THE GENERAL ASSEMBLY
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
COMMISSION ON SENTENCING
PART VIII. CRIMINAL SENTENCING
[ 204 PA. CODE CHS. 303 and 307 ]
Proposed 7th Edition Sentencing Guidelines, Amendment 5; Proposed Resentencing Guidelines
[49 Pa.B. 2103]
[Saturday, April 27, 2019]The Pennsylvania Commission on Sentencing hereby publishes for public comment proposed Amendment 5 to the 7th Edition Sentencing Guidelines, 204 Pa. Code §§ 303.1—303.18(c). The Commission also publishes for public comment proposed Resentencing Guidelines. The proposed Amendment 5 is set forth in Annex A, and the proposed Resentencing Guidelines are set forth in Annex B.
The 7th Edition Sentencing Guidelines, which the Commission adopted on September 13, 2012, apply to all offenses committed on or after the effective date of December 28, 2012. In response to legislation enacted since September 13, 2012, the Commission adopted the following amendments to the 7th Edition Sentencing Guidelines:
• Amendment 1 of the 7th Edition Sentencing Guidelines was adopted on June 6, 2013 and became effective September 27, 2013.
• Amendment 2 of the 7th Edition Sentencing Guidelines was adopted on June 5, 2014 and became effective September 26, 2014.
• Amendment 3 of the 7th Edition Sentencing Guidelines was adopted on June 4, 2015 and became effective September 25, 2015.
• Amendment 4 of the 7th Edition Sentencing Guidelines was adopted June 1, 2017 and became effective January 1, 2018. A Supplement to Amendment 4 of the 7th Edition Sentencing Guidelines was adopted on December 14, 2017 and became effective June 1, 2018.
On March 7, 2019, the Commission approved for the purpose of public comment proposed Amendment 5 of the 7th Edition Sentencing Guidelines, primarily addressing legislative mandates to create sentencing enhancements for:
1) Domestic violence involving simple or aggravated assault in the presence of a minor (42 Pa.C.S. § 9720.8);
2) Homicide by vehicle (75 Pa.C.S. § 3732(a)) if there is a conviction for a violation of 75 Pa.C.S. § 1501 (required to be licensed) or § 1543 (operating privilege suspended/revoked); and
3) Aggravated assault by vehicle (75 Pa.C.S. § 3732.1(a)) if there is a conviction for a violation of 75 Pa.C.S. § 1501 (required to be licensed) or § 1543 (operating privilege suspended/revoked).
Additionally, this proposal addresses changes in the classification of offenses related to driving under the influence (75 Pa.C.S. § 3802) and other Title 75 offenses, and assigns offense gravity scores to new and modified offenses enacted by the General Assembly during the 2017-2018 Session. The proposed Amendment 5 is set forth in Annex A.
Resentencing Guidelines, mandated by Act 81 of 2008, require the Commission to ''. . . adopt guidelines that shall be considered by the court when resentencing an offender following revocation of probation, county intermediate punishment or state intermediate punishment. The guidelines shall take into account: (1) factors considered in adopting the sentencing guidelines, (2) the seriousness of the violation, and (3) the rehabilitative needs of the defendant'' (42 Pa.C.S. § 2154.4). As no statewide data source existed, the Commission developed a revocation and resentencing module within SGS Web to collect resentencing information. Effective with Amendment 3 of the 7th Edition Sentencing Guidelines, the Commission required ''for all sentences imposed on or after January 1, 2016, all subsequent revocations of probation, county intermediate punishment, and state intermediate punishment and related resentences shall be reported to the Commission'' (§ 303.1(e)(2)).
On March 7, 2019, the Commission approved for the purpose of public comment proposed Resentencing Guidelines. This proposal is informed by an analysis of the revocations and resentences reported to the Commission since 2016, and provides resentencing recommendations for technical violations and conviction violations. These recommendations would apply to revocations of probation, county intermediate punishment and state intermediate punishment. The Commission is seeking public comment on the proposed Resentencing Guidelines as set forth in Annex B.
In accordance with 42 Pa.C.S.A. § 2155, the Commission shall publish in the Pennsylvania Bulletin all proposed sentencing guidelines and risk assessment instruments and hold public hearings not earlier than 30 days and not later than 60 days thereafter to afford an opportunity for the following persons and organizations to testify:
(i) Pennsylvania District Attorneys Association
(ii) Chiefs of Police Associations
(iii) Fraternal Order of Police
(iv) Public Defenders Organization
(v) Law School faculty members
(vi) Pennsylvania Board of Probation and Parole
(vii) Pennsylvania Department of Corrections
(viii) Pennsylvania Bar Association
(ix) Pennsylvania Wardens Association
(x) Pennsylvania Association on Probation, Parole and Corrections
(xi) Pennsylvania Conference of State Trial Judges
(xii) Any other interested person or organization
The Commission will hold the following three public hearings to receive comments on the proposed revisions to the sentencing guidelines and proposes resentencing guidelines:
Hearing I. Date: Wednesday, May 29, 2019 Time: 1:30 p.m. Location: Montgomery County Courthouse, Courtroom A
2 East Airy Street
Norristown, PAHearing II. Date: Thursday, June 6, 2019 Time: 1:30 p.m. Location: Cambria County Courthouse, Courtroom 1
200 South Center Street
Ebensburg, PAHearing III. Date: Wednesday, June 12, 2019 Time: 2:00 p.m. Location: Pennsylvania Judicial Center
601 Commonwealth Avenue
Harrisburg, PAPersons or organizations wishing to testify are asked to contact the Commission at least five business days prior to the hearing to be registered and are asked to provide an electronic copy of any testimony. Written comments from persons or organizations not wishing to testify should be received by the Commission at least five business days before the last-scheduled public hearing. Commission staff will copy and distribute any submitted documents to Commission Members. Please contact Cathy Dittman (814.863.5729 or CWD2@PSU.EDU) to register to testify and/or to submit testimony or written comments.
