial issue such as this one.
From- from going forward.
And to support that, I would rely on the cases in my brief,
which talk about this even in cases
where the Commonwealth has offered no justification at all.
Justice Cypher: So let's talk about
the substantial issue in Smith.
Kalin Campbell: Certainly.
-: How does- how- how would this not violate
double jeopardy at this point?
-: I don't believe it would.
If you look at the cases that discuss double jeopardy,
specifically if you look at a case like Lie or Slaka,
there is a much longer period of inaction,
Also, if you look at Commonwealth V. Sanchez.
Justice Cypher: But he's been, he was re-sentenced
and paroled.
Kalin Campbell: Absolutely. But if-
Justice Cypher: So he can't be sentenced again.
Kalin Campbell: He absolutely can be sentenced again.
if you look at...
Yes, at Commonwealth V. Sanchez.
In Commonwealth V. Sanchez,
there was a similar reduction under the verdict
under Rule 25 B2.
The Commonwealth filed a notice of appeal.
There was a re-sentencing.
Justice Gaziano: I guess the issue is whether
or not the- the- the sentence is
so- so to speak crystallized,
because in Sanchez there's a notice of appeal.
So in that case there's no-
there's- there's less of an expectation of finality.
Here there's a notice of appeal,
but a missed deadline on the gatekeeper.
I think that's the distinction
at which it's argued in this case versus Sanchez.
Correct?
Kalin Campbell: Correct.
But I think if you look at Sanchez,
it- it talks about the defendant being on notice.
Justice Gaziano: Right.
-: That this isn't a-
Justice Gaziano: So the defendant's on notice.
Kalin Campbell: Correct.
-: After he wins the motion for new trial,
he waits his 30 days. Kalin Campbell: Correct.
-: You don't file.
He says, great.
Kalin Campbell: - I don't believe so,
because he...
I think it's more complicated on that,
given the facts, right?
So there's a June order, Judge Sanders...
Justice Gaziano: But we're talk...
All right go in the defendant's position.
It's the whole issue of whether or not the sentence...
The expectation of finality
based upon a missed deadline essentially.
Kalin Campbell: Absolutely.
And I think if you look at the case law,
specifically, if you look at the Lye case,
this- in that case,
the Commonwealth didn't take action for 16 years
and it was an unexplained 16 year period of inaction.
Justice Gaziano: An- and I get
the disparity that we're talking about in mains in 30 days,
because defendants can just file another petition.
Kalin Campbell: Correct.
Justice Gaziano: But....
Kalin Campbell: Correct.
Justice Gaziano: And be that may,
you don't have double jeopardy rights,
the defendant does.
Kalin Campbell: We don't.
But I don't believe if you're looking at double jeopardy
and specifically fundamental unfairness,
I- I think if you have two notices of appeal,
if you have specific articulation
that we are pursuing a gatekeeper petition,
we're just waiting on a transcript,
I don't believe that crystallization has occurred
where there are these express communications.
Justice Cypher: But doesn't the crystallization,
even though there's communication
between the DA and the defense,
at some point something has to happen on the record,
in both courts, so that the courts know,
or- or there the courts would know
that this was in this state.
Kalin Campbell: I- that's
where I- I think that there's confusion in the case law
because it's unclear.
I think typically a notice of appeal
would serve that purpose.
Like it- as it did in Sanchez,
as it does in countless other cases.
Justice Cypher: We get a ton of
notices of appeal that don't go anywhere.
-: I understand that.
I understand that.
I think there's a difference here
where there's a notice of appeal
and express communication as to,
I need the transcript,
I'm waiting for the transcript.
Now will I own that it would've been more
proper for me to have filed a motion to- to stay
or a placeholder motion?
Absolutely.
But again, I'm relying upon my 11 years of practice
with the single justice
in which they stated that the preference
was to file it with a motion for a timely filed.
And that has been held
to excuse missed deadlines in the past
as it relates to I believe the Commonwealth
and the defendant.
So- so I would rely upon that
as to why it doesn't violate double jeopardy.
I think it's certainly different than Lye,
in which there's a 16 year unexplained absence.
I- I think it's even different from Salafka
in which it's a year after the sentence is imposed
and the Commonwealth with no explanation
then goes to try to change the sentence
after the defendant had already
served the committed portion of his sentence.
And I would point to Sanchez
in which it says the defendant's custodial status,
because in Sanchez too,
he had been resentenced and released.
There's no, in terms of the double jeopardy analysis,
no bearing on the double jeopardy analysis.
So I- I would
point to those three cases in combination.
Pointing to though the constitutional issue,
because I see I have five minutes and 40 seconds left.
