In Commonwealth v. K_______ (2008), a Chester County case, I represented a client who was pulled over in his vehicle and consented to a search of it which yielded 2.22 grams of cocaine. The drugs were found in a knapsack inside a clear freezer size Ziploc bag. Inside it the police found a rock of cocaine which weighed 1.84 grams and a smaller baggie of powder which weighed .38 grams. Also in the Ziploc bag were smaller baggies used for packaging cocaine as well as a coke spoon. My client gave an admission to the police that the drugs were his. Consequently, my client was charged with one count of Possession with Intent to Deliver and one count of Simple Possession.
In the Commonwealth of Pennsylvania, the legislature has fixed a mandatory one year sentence for any individual convicted of Possession with Intent to Distribute Cocaine where the weight of the cocaine held for distribution is between 2 and 10 grams, so as you can see my client was in a jam. At trial my client was found guilty of both charges and I immediately requested a hearing pursuant to Commonwealth v. K_______, 651 A.2d 171 (Pa. Super 1994), appeal denied, 541 Pa. 649, 664 A.2d 171 (1995). In what has come to be known as simply a "Carroll Hearing", I asked the trial judge to rule that some of the cocaine found in my client's possession was meant for his own personal consumption and not possessed for sale. Further, it was my argument that the weight of this "personal use" cocaine should be excluded for sentencing purposes. If the Judge ruled in my client's favor it would "de-mandatorize" the potential sentence and free the Judge to apply the standard Pennsylvania Sentencing Guidelines rather than mandate the Court to sentence my client to a year in state prison.
In support of my client's case, I submitted the following facts: When my client was arrested, he had no cell phone, no beeper, and no cash on his person or in his vehicle. He had no scales to weigh the cocaine. He had no cutting agents to mix with the cocaine. Most importantly though, the judge was persuaded by the fact that the cocaine was found in two parts: one was in rock form, which is typically the form cocaine is in when it is sold. The second was powder cocaine in a small baggie commonly seen of individuals that buy and not sell. The Court recognized that drugs had been removed from the small baggie. My client testified that he was using drugs out of that bag.
Consequently, The Court ruled that the .38 grams found in the aforementioned small baggie of powder was for personal use and thereby not possessed with intent to sell and that the total amount of cocaine possessed for sale by my client would be restricted to only the 1.84 grams of rock cocaine, thus putting the weight for sentencing purposes under the crucial two gram requirement that would trigger the mandatory one year sentence. My client was elated when he was sentenced by the judge to a term of county probation, as opposed to a minimum of one year in state prison. This case is illustrative of the need to sometimes counsel clients that the facts in their case are so stacked against them that the chance of an acquittal is small and that the focus of that clients defense should be in the sentencing phase for the purpose of keeping any potential sentence in the probationary range as opposed to one that gives the client serious jail time exposure.