Any other individuals wishing to testify who have not registered five days in advance are asked to provide 30 copies of any testimony at the time of the public hearing.
The Commission will evaluate the proposed Amendment 5 to the 7th Edition Sentencing Guidelines and the proposed Resentencing Guidelines after consideration of the testimony and written comments received. The Commission anticipates addressing these proposals at its next quarterly meeting, which will be held on Thursday, June 13, 2019 at the Pennsylvania Judicial Center, 601 Commonwealth Avenue, Harrisburg, PA. All Commission meetings are open to the public. Any proposals adopted by the Commission will be submitted to the General Assembly for review by way of publication in the Pennsylvania Bulletin, and will become effective 90 days after publication unless rejected by concurrent resolution of the General Assembly.
JUDGE SHEILA A. WOODS-SKIPPER,
Chair
Commentary on Annex A This Commentary provides selected highlights of the proposed Amendment 5 to the 7th Edition Sentencing Guidelines. The proposed Amendment 5 is set forth in Annex A.
Revisions to 303.1—Sentencing guideline standards
Amendment 4 of the 7th Edition Sentencing Guidelines were effective January 1, 2018, and apply to all offenses committed on or after that date. The Supplement to Amendment 4 was effective June 1, 2018 and applies to violations of 35 P.S. § 780-113(a)(14) and (30) involving fentanyl and its derivatives and analogues. If adopted, Amendment 5 will be effective January 1, 2020.
Revisions to 303.2—Procedure for determining the guideline sentence
No changes.
Revisions to 303.3—Offense gravity score (general)
Language was added in (e)(2), Violation of the Controlled Substance, Drug, Device, and Cosmetic Act. The subsection is added to clarify the intent of the Supplement to Amendment 4. The subcategorization which increased the OGS assignments for fentanyl and its derivatives and analogues was intended to be limited to circumstances where there is proof at trial that the defendant knowingly possessed, distributed, delivered or manufactured fentanyl or its derivatives or analogues. In circumstances where fentanyl is included in the mixture or compound but is not proven at trial (or included in a plea), the mixture or compound is assigned the OGS for ''Other Narcotics of Schedule I or II.''
Language was modified in (f) to address the offense gravity score assignment instances in which the grade of an offense in § 303.15 is decreased.
In (g), the offense gravity score of '15' will apply to all sentences for first or second degree murder.
Revisions to 303.4—Prior record score (categories)
No changes.
Revisions to 303.5—Prior record score (prior convictions)
No changes.
Revisions to 303.6—Prior record score (prior juvenile adjudications)
Language was modified in (a)(2) to include juvenile adjudications for driving under the influence and operating a watercraft under the influence.
Revisions to 303.7—Prior record score (guideline points scoring)
No changes
Revisions to 303.8—Prior record score (miscellaneous)
No changes.
Revisions to 303.9—Guideline sentence recommendations (general)
The Commission modified the Youth and School Enhancement. In its view distribution of a controlled substance to a minor is more serious an offense than distribution in a school zone. Therefore, the application of the enhancement is modified in § 303.9(c). See also §§ 303.10, 303.11, 303.13, and 303.18.
Act 157 of 2018 mandated that the Commission adopt a sentencing enhancement for simple and aggravated assault if the defendant committed the offenses against a family or household member, the defendant knew the crime was witnessed via sound or sight by a minor, and the minor was also a family or household member. The Commission chose to expand this mandate to propose a broader sentencing enhancement that applies to any offense under 18 Pa.C.S. Chapters 25, 27, 29, 30, 31, or 49 against a family or household member. The offense gravity score is increased by one point. Additionally, if the offense was witnessed by a minor family/household member, the court must consider whether to order the offender to pay any costs or fees associated with treatment for the minor resulting from exposure to domestic violence. See also § 303.10 and § 303.14.
Revisions to 303.10—Guideline sentence recommendations (enhancements)
The Commission modified the Youth and School Enhancement. In its view distribution of a controlled substance to a minor is more serious an offense than distribution in a school zone. Therefore, the application of the enhancement is modified in § 303.10(b). See also §§ 303.9, 303.11, 303.13, and 303.18.
In (h), the Commission sets forth the Domestic Violence Sentencing Enhancement. See also § 303.9 and § 303.14.
Revisions to 303.11—Guideline sentence recommendations (sentencing levels)
The Commission modified the Youth and School Enhancement. In its view distribution of a controlled substance to a minor is more serious an offense than distribution in a school zone. Therefore, the application of the enhancement is modified in 303.11(b). See also §§ 303.9, 303.10, 303.13, and 303.18.
Revisions to 303.12—Guideline sentence recommendations (sentencing programs)
No changes.
Revisions to 303.13—Guideline sentence recommendations (aggravating and mitigating circumstances)
The Commission modified the Youth and School Enhancement. In its view distribution of a controlled substance to a minor is more serious an offense than distribution in a school zone. Therefore, the application of the enhancement is modified in § 303.13(b)(7). See also §§ 303.9, 303.10, 303.11, and 303.18.
Revisions to 303.14—Guideline sentence recommendations (economic sanctions)
Under (b) related to costs and fees, the Commission includes a reference to the Domestic Violence Sentencing Enhancement. See also § 303.9 and § 303.10.