You know, there's really a difference in framing
what the issue is between myself and both of my sisters.
And they point to Lafler and Fry and say,
Lafler and Fry stand for the proposition
that a trial doesn't cure
any defect in the plea bargaining process.
I don't believe that that's precisely the holding of
Lafler and Fry.
Lafler and Fry stand for the fact
that a defendant is entitled to effective representation,
which he and arguably has a constitutional right to.
And if he gets that during a plea bargaining process,
then the remedy is for the plea offer to be offered again.
Here, there is no right to the plea offer itself.
And what the defendants are challenging
is the constitutionality of the plea offer itself.
That changes the analysis
and- and really makes Lafler and Fry-
-: [Justice Wendlandt] Well...
Justice Gaziano: I'm- go ahead.
-: [Justice Wendlandt] Sorry, go ahead.
Justice Gaziano: No, please go ahead.
-: [Justice Wendlandt] I- I mean aren't they...
I- as I understand, defendants arguments,
is that once the prosecutor decides
to engage in the plea bargain process,
that that process needs to be fundamentally fair.
Kalin Campbell: Yes. And I would-
-: [Justice Wendlandt] What they're saying, is that
when you make it impossible for me to accept the plea,
unless I coerce or convince my co-defendant
to also accept it, that that's fundamentally unfair.
Kalin Campbell: Correct.
And I don't believe if you look at it
under a traditional due process type of analysis,
that it is fundamentally unfair.
Because typically under a due process analysis,
you just ask whether there is a rational basis
for the action that is occurring.
And here there is a rational basis,
plea bargaining is recognized at- as a-
there's a mutuality between the parties.
A defendant is giving up rights
and the commonwealth is making a charge concession.
The Commonwealth is typically making a charge concession
in order to gain a conviction or avoid trial.
But if you have two co-defendants avoiding trial,
that doesn't exist unless they both plead guilty.
I'd say that in itself is a rational basis
that supports that it's not fundamentally unfair.
Also, there's nothing in the record,
and I think this is where Mr. Smith and me-
Mr. DeBenedetto are different.
There's nothing in the record
that they were precluded from pleaing generally,
they could have plead to the indictment.
Mr. DeBenedetto could have offered a plea
to second degree murder.
There's nothing to say that they couldn't have engaged
in a different type of plea negotiation.
And there's also nothing to say
that a conditional offer generally is something
that isn't permissible under the law.
I think fundamental fairness contemplates,
as it generally does in- in a constitutional analysis,
that it's not based on some impermissible classification.
That it's not based on a defendant
choosing to exercise his rights.
And certainly here
where there's a rational basis that I've just articulated,
it- it would pass constitutional muster.
I think it- it's also interesting to say,
if you're thinking of fundamental fairness,
that a defendant could come to a prosecutor
and a prosecutor could just say no,
and there's no problem with that.
But if a prosecutor does say, sure,
but it has to have this condition,
that that wouldn't pass constitutional muster.
Justice Cypher: And I suppose,
one of my questions about this,
is that as I understood that original package
approach in this case, in Smith's case.
It was a good offer up until the close of evidence.
Correct?
Kalin Campbell: Correct.
That's what this court has found.
-: But that point, that offer wasn't there anymore.
Kalin Campbell: Correct.
And this court has held,
by the time that he attempted to accept the offer,
the offer didn't make sense.
-: But that's Smith.
And the co-defendant got to plead,
but because of the question from the jury.
but that was a different situ...
That was not under this package deal, right?
-: No, it was not under the package deal.
-: So- so there was no package deal in place
at the moment that the defendant tried to take it.
Is that true?
Kalin Campbell: Correct.
Correct.
And- and I will say Smith is unusual given the age,
given the amount that we know
about the plea bargaining process.
Both because of
what happened in the trial transcript itself,
but also immediately there was a motion for new trial
where testimony was taken,
where both the trial prosecutor
and the defense counsel testified as to
what had happened.
And I think that when you look at that testimony,
it really bears the- the danger
in- in a loose art articulation as to what an offer is
because, you know,
this court has already held that there was an offer.
But if you look at
what the testimony actually is from ADA Monday,
it's- he's approached and he says,
I won't even consider an offer unless it's both of you.
I don't know how that transforms
into an offer for purposes of specific performance,
because there really aren't any terms, right?
There's a lobby conference in which the judge says,
what's it gonna take to plea?
And Monday, ADA Monday again says something akin to,
it needs to be both of them,
and it would have to be something like second degree murder.
So I- I think that shows sort of the looseness
with which these plea bargaining could happen.
