The biggest sentencing news since Blakely?
by: Ryan Scott • September 14, 2016 • no comments
Well, not as big as Blakely. Not as sexy. And not constitutional. Just a matter of statutory construction. But the impact may be significant. All you need is a client charged with delivery of a controlled substance, and the odds are pretty good your client will benefit from today's opinion.
The sentence enhancement of "the delivery was for consideration" can be used against your client in two ways. It can elevate a level-4 delivery (DCS) to a level-6. Or, if paired with a couple of other enhancements, it can elevate a level-4 to a level-8. The difference between level-4 and level-6 can be prison, depending on your client's criminal history, but even if your client isn't looking at prison, it lengthens his period of probation. And a level-8, even for a first time offender, is always presumptive prison.
Today, the COA -- in a case called St v Villagomez -- ruled that the consideration at issue must be actual. That is, it's not enough that your client is found with drugs with the intent to sell them. He must have received either money -- or some other valuable -- or a promise in exchange for those drugs. In the vast majority of Boyd deliveries, the state will not be able to demonstrate consideration. (Exceptions might be where your client's text messages indicate he's on his way to sell to someone who has already promised him some money. All the more reason to suppress the search of your client's phone, using St v Mansor.)
In combination with last week's great "commercial drug offense" opinion - State v. Rankins -- we're gaining some serious leverage in challenging drug enhancement facts.
How many people will benefit from today's opinion? It will help a lot of people with DCS charges pending, and it may even discourage prosecutors from alleging CDO factors in cases they otherwise would have. Since I don't think I've ever seen a delivery without a "for consideration" enhancement attached -- except for bizarre marijuana deliveries of more than an ounce where the statutes were written in an absurd way, and not just because it was marijuana -- this is going to impact a lot of cases.