Revisions to 303.15—Offense listing
New or modified offenses:
18 Pa.C.S.A.
§ 2713. Neglect of care-dependent person
§ 3713.1. Abuse of care-dependent person
§ 2802. Hazing a minor or student
§ 2803. Aggravated hazing a minor or student
§ 3505. Unlawful use of unmanned aircraft
§ 3935.1. Theft of secondary metal
§ 4121. Possession and use of unlawful device
§ 4915.2. Sexual offender registration
§ 5103.1. Use or operate device to capture, record, etc., proceeding or person in judicial facility
§ 5532—5549. Cruelty to animals
§ 6105. Firearms-persons not to possess: failure to relinquish with PFA
§ 6105.2. Firearms-persons not to possess: intentionally or knowingly fail to relinquish
§ 6701. Misrepresentation of military service or honors
§ 7314. Fraudulent traffic in SNAP benefits
62 Pa.C.S.A.
§ 481. Welfare fraud
75 Pa.C.S.A.
§ 1543. Drive w/susp. Lic.: ARD condition (3rd/subsq off)
§ 3732. Homicide by vehicle
§ 3732.1. Aggravated assault by vehicle
§ 3735. Homicide by vehicle while DUI
§ 3735.1. Aggravated assault by vehicle while DUI
§ 3742.1. Accident involving death/personal injury
§ 3802. DUI
Corrections:
18 Pa.C.S.A.
§ 2904(a). Interfere with custody of children-good cause/time <24 hrs. (ML Tier I)
§ 3922(a)(3). Theft by deception-fail to correct (>$25,000-<$100,000 or motorized vehicle)
§ 3923(a)(7). Theft by extortion-inflect harm (>$25,000-<$100,000 or motorized vehicle)
§ 3925(a). Theft of receiving stolen property (>$25,000-<$100,000 or motorized vehicle)
23 Pa.C.S.A.
§ 6319. Failure to report or refer suspected child abuse
35 P.S.
§ 780-113(a)(30). Possession with intent to deliver PCP (100-<1000 g)
Technical Change:
18 Pa.C.S.A.
§ 7131(a). Buying/exchanging food stamps benefits
35 P.S.—included reference to § 303.3(e)(2)
§ 780-113(a)(14). Delivery by practitioner—fentanyl and its derivatives and analogues
§ 780-113(a)(30). Possession with intent to deliver—fentanyl and its derivatives and analogues
Assignment of OGS 15 to Murder 1 and Murder 2:
18 Pa.C.S.A.
§ 2502. Murder
§ 2505. Causing suicide (as homicide 1 or 2)
§ 2507. Murder of law enforcement officer
§ 2604. Murder of unborn child
§ 2716. Weapons of mass destruction-use (cause death)
§ 3301. Arson endangering persons-cause death w/intent (murder)
Revisions to 303.16(a)—Sentencing Guidelines Matrix
No changes.
Revisions to 303.16(b)—Sentencing Guidelines Matrix
Matrix modified to incorporate an OGS 15 for all murder of first and second degree.
Revisions to 303.17—Deadly Weapon Enhancement Matrices
No changes.
Revisions to 303.18—Youth and School Enhancement Matrices
Sentencing ranges for OGS 12 and OGS 14 added due to Fentanyl OGS assignments. Commission recommends greater ranges applied for youth enhancement than for school enhancement. Section 303.18(a) changed to School Enhancement. Section 303.18(b) changed to Youth Enhancement. 303.18(c) renamed School and Youth Enhancement. Also see §§ 303.9(c), 303.10(b), 303.11(b), and 303.13(b)(7).
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
CHAPTER 303. SENTENCING GUIDELINES § 303.1. Sentencing guidelines standards.
(a) The court shall consider the sentencing guidelines in determining the appropriate sentence for offenders convicted of, or pleading guilty or nolo contendere to, felonies and misdemeanors. Where crimes merge for sentencing purposes, the court shall consider the sentencing guidelines only on the offense assigned the higher Offense Gravity Score.
(b) The sentencing guidelines do not apply to sentences imposed as a result of the following: accelerated rehabilitative disposition; disposition in lieu of trial; direct or indirect contempt of court; violations of protection from abuse orders; revocation of probation, intermediate punishment or parole.
(c) The sentencing guidelines shall apply to all offenses committed on or after the effective date of the guidelines. Amendments to the guidelines shall apply to all offenses committed on or after the date the amendment becomes part of the guidelines.
(1) When there are current multiple convictions for offenses that overlap two sets of guidelines, the former guidelines shall apply to offenses that occur prior to the effective date of the amendment and the later guidelines shall apply to offenses that occur on or after the effective date of the amendment. If the specific dates of the offenses cannot be determined, the later date determines the edition of the guidelines that shall apply to the offenses.
(2) The initial sentencing guidelines went into effect on July 22, 1982 and applied to all crimes committed on or after that date. Amendments to the guidelines went into effect in June 1983, January 1986 and June 1986. On October 7, 1987 the Pennsylvania Supreme Court invalidated the guidelines due to a procedural error that occurred in 1981 when the legislature rejected the first set of guidelines. New guidelines were drafted and became effective on April 25, 1988. Amendments to the guidelines went into effect August 9, 1991 and December 20, 1991. Revised sets of guidelines became effective August 12, 1994, June 13, 1997, June 3, 2005, December 5, 2008, and December 28, 2012. Amendments to the guidelines went into effect September 27, 2013, September 26, 2014, [and] September 25, 2015, January 1, 2018, and June 1, 2018. This amendment, Amendment [4] 5 of the 7th Edition Sentencing Guidelines, shall take effect January 1, [2018] 2020 and apply to all crimes committed on or after that date.
(d) In every case in which a court of record imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where a court of record imposes a sentence outside the sentencing guidelines, the reason or reasons for the deviation from the guidelines shall be recorded on the Guideline Sentence Form, a copy of which shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in § 303.1(e).
(e)(1) Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court's direction to prepare all guideline-required sentencing information. The completed Guideline Sentence Form shall be made a part of the record and the information electronically submitted to the Commission via SGS Web no later than 30 days after the date of sentencing.
(2) Effective for sentences imposed on or after January 1, 2016, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court's direction to report all subsequent revocations of probation, county intermediate punishment and state intermediate punishment and related resentences to the Commission. The information shall be electronically submitted to the Commission via SGS Web no later than 30 days after the date of resentencing.