Mr. DeBenedetto was in a different posture than Mr. Smith.
But again, I don't think there's any showing of acceptance
or trying to accept, which is problematic.
I- I also think that if you're looking at
specific performance for both defendants,
there's a problem,
because neither were ever offered a standalone plea.
And that's where it gets to, again,
to bring it back to the fundamental fairness,
where you have two defendants
who are the more culpable of the pair.
A- a package plea offer
is giving them maybe more of a charge concession
than they would've otherwise got.
Maybe more of a charge concession
than they would've got if they were a standalone defendant,
which in both of these cases are horrible on their facts
and- and- and straight first degree murder.
So- so the incentive for the commonwealth to plea it,
there would have to be a concession from a defendant.
I have five seconds left.
I- I'm happy to answer any questions
that the panel may have.
Otherwise, I- I will rest on my brief.
Thank you.
-: [Justice Wendlandt] Nicely done.
(laughter)
-: [Chief Justice Budd] Okay, Attorney Mankin.
-: Good morning.
May it please the court, Attorney Michelle Mankin
on behalf of Hubert Smith,
who is present in the courtroom,
having received a reduced sentence
and gone before the parole board,
obtained a positive vote and achieved release.
With the court's permission,
since counsel for DeBenedetto
and I are splitting our argument time,
I intend to focus my argument on the timing question.
And Attorney Greenberg will-
Justice Cypher: I'm sorry, I couldn't hear that.
Which question?
-: Of the timing question.
Justice Cypher: Okay, thank you.
-: The threshold determination of
whether the Commonwealths appeal should be dismissed
and Attorney Greenberg will focus on the merits issue,
that's comment to both appeals.
But I will take just a moment,
since the facts of
Hubert Smith's locked plea were just discussed
to clarify a few things.
One, it's absolutely clear on the record,
that Mr. Smith tried to accept the
plea offer multiple times.
Justice Cypher: But wasn't that
after the evidence closed?
Michelle Mankin: No, it was not.
Justice Cypher: When was it?
Michelle Mankin: So he-
he approached the plea discussions.
Justice Cypher: Oh I see, I see.
So you mean when the-
when the co-defendant wouldn't agree to it.
-: That's right, that's right?
Justice Cypher: I get it.
-: And he did make motions, I believe twice,
to the trial judge
to allow him to plead guilty to second degree murder.
And he was forced to stand trial.
The- the plea that occurred
happened after the conclusion of the evidence.
So I think that's clear.
So with regard to the timing issue,
my sister started her argument
by suggesting that there shouldn't be a rigid application
of the main's rule.
And by that I understood her to mean that there-
that this court should have discretion
to allow enlargements in the interest of justice.
So, what I think is really important to recognize
is that if there has been a reduction in sentence
or reduction in verdict,
if the time is going to be alar- enlarged,
there is a potential due process problem bubbling
because the longer the defendant
is serving his new sentence,
the more his interest in that sentence crystallizes.
Now this is different from the double jeopardy issue,
and it's important to clarify.
Under- under the law and under the rules,
when the time to appeal has passed,
the conviction is final,
then the double jeopardy issue arises.
You cannot impose a new sentence
after the expiration of that period.
So that's an issue in this case
because nothing that the Commonwealth did
halted the finalization of the judgment.
And I will point out that to this day,
the Commonwealth never sought a stay.
Never stout- sought to stop the prejudice
from accruing to Mr. Smith.
Even after it was clearly on notice of
what was happening.
So if there is going to be an enlargement of time,
that may avoid the double jeopardy problem,
but it won't avoid the due process problem.
And it is-
Justice Cypher: Well, even if we said,
you know, this is a tight- timely- timeframe
and we need something new,
it still would be something for future cases,
not past cases.
Michelle Mankin: Absolutely. That's true.
Justice Cypher: Is that right?
-: That's true.
So I'm just sort of speaking prospectively,
it's clear that in this case,
Mr. Smith's interest in repose crystallized
at the expiration of the 30 days.
And what's interesting about the Commonwealths pos-
-: [Justice Wendlandt] Well, can I just push back on that?
I mean, so the Commonwealth filed a notice of appeal
after the post-conviction motion was allowed in June 2021.
Then there was the reduction to the murder two.
And again, the Commonwealth files a notice of appeal.
Then there was the resentencing that happened in September.
And again,
the Commonwealth provides notice through an email saying,
hey, I'm just waiting for the transcript.
Why given two notices of appeal and an email saying,
we intend to appeal this whole post-conviction thing
that happens after your 1994 conviction,
why isn't that enough to put the defendant on notice
that to the extent
he's intending to crystallize anything in his mind?
