jdswifey02
05-03-2002, 08:08 AM
COURT OVERTURNS `3 STRIKES' SENTENCE OF DRUG OFFENDER
San Jose Mercury News
By Howard Mintz
Copyright May 1, 2002
Criminal justice laws clash in S.J.California voters approved the ``three strikes, you're out'' law to send repeat felons away for life. Then they approved Proposition 36 to give non-violent drug offenders a chance to stay out of prison and get treatment. On Tuesday, the two very different approaches to criminal justice collided in a case out of Santa Clara County that could affect hundreds of California inmates serving potential life prison terms.
In a 2-1 decision, the San Jose-based 6th District Court of Appeal overturned a 25-years-to-life sentence for "three-striker" Tommy Lee Fryman, ruling that Proposition 36 should apply to his case -- even though he was convicted of
cocaine possession two years before the law went into effect in July 2001.
The court concluded that the tough-on-crime 1994 "three strikes" law unconstitutionally required Fryman go to prison for at least 25 years while Proposition 36 entitles him to probation for the exact same crime.
With an armed robbery conviction and other felonies in his past, Fryman was eligible for the long prison term when he was sentenced in 1999 because it was his "third strike." But the appeals court decision centered on timing: If Fryman had been sentenced less than two years later, he would have been put on probation under Proposition 36, which mandates drug treatment for non-violent drug offenders.
Equal protection cited A divided panel of the appeals court found that the ``drastic difference'' between what Fryman's punishment would be under the two laws -- freedom vs.
possibly life in prison -- violates the equal protection clause of the Constitution.
``It's the first and only opinion that really decides this equal protection issue,'' said Marylou Hillberg, Fryman's court-appointed lawyer. ``At least within the 6th District, if you're doing 25-years-to-life and eligible for Prop. 36, I'd file'' a new appeal.
However, the California Attorney General's Office is onsidering appealing the 6th District decision to the state Supreme Court, which has yet to address the conflict between "three strikes" and Proposition 36. Tuesday's ruling marks the latest setback for the "three strikes" law, which has been under heavy legal assault in California. The U.S. Supreme Court recently agreed to consider whether a potential life sentence for a non-violent felony "third strike" amounts to cruel and unusual punishment, a case with ramifications for thousands of California inmates. While the stakes in the San Jose case are not as high as the broad challenge in the U.S. Supreme Court, the 6th District ruling, if it stands, could
reopen hundreds of cases across the state. There are more than 1,200 inmates serving 25-years-to-life sentences whose "third strike" was for a drug offense, although not all of them would have been eligible for diversion under Proposition 36.
For one thing, Proposition 36 requires that a defendant go five years without committing any felony. Fryman had gone nearly eight years without a conviction when he was sentenced after San Jose police arrested him with more
than a gram of cocaine. On appeal, Fryman argued that he should be eligible for Proposition 36's mandatory drug treatment and probation provisions, even though it was not law when he was sentenced. State prosecutors maintained that the law was not retroactive and applies only to defendants sentenced under Proposition 36's requirements.
Majority, dissent Writing for the majority, Justice William Wunderlich said there is no ``rational basis'' for keeping Fryman in prison for 25-years-to-life when Proposition 36 now orders probation for the same offense. Justice Patricia Bamattre-Manoukian dissented, saying that Fryman was not entitled to the benefits of a law that did not exist when he was sentenced, and that there were no constitutional violations in the three strikes sentence.
San Jose Mercury News
By Howard Mintz
Copyright May 1, 2002
Criminal justice laws clash in S.J.California voters approved the ``three strikes, you're out'' law to send repeat felons away for life. Then they approved Proposition 36 to give non-violent drug offenders a chance to stay out of prison and get treatment. On Tuesday, the two very different approaches to criminal justice collided in a case out of Santa Clara County that could affect hundreds of California inmates serving potential life prison terms.
In a 2-1 decision, the San Jose-based 6th District Court of Appeal overturned a 25-years-to-life sentence for "three-striker" Tommy Lee Fryman, ruling that Proposition 36 should apply to his case -- even though he was convicted of
cocaine possession two years before the law went into effect in July 2001.
The court concluded that the tough-on-crime 1994 "three strikes" law unconstitutionally required Fryman go to prison for at least 25 years while Proposition 36 entitles him to probation for the exact same crime.
With an armed robbery conviction and other felonies in his past, Fryman was eligible for the long prison term when he was sentenced in 1999 because it was his "third strike." But the appeals court decision centered on timing: If Fryman had been sentenced less than two years later, he would have been put on probation under Proposition 36, which mandates drug treatment for non-violent drug offenders.
Equal protection cited A divided panel of the appeals court found that the ``drastic difference'' between what Fryman's punishment would be under the two laws -- freedom vs.
possibly life in prison -- violates the equal protection clause of the Constitution.
``It's the first and only opinion that really decides this equal protection issue,'' said Marylou Hillberg, Fryman's court-appointed lawyer. ``At least within the 6th District, if you're doing 25-years-to-life and eligible for Prop. 36, I'd file'' a new appeal.
However, the California Attorney General's Office is onsidering appealing the 6th District decision to the state Supreme Court, which has yet to address the conflict between "three strikes" and Proposition 36. Tuesday's ruling marks the latest setback for the "three strikes" law, which has been under heavy legal assault in California. The U.S. Supreme Court recently agreed to consider whether a potential life sentence for a non-violent felony "third strike" amounts to cruel and unusual punishment, a case with ramifications for thousands of California inmates. While the stakes in the San Jose case are not as high as the broad challenge in the U.S. Supreme Court, the 6th District ruling, if it stands, could
reopen hundreds of cases across the state. There are more than 1,200 inmates serving 25-years-to-life sentences whose "third strike" was for a drug offense, although not all of them would have been eligible for diversion under Proposition 36.
For one thing, Proposition 36 requires that a defendant go five years without committing any felony. Fryman had gone nearly eight years without a conviction when he was sentenced after San Jose police arrested him with more
than a gram of cocaine. On appeal, Fryman argued that he should be eligible for Proposition 36's mandatory drug treatment and probation provisions, even though it was not law when he was sentenced. State prosecutors maintained that the law was not retroactive and applies only to defendants sentenced under Proposition 36's requirements.
Majority, dissent Writing for the majority, Justice William Wunderlich said there is no ``rational basis'' for keeping Fryman in prison for 25-years-to-life when Proposition 36 now orders probation for the same offense. Justice Patricia Bamattre-Manoukian dissented, saying that Fryman was not entitled to the benefits of a law that did not exist when he was sentenced, and that there were no constitutional violations in the three strikes sentence.