(f) Effective January 1, 2014, the State Identification Number (SID) for an offender shall be included as part of the record in the completed Guideline Sentence Form.
§ 303.2. Procedure for determining the guideline sentence.
(a) For each conviction offense of a judicial proceeding, the procedure for determining the guideline sentence shall be as follows:
(1) Determine the Offense Gravity Score as described in § 303.3 and § 303.15.
(2) Determine the Prior Record Score as described in § 303.4—§ 303.8.
(3) Determine the guideline sentence recommendation as described in § 303.9—§ 303.14, including enhancements (§ 303.10), and aggravating or mitigating circumstances (§ 303.13).
(b) Judicial proceeding. A judicial proceeding is a proceeding in which all offenses for which the offender has been convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple offenses and transactions.
§ 303.3. Offense Gravity Score—general.
(a) An Offense Gravity Score is given for each offense. The Offense Gravity Scores are located in § 303.15.
(b) Subcategorized offenses. Certain offenses are subcategorized and scored by the Commission according to the particular circumstances of the offense. The court determines which Offense Gravity Score, located in § 303.15, applies. These offenses are designated by an asterisk (*).
(c) Inchoate offenses. Inchoate offenses are scored as follows:
(1) Convictions for attempt, solicitation, or conspiracy to commit a Felony 1 offense receive an Offense Gravity Score of one point less than the offense attempted, solicited, or which was the object of the conspiracy.
(2) Convictions for attempt, solicitation, or conspiracy to commit any offense which is not a Felony 1 offense, receive the Offense Gravity Score of the offense attempted, solicited, or which was the object of the conspiracy.
(3) Convictions for attempt, solicitation, or conspiracy to commit any offense under The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-101—§ 780-144) receive the Offense Gravity Score of the offense attempted, solicited, or which was the object of the conspiracy.
(4) Exception for inchoate murder convictions. Convictions for attempt, solicitation, or conspiracy to commit murder receive the Offense Gravity Score of 14 if there is serious bodily injury and 13 if there is no serious bodily injury.
(d) Ethnic Intimidation. Convictions for Ethnic Intimidation (18 Pa.C.S. § 2710) receive an Offense Gravity Score that is one point higher than the offense which was the object of the Ethnic Intimidation. When the object offense is murder of the third degree, a conviction for Ethnic Intimidation receives the highest Offense Gravity Score applicable.
(e) Violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. §§ 780-101—780-144). If any mixture or compound contains any detectable amount of a controlled substance, the entire amount of the mixture or compound shall be deemed to be composed of the controlled substance. If a mixture or compound contains a detectable amount of more than one controlled substance, the mixture or compound shall be deemed to be composed entirely of the controlled substance which has the highest Offense Gravity Score.
(1) Exception for prescription pills. For violations of 35 P.S. § 780-113(a)(12), (a)(14), and (a)(30) involving narcotic prescription pills of Schedule II, when both the weight and the number of pills are known, the higher Offense Gravity Score assignment applies. (See § 303.15.)
(2) Violations of 35 P.S. § 780-113(a)(14) and (a)(30) involving fentanyl and its derivatives and analogues are based on the determination at trial that the offender knowingly possessed, delivered, distributed or manufactured a mixture or compound containing fentanyl or its derivatives or analogues.
(f) Omnibus Offense Gravity Scores. [The Omnibus Offense Gravity Score is applied in the following circumstances:] The Omnibus Offense Gravity Scores are provided below and in the listing at § 303.15:
Felony 1 8 Felony 2 7 Felony 3 5 Felonies not subclassified by the General Assembly 5 Misdemeanor 1 3 Misdemeanor 2 2 Misdemeanor 3 1 Misdemeanors not subclassified by the General Assembly 1 The Omnibus Offense Gravity Score is applied in the following circumstances:
(1) when the offense is not otherwise listed in § 303.15[, or];
(2) when the grade or statutory maximum sentence of an offense listed in § 303.15 has [changed] increased, unless application of this section would result in a lower Offense Gravity Score [for an increased grading or statutory maximum sentence of the offense.]; or
(3) When the grade or statutory maximum sentence of an offense listed in § 303.15 has decreased, unless application of this section would result in a higher Offense Gravity Score.
Where the definition of an offense listed in § 303.15 is changed, but the grade or statutory maximum sentence is not changed, the previously assigned offense gravity score shall apply.
[The Omnibus Offense Gravity Scores are provided below and in the listing at § 303.15:
Felony 1 8 Felony 2 7 Felony 3 5 Felonies not subclassified by the General Assembly 5 Misdemeanor 1 3 Misdemeanor 2 2 Misdemeanor 3 1 Misdemeanors not subclassified by the General Assembly 1] (g) The Offense Gravity Score of 15 is assigned only for first and second degree murder [when committed by offenders under age 18].
§ 303.4. Prior Record Score—categories.
(a) Prior Record Score categories. Determination of the correct Prior Record Score category under this section is based on the type and number of prior convictions (§ 303.5) and prior juvenile adjudications (§ 303.6). There are eight Prior Record Score categories: Repeat Violent Offender (REVOC), Repeat Felony 1 and Felony 2 Offender (RFEL), and point-based categories of 0, 1, 2, 3, 4 and 5.
(1) Repeat Violent Offender Category (REVOC). Offenders who have two or more previous convictions or adjudications for four point offenses (§ 303.7(a)(1) and § 303.15) and whose current conviction carries an Offense Gravity Score of 9 or higher shall be classified in the Repeat Violent Offender Category.
(2) Repeat Felony 1 and Felony 2 Offender Category (RFEL). Offenders who have previous convictions or adjudications for Felony 1 and/or Felony 2 offenses which total 6 or more points in the prior record, and who do not fall within the Repeat Violent Offender Category, shall be classified in the repeat Felony 1 and Felony 2 Offender Category.