It's subject to the clear intent
of the commonwealth to appeal this whole thing.
-: So I have a couple responses
and- and- and one was what I was about to get to,
but- but one,
I'll point the court to Commonwealth versus Bouvier,
which embodies a pretty intuitive principle,
that it doesn't matter what the Commonwealth intends to do,
they have to actually take action to make it happen.
-: [Justice Wendlandt] Well, it-
is it that they have to take action
or that the defendant has to be put on notice?
-: They have to take action.
-: [Justice Wendlandt] Because that would
notify the defendant.
Or wh- why is the act...
What- what action does the Commonwealth have to take?
I- I am not suggesting that the Commonwealth
took the actions that were appropriate,
but what in your mind would be enough.
-: A- a motion to enlarge.
A motion to stay.
Anything.
-: [Justice Wendlandt] And what would that
accomplish for the defendant
that wasn't accomplished by the way
the Commonwealth did it here?
-: it has the actual effect of halting the proceedings.
Justice Cypher: And you would've been able to
file a motion to an opposition.
Michelle Mankin: I could have filed- he could-
Justice Cypher: If he- if that were filed,
you could have...
The defense would've a chance to file an opposition.
Is that right?
-: That is part of- that is part of the equation.
But the other is that- that
if the Commonwealth changes its mind....
I mean, bear in mind that- that
there was a change of leadership
in the district attorney's office in this time period.
And months and months went by with no communication,
between September and January
when the parole hearing took place.
And Mr. Smith, who is facing the decision of
whether to see the parole board,
which was a very taxing process for him,
needs to know- he needs to know officially
and- and what I was gonna say-
Justice Gaziano: The- the stay would've
put the parole board on notice as well.
Michelle Mankin: Absolutely.
And all of the-
Justice Gaziano: So it wouldn't have gone through this-
Em- em- could have been an empty process.
Michelle Mankin: Absolutely, for everybody.
It's a tremendous expenditure of resources
on everybody's part.
Justice Gaziano: And- and I don't want to...
Have you answering Justice Wendlant's question?
Michelle Mankin: So the- the commonwealth,
the- what the commonwealth's position
and what you're suggesting,
that they have this idea, that-
-: [Justice Wendlandt] I'm just asking questions.
I'm not suggesting anything.
Michelle Mankin: They have this idea
that they're gonna go forward.
What it ignores is that those rules are-
that allow for that avenue are completely discretionary.
So their argument takes shelter in the presumption
that they're going to be allowed in enlargement
and they're going to be allowed permission to appeal.
And at the same time, simultaneously suggesting
that Mr. Smith should not take solace,
should not take shelter
or rely upon the rules that speak with definiteness.
And, you know, the US Supreme Court has emphasized,
and it should go without saying that the-
one of the primary purposes of these rules
that set these deadlines,
is to put the defendant on notice.
Justice Gaziano: I- I thought you-
Michelle Mankin: That's over.
Justice Gaziano: I thought you agreed
that the good cause standard is applicable.
-: I- I- I do think that
the good cause standard is probably,
as opposed to the a- a- as opposed to the lesser standard.
I think they have to...
But but no, all of the commonwealth's excuses,
even the good ones, and we argue don't-
Justice Gaziano: Okay but like,
lets- you're- you're- you're not answer my question.
It's applicable, correct?
Michelle Mankin: It's applicable.
-: All right. Let me ask you a different question.
Due process, double jeopardy.
Obviously the Commonwealth doesn't have those rights,
the defendant does.
But is there, in your mind,
is there a way a defendant can forfeit the right
by an untimely filing of a- of a gatekeeper petition?
-: Forfeit the right to a gatekeeper petition
by not timely filing?
-: Right.
Michelle Mankin: Yes.
And I think that that happens all the time.
I think that- that gatekeeper petitions-
-: Just file, don't you just file another one?
-: I'm sorry?
File another gatekeeper petition?
-: Right.
-: After the expiration of the time?
I mean, it'll be denied on the grounds that-
Justice Gaziano: And we- we had this,
we had this below and I had asked for examples.
Michelle Mankin: Yes, and I- and I provided,
I believe five examples.
And there's also the consequence to the defendant of
what happens in federal court...
Justice Gaziano: I think in- in all those cases,
the court has said, it wasn't time we filed on the mains,
but anyway, in- in-
-: And also, it-
Justice Gaziano: And reaches and reaches the merit.
-: Merit. -: Correct?
-: So I-I-
Justice Gaziano: And I think this is more of a concern,
the main's rule, frankly,
for the federal court than it is for us.