(3) Point-based Categories (0—5). Offenders who do not fall into the REVOC or RFEL categories shall be classified in a Point-based Category. The Prior Record Score shall be the sum of the points accrued based on previous convictions or adjudications, up to a maximum of five points.
§ 303.5. Prior Record Score—prior convictions.
(a) If there is a single offense in the prior judicial proceeding, that offense shall be counted in the calculation of the Prior Record Score.
(b) If there are multiple offenses in the prior judicial proceeding:
(1) The most serious offense of the judicial proceeding shall be counted in the calculation of the Prior Record Score.
(2) Any offense for which a sentence of supervision or confinement is imposed consecutive to a sentence for another offense in the judicial proceeding shall be counted in the calculation of the Prior Record Score.
(c) Un-sentenced convictions. If no sentence has yet to be imposed on an offense, the offense shall not be counted in the calculation of the Prior Record Score.
(d) Adequacy of the Prior Record Score. The court may consider at sentencing prior convictions, juvenile adjudications or dispositions not counted in the calculation of the Prior Record Score, in addition to other factors deemed appropriate by the court.
§ 303.6. Prior Record Score—prior juvenile adjudications.
(a) Juvenile adjudication criteria. Prior juvenile adjudications are counted in the Prior Record Score when the following criteria are met:
(1) The juvenile offense occurred on or after the offender's 14th birthday, and
(2) There was an express finding by the juvenile court that the adjudication was for a felony or one of the [Misdemeanor 1] offenses listed in § 303.7(a)(4).
(b) Only the most serious juvenile adjudication of each prior disposition is counted in the Prior Record Score. No other prior juvenile adjudication shall be counted in the Prior Record Score.
(c) Lapsing of juvenile adjudications. Prior juvenile adjudications for four point offenses listed in § 303.7(a)(1) shall always be included in the Prior Record Score, provided the criteria in subsection (a) above are met:
(1) All other juvenile adjudications not identified above in subsection (a) lapse and shall not be counted in the Prior Record Score if:
(i) The offender was 28 years of age or older at the time the current offense was committed; and
(ii) The offender remained crime-free during the ten-year period immediately preceding the offender's 28th birthday.
(iii) Crime-free. Included in the definition of crime-free is any summary offense and/or one misdemeanor offense with a statutory maximum of one year or less.
(2) Nothing in this section shall prevent the court from considering lapsed prior adjudications at the time of sentencing.
§ 303.7. Prior Record Score—guideline points scoring.
(a) Scoring of prior convictions and adjudications is provided below and in the listing of offenses at § 303.15:
(1) Four Point Offenses. Four points are added for each prior conviction or adjudication for the following offenses:
Murder, and attempt, solicitation or conspiracy to commit Murder
All other completed crimes of violence, as defined in 42 Pa.C.S. § 9714(g), excluding inchoates.
Murder of Unborn Child, and attempt, solicitation or conspiracy to commit Murder of Unborn Child
Offenses with OGS 11 or greater, excluding inchoates and Violations of the Controlled Substance Act
Ethnic Intimidation to any Felony 1 offense
(2) Three Point Offenses. Three points are added for each prior conviction or adjudication for the following offenses:
All other Felony 1 offenses not listed in § 303.7(a)(1).
All other inchoates to offenses listed in § 303.7(a)(1).
Violation of 35 P.S. §§ 780-113(a)(12)(14) or (30) involving 50 grams or more, including inchoates involving 50 grams or more.
(3) Two Point Offenses. Two points are added for each prior conviction or adjudication for the following offenses:
All other Felony 2 offenses not listed in § 303.7(a)(1) or (a)(2).
All felony drug violations not listed in § 303.7(a)(2), including inchoates.
(4) One Point Offenses. One point is added for each prior conviction or adjudication for the following offenses:
All other felony offenses not listed in § 303.7(a)(1), (a)(2) or (a)(3).
Any of the following Misdemeanor 1 offenses that involve weapons:
Possessing Instruments of Crime (possession of a weapon)
Prohibited Offensive Weapons
Use or Possession of Electric or Electronic Incapacitation Device
Possession of Weapon on School Property
Possession of Firearm or Other Dangerous Weapon in Court Facility
Violations of the Pennsylvania Uniform Firearms Act
Any of the following Misdemeanor 1 offenses that involve death or danger to children:
Involuntary Manslaughter
Simple Assault (against child under 12 years of age by adult 18 years of age or older)
Luring a Child into a Vehicle
Indecent Assault (complainant is less than 13 years of age)
Indecent Exposure (persons present are less than age 16)
Endangering Welfare of Children
Dealing in Infant Children
Recruiting Criminal Gang Members
Driving Under the Influence of Alcohol or Controlled Substance, except for a first lifetime conviction or adjudication.
Operating a Watercraft Under the Influence of Alcohol or a Controlled Substance, except for a first lifetime conviction or adjudication.
(5) Other Misdemeanor Offenses. All other misdemeanor offenses, including a first lifetime conviction for Driving Under the Influence of Alcohol or a Controlled Substance or Operating a Watercraft Under the Influence of Alcohol or a Controlled Substance, are designated by an ''m'' in the offense listing at § 303.15, and are scored as follows:
(i) One point is added if the offender was previously convicted of two or three misdemeanors.
(ii) Two points are added if the offender was previously convicted of four to six misdemeanors.
(iii) Three points are added if the offender was previously convicted of seven or more misdemeanors.
§ 303.8. Prior Record Score—miscellaneous.
(a) Prior convictions and adjudications of delinquency.
(1) A prior conviction means ''previously convicted'' as defined in 42 Pa.C.S. § 2154(a)(2). A prior adjudication of delinquency means ''previously adjudicated delinquent'' as defined in 42 Pa.C.S. § 2154(a)(2). In order for an offense to be considered in the Prior Record Score, both the commission of and conviction for the previous offense must occur before the commission of the current offense.