-: Well, for the defendant.
Who has-
-: No, for the federal court when they look at it.
-: In the federal court context.
That's right.
I mean, the main's rule has real palpable context.
Justice Gaziano: That's what I mean.
It's- it's-
-: The defendants in federal court.
-: Right.
-: It's a- it's a- it's a bonafide deadline,
as- as far as defendants are concerned.
-: And- and I think the obviously the reason it was reported
was to get some clarity on
what past practices are and what mains really means.
Or- or whether it should continue.
-: And I think that
one thing we've emphasized in the brief is
how difficult it is to- to collect
and analyze those cases
because they're not reported or cataloged.
And so we did our best anecdotally
to pull together the cases,
but it's pretty clear
that this is being applied to the-
to the defendant's death-
Justice Cypher: So, if we were to change
the main time limit,
what do you think would be reasonable?
-: Well, I- I agree with what was suggested earlier,
that a 30 day deadline is fine to file something.
And what I'm emphasizing is that in a case
where a defendant is now serving a new sentence,
one of the things that needs to be filed
is a motion for a stay.
Justice Lowy: What's your position on
the Commonwealth view that- as it relates to timing
and what's filed,
that they were falling past practice
with the single justice?
-: Well, I think there's a criti...
Those practices relate to rule 15 motions,
which do have a set of rules around them,
and also they concern interlocutory appeals.
So this is what I'm emphasizing.
It's really different
when all of a sudden there's a new sentence that's in effect
because that gives rise to these constitutional concerns.
And in interlocutory appeal,
those concerns are not present.
But I also, again,
think that that argument reflects the position of privilege
from which the Commonwealth is coming
because it's talking about this insider knowledge
of clerk's office practices.
Justice Lowy: We're- we're pretty generous.
We're pretty generous to everybody, aren't we?
-: Absolutely.
-: I mean, have you ever-
Michelle Mankin: Myself included.
Justice Lowy: You don't get-
you don't get the privileges from the clerk's offices,
is that what you're saying?
Michelle Mankin: Well, it's not- it's not...
Listen, I'm an attorney.
-: Right.
-: But there are prose litigants.
How are they supposed to know?
I mean, that- that's the point of the rules.
Justice Kafker: We don't really deny these, I mean,
you've raised a much more complicated problem,
which is when the sentence has changed,
but we've been unbelievably generous
to both sides in keeping these things focused on substance.
We- we've not been policing timing too much, have we?
I mean, I've been a single justice a lot of times.
I can't remember ever denying a late one.
-: A late gatekeeper petition?
-: Yeah.
Michelle Mankin: Well, I think that there are several.
It's very, very common for a single justice.
-: I expect, I'm not alone.
Michelle Mankin: Are there are many,
there are many single justice decisions
where the decision is, it's untimely and has no merit.
-: Right, but that's- that's how we do it, right?
Michelle Mankin: Right.
So, but the thing is that,
that statement that it's untimely has consequences
when the- when the defendant proceeds to- to habeas.
-: Yeah, for the defense, not for us.
-: That's right.
For the defense, not for you.
And if there are any more questions.
Justice Cypher: And can you just take two seconds
to spell out for all of us
what that consequence means on the federal system?
-: Sure.
It's a procedural default that the bar's habeas review.
And in fact, if even if...
In- in-
-: [Justice Wendlandt] Isn't it really that
(inaudible) says one year after the 30 day deadline lapses,
that's it for the federal habeas?
Michelle Mankin: That's right.
-: Right.
-: And so any...
If- if...
Let's say an untimely gatekeeper were allowed to proceed,
and then the defendant lost on appeal and then went,
and this happens, there's a case cited in the briefs,
and then went for habeas review,
all of the time between
when the- the- the 30 day mains deadline
and the date that the petition was
allowed to proceed untimely,
that still counts against that (inaudible) one year.
I see that my time is well over.
Thank you.
-: [Chief Justice Budd] Thank you.
Okay, Attorney Greenberg.
Ruth Greenberg: Thank you.
Ruth Greenberg for Mr. DeBenedetto,
whose family is here today.
I'd like to start with-
Justice Cypher: Can I ask you to speak louder?
Ruth Greenberg: Oh, I'm sorry.
Better?
Justice Cypher: Yes.
-: I, I'd like to start, you know,
with- with our points of,
my points of agreement with my sister.
Justice Cypher: Well can I ask you.
-: Yes.
-: [Justice Wendlandt] To start with the-
the correct constitutional test,
which you're with,
Commonwealth articulates as a rational basis test.
Do you agree with that?