(2) When the prior conviction or adjudication of delinquency was committed over a range of dates, the later date shall be used to determine if the prior offense meets the criteria in 303.8(a)(1) and is counted in the prior record score.
(b) Inchoate offenses. Unless otherwise provided in § 303.7 or § 303.15, a prior conviction or adjudication of delinquency for criminal attempt, criminal solicitation or criminal conspiracy is scored under § 303.7 based upon the grade of the inchoate offense.
(c) Ethnic Intimidation. Unless otherwise provided in § 303.7 or § 303.15, a prior conviction or adjudication of delinquency for Ethnic Intimidation is scored under § 303.7 based upon the grade of the Ethnic Intimidation.
(d) Former Pennsylvania offenses.
(1) A prior conviction or adjudication of delinquency under former Pennsylvania law is scored as a conviction for the current equivalent Pennsylvania offense.
(2) When there is no current equivalent Pennsylvania offense, prior convictions or adjudications of delinquency are scored under § 303.7 based on the grade of the offense. When a prior conviction or adjudication of delinquency was for a felony, but the grade of the felony is unknown, it shall be treated as a Felony 3. When a prior conviction was for a misdemeanor, but the grade of the misdemeanor is unknown, it shall be treated as other misdemeanors. When it cannot be determined if the prior conviction was a felony, one point misdemeanors, or other misdemeanors, it shall be treated as other misdemeanors. When a prior conviction is for a crime which has a summary grade, and the grade of the conviction is unknown, the prior conviction shall not be counted in the Prior Record Score.
(e) A prior conviction or adjudication of delinquency for an offense which was misgraded is scored as a conviction for the current equivalent Pennsylvania offense.
(f) Out-of-state, federal or foreign offenses.
(1) An out-of-state, federal or foreign conviction or adjudication of delinquency is scored as a conviction for the current equivalent Pennsylvania offense.
(2) A court-martial for a criminal offense under the Uniform Code of Military Justice is considered a federal conviction and is scored as a conviction for the current equivalent Pennsylvania offense. Non-judicial punishments or administrative actions (e.g., Article 15, Article 134) which are not convictions shall not be counted in the Prior Record Score.
(3) When there is no current equivalent Pennsylvania offense, determine the current equivalent Pennsylvania grade of the offense based on the maximum sentence permitted, and then apply § 303.8(d)(2).
(g) Excluded offenses, charges and convictions. The following types of offenses, charges and convictions shall not be scored in the Prior Record Score:
(1) Summary offenses, violations of local ordinances, direct or indirect contempt of court, violation of protection from abuse orders, and dispositions under Pa.R.Crim.P. Rules 300—320 (relating to accelerated rehabilitative disposition), 35 P.S. § 780-117 (relating to probation without verdict) or 35 P.S. § 780-118 (relating to disposition in lieu of trial or criminal punishment).
(2) A charge which is nolle prossed, dismissed, or on which a demurrer is sustained.
(3) Any prior conviction which contributed to an increase in the grade of a subsequent conviction, except for prior Driving Under the Influence of Alcohol or Controlled Substance convictions.
§ 303.9. Guideline sentence recommendation: general.
(a)(1) Basic sentence recommendations. Guideline sentence recommendations are based on the Offense Gravity Score and Prior Record Score. In most cases, the sentence recommendations are found in the Basic Sentencing Matrix (§ 303.16(a)). The Basic Sentencing Matrix specifies a range of sentences (i.e.—standard range) that shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS).
(2) Sentences for offenders under age 18 for murder, murder of unborn child, or murder of law enforcement officer. If an offender is under age 18 years at the time of the offense and the conviction occurred after June 24, 2012, the court has no authority to impose a sentence less than that required by the mandatory minimum provision established in statute and may impose a minimum sentence up to and including life (18 Pa.C.S. § 1102.1). If the court determines the convicted offender was under age 18 at the time of the offense and the conviction occurred after June 24, 2012, the court shall instead consider the Basic Sentencing Matrix for Offenders Under Age 18 Convicted of 1st or 2nd Degree Murder (§ 303.16(b)).
(b) Deadly Weapon Enhancement sentence recommendations. Except for those sentenced pursuant to 18 Pa.C.S. § 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), if the court determines that an offender possessed a deadly weapon pursuant to § 303.10(a)(1), the court shall instead consider the DWE/Possessed Matrix (§ 303.17(a)). Except for those sentenced pursuant to 18 Pa.C.S. § 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer), if the court determines that an offender used a deadly weapon pursuant to § 303.10(a)(2), the court shall instead consider the DWE/Used Matrix (§ 303.17(b)). Both enhanced matrices specify a range of sentences (i.e.—standard range) that shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS).
(c) [Youth/School] School/Youth Enhancement sentence recommendations. If the court determines that an offender violated the drug act pursuant to § 303.10(b), the court shall consider the applicable matrix in 303.18, related to [Youth,] School, Youth or [Youth and] School and Youth Enhancements. When applying the [Youth] School Enhancement, 6 months are added to the lower limit of the standard range and 12 months are added to the upper limit of the standard range. When applying the [School] Youth Enhancement, 12 months are added to the lower limit of the standard range and 24 months are added to the upper limit of the standard range. When the [Youth and School] School and Youth Enhancement is applied, 18 months are added to the bottom of the standard range and 36 months are added to the upper limit of the standard range. The range of sentences (i.e.—standard range) shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS).
(d) Aggravated and mitigated sentence recommendations. To determine the aggravated and mitigated sentence recommendations, apply § 303.13.
(e) Numeric sentence recommendations. All numbers in sentence recommendations suggest months of minimum confinement pursuant to 42 Pa.C.S. § 9755(b) (partial confinement) and § 9756(b) (total confinement).
(f) Alphabetic sentence recommendations. RS in the sentence recommendation, an abbreviation for Restorative Sanctions, suggests use of the least restrictive, non-confinement sentencing alternatives described in 42 Pa.C.S. § 9753 (determination of guilt without further penalty), § 9754 (order of probation) and § 9758 (fine). 42 Pa.C.S. § 9721(c) (mandatory restitution) is also included in RS. No specific recommendations are provided for periods of supervision for these non-confinement sentencing alternatives. Recommendations related to fines and community service are found at § 303.14(a). RIP in the sentence recommendation, an abbreviation for Restrictive Intermediate Punishments, suggests use of Restrictive Intermediate Punishments pursuant to § 303.12(a)(4).
(g) When the guideline sentence recommendation exceeds that permitted by 18 Pa.C.S. § 1103 and § 1104 (relating to sentence of imprisonment for felony and misdemeanor) and 42 Pa.C.S. § 9755(b) and § 9756(b) (relating to sentence of partial and total confinement) or other applicable statute setting the maximum term of confinement, then the statutory limit is the longest guideline sentence recommendation. For the purposes of the guidelines, the statutory limit is the longest legal minimum sentence, which is one-half the maximum allowed by law.
(h) Mandatory sentences. The court has no authority to impose a sentence less than that required by a mandatory minimum provision established in statute. When the guideline range is lower than that required by a mandatory sentencing statute, the mandatory minimum requirement supersedes the sentence recommendation. When the sentence recommendation is higher than that required by a mandatory sentencing statute, the court shall consider the guideline sentence recommendation.
(i) Mandatory sentences for which county intermediate punishment is authorized. The court shall consider the sentence recommendations pursuant to this section (§ 303.9) for an offender convicted under 30 Pa.C.S. § 5502 (Operating Watercraft Under the Influence of Alcohol or a Controlled Substance), 75 Pa.C.S. § 1543(b) (Driving While Operating Privilege is Suspended or Revoked, Certain Offenses), 75 Pa.C.S. § 3802 (Driving Under the Influence of Alcohol or Controlled Substance) or 75 Pa.C.S. § 3808(a)(2) (Illegally Operating a Motor Vehicle Not Equipped with Ignition Interlock). The court may use a Qualified Restrictive Intermediate Punishment pursuant to § 303.12(a)(6) to satisfy the mandatory minimum requirement as provided by law.
(j) Criminal Gang Enhancement sentence recommendations. If the court determines that either a crime of violence as defined in 42 Pa.C.S. § 9714(g) or a violation of 35 P.S. § 780-113(a)(30) is committed in association with a criminal gang, the court shall instead consider the Criminal Gang Enhancement. The enhancement specifies a range of sentences (i.e., standard range) that shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS). The Criminal Gang Enhancement adds 12 months to the lower limit and adds 12 months to the upper limit of the standard range.
(k) Third Degree Murder of a Victim Younger than Age 13 Enhancement sentence recommendations. If the court determines that the victim of murder in the third degree as defined in 18 Pa.C.S. § 2502(c) was less than 13 years of age at the time of the offense, the court shall instead consider the Third Degree Murder of a Victim Younger than Age 13 Enhancement. The enhancement specifies a range of sentences (i.e., standard range) that shall be considered by the court for each combination of Offense Gravity Score (OGS) and Prior Record Score (PRS). The Third Degree Murder of a Victim Younger than Age 13 Enhancement adds 24 months to the lower limit of the standard range and assigns the statutory limit as the upper limit of the standard range. The sentence imposed will be served consecutively to any other sentence the person is serving and to any other sentence imposed by the court (42 Pa.C.S. § 9711.1).
(l) Sexual Abuse of Children Enhancement sentence recommendations. If the court determines that aggravating circumstances described in § 303.10(e) are present, the court shall instead consider the applicable Sexual Abuse of Children Enhancement related to number of images possessed by the offender or the nature and character of the abuse depicted:
(1) When applying enhancement based on the number of images possessed by the offender. If the offender possessed more than 50 images to 200 images, 6 months are added to the lower limit of the standard range and 6 months are added to the upper limit of the standard range. If the offender possessed more than 200 images to 500 images, 12 months are added to the lower limit of the standard range and 12 months are added to the upper limit of the standard range. If the offender possessed more than 500 images, 18 months are added to the lower limit of the standard range and 18 months are added to the upper limit of the standard range.
(2) When applying enhancement based on the nature and character of the abuse depicted. The Offense Gravity Score is one point higher than the assignments for 18 Pa.C.S. § 6312 (relating to sexual abuse of children) listed in § 303.15.
(3) When applying enhancement when both aggravating circumstances are present. The court shall consider the enhancement with the higher sentence recommendation.
(m) Arson Enhancement sentence recommendations. If the court determines that one or more of the factors described in § 303.10(f) are present, the court shall instead consider the Arson Enhancement. When the Arson Enhancement is applied, the Offense Gravity Score is one point higher than the assignments listed for 18 Pa.C.S. § 3301 (relating to arson) in § 303.15.
(n) Human Trafficking Enhancement sentence recommendations. If the court determines that one or more of the factors described in § 303.10(g) are present, the court shall instead consider the Human Trafficking Enhancement. When the Human Trafficking Enhancement is applied, the Offense Gravity Score assignments listed for 18 Pa.C.S. § 3011 (relating to trafficking in individuals) and § 3012 (relating to involuntary servitude) in § 303.15 are increased by one point for each additional factor listed. The points for each factor (§ 303.10(g)(1)—(4)) shall be cumulative, for a maximum of four points.
(o) Domestic Violence Enhancement sentence recommendations. If the court determines that an offender committed an offense against a family or household member as described in § 303.10(h), the court shall instead consider the Domestic Violence Enhancement as described below.