-: Well, I- the test here is whether.
the government's action offends...
It is offensive to implicit,
you know, concept of ordered liberty.
That's the test.
-: [Justice Wendlandt] Well, you have no right,
the defendant has no right to a plea period,
and the defendant has no right to have a guilty plea.
Or I'm sorry,
the defendant has no right to a plea deal period.
The defendant has no right to have a guilty plea accepted.
Are you suggesting that there's somehow
a fundamental right not to have a package deal?
Ruth Greenberg: That's exactly what I'm saying.
And that's just where I was gonna start.
-: [Justice Wendlandt] So you're saying,
and where- where would I find legal authority for that,
given what I just said about the first two?
No plea deal at all,
and then no right to have the plea deal accepted?
-: Those are two separate questions.
The first-
-: [Justice Wendlandt] But they're related.
-: I agree with you.
-: Explain how-
Ruth Greenberg: Yes.
-: Given those two things,
you're nonetheless finding a fundamental right
to a non package deal.
-: Yes.
Yes, I can.
I agree with you.
I agree with the court on the precedent.
There is no right to a plea offer.
If the Commonwealth had made no plea offer in this case,
I would not be here.
But the Commonwealth did make a plea offer.
When the Commonwealth makes a plea offer,
that plea offer, the process of that plea offer,
since Lafler and Fry is constitutionalized
and it's entitled to constitutional protections.
It's not, as my sister says.
-: [Justice Wendlandt] Well, yeah, I mean,
it would be entitled to constitutional protections.
The question is, is it strict scrutiny or rational basis?
It's strict scrutiny, if you're right,
that there's a fundamental right
to a non package plea deal.
But if it- if it's not a fundamental right,
implicit and ordered liberty,
then we default to rational basis review.
-: Why is it not a fundamental right,
implicit and ordered liberty?
-: Well, yeah, that was my question to you.
-: That's my question to- (laughter)
-: And and yes that's good.
-: It turns out I wear the robe.
I get to ask the questions.
-: No, we're- we're good.
We're asking the same question and the answer to that-
-: [Justice Wendlandt] Sure.
(laughter)
-: Yeah, we're good.
What's the... I used to teach first Stanley Kaplan,
what's the opposite of the word order?
The opposite of the word order is random.
And what the- what the Commonwealth is saying,
is these are ran- at best-
-: [Justice Wendlandt] All right, let's just say-
-: Is random.
-: I disagree with you,
that there is actually a fundamental right,
and that there is a right to a
fairness in the plea deal process.
So for example, the prosecutor couldn't say,
I offer this deal to you because you're white.
An- and that- that would be a problem,
if there were some sort of irrational,
unconstitutional classifications going on.
But here the Commonwealth saying,
I- I want it all or nothing,
I want... Either I go to trial or I don't go to trial.
And so you committed this crime allegedly
with two- with two other people.
You get everybody on board.
And that way I don't have to go to trial.
Why isn't that a rational way
of pursuing that legitimate state interest
in preserving resources
and not having the victims have to testify.
-: Because it's not static.
The Commonwealth could say that.
Let's assume the Commonwealth said that.
Let's assume then, defendants A and B say we choose a trial.
In that case, the Commonwealth is going to trial.
The Commonwealth is now going.
Costa wants a trial?
The Commonwealth is trying the case.
At that point,
what does the Commonwealth owe to DeBenedetto?
Why are the action...
Since the Commonwealth is now trying the case anyway,
time is moving, things are changing.
The commonwealth is trying the case.
Justice Lowy: Well, the- the-
-: Why is it not vindictive to punish-
-: Because we have to figure out
what rational basis is for that.
There's a lot of things going on when there's co-defendants.
Not just that it's more arduous and difficult to try,
right from the impenalment on.
And a lot of times if you are going-
if you have co-defendants,
you're gonna offer a deal well lower than you would
with a standalone plea for a multiplicity of reasons.
You've got- sometimes you've got, as we've alluded to,
witnesses who it- it- it's going to be really difficult
for them to testify.
And the DA makes a- a judgment call to offer a package deal.
So it's not whether that- the question now is not,
whether that puts the defendants in a difficult position,
puts them in a very difficult position,
even if there is no right to a plea.
The question is whether
or not those reasons have a rational basis.
-: But the question is those reasons-
reasons have a rational basis, when?
They might have a rational basis
before the defendants plead.
But after the trial is set, that rational basis vanishes.
It wasn't a rational-
there was no rational basis to try DeBenedetto just
because Costa is being tried.
If anything, the Commonwealth-
Justice Gaziano: But you're making a judgment about
the commonwealth's use of its resources.
-: Yeah, it's gone. Justice Gaziano: Okay.
Ruth Greenberg: It's gone. There is no-
-: So we should ask the defense attorneys
what the prosecution should do?
How they use their resources?
Who they should give a deal to?
Who they shouldn't give a deal to?
Ruth Greenberg: But what-
-: They're worried about coming in
and testifying for the- for the defense.
-: You're not looking at the movie.
When you look at the...
That might be true at the beginning,
but it's not true after Costa decides to go to trial.
Once Costa decides to go to trial.
Justice Gaziano: Who's in a good position
to assess the use of the Commonwealth resources?
-: At that point?
It can't be easier to try two than one.
-: Okay.
In your opinion, as a prosecutor, right?
-: In- there's no rational basis to believe it's easier.
No legitimate basis to believe
it's easier to try two than one.
-: Based on your experience as a prosecutor, right?
-: What- base- I don't want quarrel with you, Judge,
What reason could there be
that makes it easier to try two than one?
If they're being tr- what makes it easier?
-: Well.
-: How could it be?
-: I don't wanna debate you about 30 years of experience,
but whatever.
-: I'm- that- that- if this court...
Let's talk about how we decide
what shocks the conscience.
Does the- has...
Is this a practice that
if there's a member of the court
that's engaged in this practice
and looks at his own experience and says,
I did it, it must be right.
That judge-
Justice Cypher: I don't think that's
what anybody's saying or suggesting,
and I- I don't think that's a good- good avenue to pursue.
What I might pursue is, why in this instance,
should your client not have the-
why should we not affirm this?
Since everything seems to be procedurally intact here.
Except for your constitutional plea question,
which we may or may not agree with.
-: This is the question that's before the court.
May the government looking at the trial of two people
where the government is now compelled to proceed to trial,
in any case,
compel the second defendant to proceed to trial only
because the first defendant chose to go to trial?
It appears on those facts that the set-
that the defendant who wanted to plea is being punished
because the first defendant refused.
-: [Justice Wendlandt] What are the terms that plea?
Ruth Greenberg: The terms of the plea here were,
the offer was, you can plead if Costa does.
Costa refu-
-: [Justice Wendlandt] Okay.
So that, the condition precedent didn't happen?
-: So-
-: So there is no deal on the table?
-: But it's not- it's not governed as the-
my sister argues by strict principles of contract law.
-: Because the position of the government in such a contract
is so far superior.
It's not a contract question, it is a fundamental fairness.
Justice Lowy: Going all the way back to Santabello.
The- the- the issue is,
is there a right to specific performance
and the question becomes specific performance to what?
-: So in this case, the plea offer was clear,
two manslaughter sentences,
if DeBenedetto could somehow force- force Costa to plead,
which DeBenedetto declined to do.
You know, - I wanna take just one moment to talk about the-
the- the Hammond County amicus in this case.
Justice Kafker: Before you switch to that.
So they can't switch the...
I mean they can't change their mind?
Okay, if we're gonna try two, the manslaughter was okay,
but you know, that deal is off.
I mean they could- you know, you could propose another,
as your sister argues,
you could propose second degree or whatever.
You're- are you bound to the original?
Is that what you're saying?
That's a violation of substantive due process,
if you- you change from the manslaughter to something else?
Ruth Greenberg: It's a violation of due process
with regard to Mr. DeBenedetto.
Justice Kafker: Well, I- my- my question
because we're not just deciding Mr. DeBenedetto's case.
-: Yes.
-: We're creating a precedent.
I'm just trying to understand,
are you saying you can't change that at all?
-: It's fundamentally unfair to not let Mr. DeBenedetto take-
get the benefit of the offer because of-
Justice Kafker: But remember, from what I understand,
you- you- you changed this sort of paradigm a little bit.
You say, look, okay, once Mr. Costa refuses to go,
then there's- we're just looking at the benefits
to the Commonwealth of two versus one, right?
-: Right.
-: But- -: Which-
-: But, so now that original deal,
which they were prepared to...
Because no victim testimony, nothing.
They were giving out a lower-
they were giving manslaughter at that point.
They can't change from that?
Because now the victims have to testify,
they're gonna be re-traumatized.
Can't make any changes?
That's still a violation of substantive of due process?
-: Yes.
Because that's not Mr. Be-
Mr. DeBenedetto did nothing to cause that.
He's being punished for something which he didn't do.
Justice Kafker: Being punished
by getting his constitutional right to a trial?
-: But that's what Lafler and Cooper say.
That argument is no longer good.
That's what changed.
Justice Lowy: Those were
ineffective assistance to counsel cases.
Ruth Greenberg: Those, you know, in the Scalia dissent,
we can see that we have-
we have provided these- all constitutional protections,
as part of the plea bargaining process. All.
-: So just as Justice Wendlant said,
we can't- we can't offer plea bargains only to white people.
-: No, I'm just-
-: Or offer plea bargains-
-: My question is- my question is-
is we try and understand those cases,
aren't they ineffective assistance to council cases,
not locked plea cases?
-: There is no locked plea case.
There is none.
We went through all the possible precedents.
The only one that's actually applicable-
-: One in Pennsylvania.
-: The Pennsylvania case.
-: Right?
-: Yes. That's the only one.
And it's the only one where the argument is-
-: (indistinct)
-: I'm sorry?
-: Prior level, Pennsylvania case.
-: Yes.
-: If I'm remembering,.
-: I thought the circuit courts have addressed this.
-: The circuit courts
address these questions prior to Lafler.
And other than those, they're sort of all oblique.
It's- we run through it in a brief,
I don't want to take my minute.
-: [Chief Justice Budd] But you're actually
five minutes over.
(laughter)
I'm gonna ask you to wrap up, just...
-: Okay, let me say.
Why...
When the government made that offer to Frankie,
it wasn't supposed to only consider horse trading.
It wasn't.
So the government wasn't only supposed to consider
its costs, it conveniences and random effects.
The government made an offer to Frankie
that they felt served the justified
and legitimate purposes of punishment.
The government was satisfied
that the public safety would be protected,
that recognize- it would recognize
Mr. DeBenedetto's willingness to plead guilty.
They were set.
It was a fair sentence according to the Commonwealth.
Two manslaughters on this case.
So we're not revisiting.
And that's where Judge Lang aired.
He said, well, it's a fair sentence.
But that's not the question
because the Commonwealth determined what a fair sentence-
what a fair punishment would be for a person
who accepted guilt.
And they looked at Frank and said,
if you accept guilt,
this is a fair punishment for you
and the interest of society will be served.
However, go make that other guy do it or you can't have it.
And that's a very dangerous practice
for the Commonwealth to have
because it encourages terrible behavior
and it punishes good behavior.
It punishes a person who doesn't bully his co-defendant
or force his co-defendant into taking a deal.
And it has a ripple effect in the community.
Because even if the defendants say,
I'm not gonna bully my co-defendant, words get out,
and all their friends can bully the co-defendant.
It encourages government...
It's the government encouraging bad conduct.
Justice Gaziano: Do you think
it encourages the Commonwealth not to give plea deals?
-: Why would it do that?
I mean, I know I don't get to ask the question.
No, it encourages the Commonwealth to do-
to offer plea deals.
-: Co-defendants.
They say, nobody's getting a deal.
-: That would be fine.
-: That would be be okay?
-: That would be fine.
-: Okay. -: That would be fine.
We accept that would be fine.
What wouldn't be fine-
-: Are you accepting that for all the defendants out there?
-: Yes. (laughter)
Yes, it's- it's the law.
The commonwealth... I- it's not up to me.
The law is clear,
the Commonwealth does not have to offer deals.
-: I- I'm not sure that everyone would agree to accept.
-: But I mean, they don't have to, it's the law.
It's not up to me.
What's up-
-: My argument is, once they-
-: Asking about whether
or not that would be a good prerogative
for the DA to engage in.
That's what Justice Gaziano's question was.
-: It wasn't what the law is as to whether
or not there's a right to a plea offer.
-: [Chief Justice Budd] Should the Commonwealth just say,
we won't do that anymore since it causes so much trouble.
-: The Commonwealth should not do it anymore
because it's an abusive power.
-: [Chief Justice Budd] Think plea deals altogether,
plea deals all together.
Should they just be done away with
and just have everybody go to trial?
-: You know, the Santa Bellow talks about this,
Board and Currture versus Hayes talks about this.
When- when a plea-
Board and Currture versus Hayes
is a case the court wants to look at.
-: But that's a reliance case.
-: Well, it's not exactly a reliance.
It- I mean it's kind of a reliance.
Yes, it's a reliance,
but it talks about the difference
between the legitimate power of the government,
like in the Santa Bellow line.
Negotiating with one person,
the government is allowed to say,
if you don't take this deal,
we will indict you as a- as a recidivous offender.
And that's fine
because that's the terrible choice
that a criminal has to make himself.
That's the exercise of his individual autonomy
and his relationship through counsel
with his government.
-: [Chief Justice Budd] Thank you.
-: That's not we we have here. -: Got it.