(1) When the enhancement is applied, the Offense Gravity Score assignments listed in § 303.15 are increased by one point. If the court further determines that an offender knew the crime was witnessed, either through sight or sound, by a minor who is also a family or household member of the offender or the victim, the court shall consider ordering the offender to pay the costs or fees associated with the treatment of the minor for exposure to domestic violence.
(2) The following words and phrases when used in this section shall have the following meanings as defined in 23 Pa.C.S. § 6102:
(i) Family or household member—Spouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood.
(ii) Minor—An individual who is less than 18 years of age.
§ 303.10. Guideline sentence recommendations: enhancements.
(a) Deadly Weapon Enhancement.
(1) When the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Possessed Matrix (§ 303.17(a)). An offender has possessed a deadly weapon if any of the following were on the offender's person or within his immediate physical control:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or
(iii) Any device, implement, or instrumentality designed as a weapon or capable of producing death or serious bodily injury where the court determines that the offender intended to use the weapon to threaten or injure another individual.
(2) When the court determines that the offender used a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Used Matrix (§ 303.17(b)). An offender has used a deadly weapon if any of the following were employed by the offender in a way that threatened or injured another individual:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913), or
(iii) Any device, implement, or instrumentality capable of producing death or serious bodily injury.
(3) There shall be no Deadly Weapon Enhancement for the following offenses:
(i) Possessing Instruments of Crime
(ii) Prohibited Offensive Weapons
(iii) Possession of Weapon on School Property
(iv) Possession of Firearm or Other Dangerous Weapon in Court Facility
(v) Simple Assault (18 Pa.C.S. § 2701(a)(2))
(vi) Aggravated Assault (18 Pa.C.S. § 2702(a)(4))
(vii) Theft when property stolen is a firearm (18 Pa.C.S. Chapter 39)
(viii) Violations of the Pennsylvania Uniform Firearms Act
(ix) Any other offense for which possession of a deadly weapon is an element of the statutory definition
(x) If the Arson Enhancement under § 303.10(f)(1)(iii) is applied.
(4) The Deadly Weapon Enhancement shall apply to each conviction offense for which a deadly weapon is possessed or used.
(b) [Youth/School] School/Youth Enhancement.
(1) When the court determines that the offender distributed a controlled substance to a person or persons under the age of 18, the court shall consider the range of sentences described in § 303.9(c).
(2) When the court determines that the offender manufactured, delivered or possessed with intent to deliver a controlled substance within 250 feet of the real property on which is located a public or private elementary or secondary school, the court shall consider the sentence recommendations described in § 303.9(c).
(3) When the court determines both (b)(1) and (b)(2) apply, the court shall consider the sentence recommendations described in § 303.9(c).
(4) The [Youth/School] School/Youth Enhancement only applies to violations of 35 P.S. § 780-113(a)(14) and (a)(30).
(5) The [Youth/School] School/Youth Enhancement shall apply to each violation which meets the criteria above.
(c) Criminal Gang Enhancement.
(1) When the court determines that the offender committed a crime of violence as defined in 42 Pa.C.S. § 9714(g) in association with a criminal gang, the court shall instead consider the sentence recommendations described in § 303.9(j).
(2) When the court determines that the offender committed a violation of 35 P.S. § 780-113(a)(30) in association with a criminal gang, the court shall instead consider the sentence recommendations described in § 303.9(j).
(3) The Criminal Gang Enhancement shall apply to each violation which meets the criteria above.
(d) Third Degree Murder of a Victim Younger than Age 13 Enhancement.
(1) When the court determines the victim of murder in the third degree as defined in 18 Pa.C.S. § 2502(c) was less than 13 years of age at the time of the offense, the court shall instead consider the sentence recommendations described in § 303.9(k).
(2) Third Degree Murder of a Victim Younger than Age 13 Enhancement shall apply to each violation which meets the criteria above.
(3) The sentence imposed will be served consecutive to any other sentence the person is serving and to any other sentence imposed by the court (42 Pa.C.S. § 9711.1).
(e) Sexual Abuse of Children Enhancement.
(1) When the court determines that the offender violated 18 Pa.C.S. § 6312 (relating to sexual abuse of children) and that the offender possessed more than 50 images, the court shall instead consider the sentence recommendations described in § 303.9(l)(1). For purposes of this enhancement, the number of images is defined as follows:
(i) Each photograph, picture, computer generated image, or any similar visual depiction shall be considered to be one image.
(ii) Each video, video-clip, movie, or similar visual depiction shall be considered to have 50 images.
(2) When the court determines that the offender violated 18 Pa.C.S. § 6312 (relating to sexual abuse of children) and that the abuse depicted in the images possessed by the offender were of a sexual or violent nature or character, the court shall instead consider the sentence recommendations described in § 303.9(l)(2). This enhancement shall apply to any image possessed by the offender which portrays or contains any of the following:
(i) the bondage of a child;
(ii) a dangerous weapon as defined in 18 Pa.C.S. § 913 used in a sexual context;
(iii) penetration or attempted penetration of a child; or
(iv) an act which would constitute a crime under 18 Pa.C.S. Chapter 25 (relating to criminal homicide), 18 Pa.C.S. Chapter 27 (relating to assault) or 18 Pa.C.S. Chapter 31 (relating to sexual offenses).
(3) Sexual Abuse of Children Enhancement shall apply to each violation which meets the criteria above.
(f) Arson Enhancement.
(1) When the court determines that one or more of the following factors relating to arson as defined in 18 Pa.C.S. § 3301 are present, the court shall instead consider the sentence recommendations described in § 303.9(m):
(i) more than three persons were present inside the property at the time of the offense;
(ii) the fire caused more than $1,000,000 in property damage; or
(iii) the actor used, attempted to use or possessed an explosive or incendiary device as defined in 18 Pa.C.S. § 5515(a) (relating to prohibiting paramilitary training).
(2) Arson Enhancement shall apply to each violation which meets the criteria above.
(g) Human Trafficking Enhancement. When the court determines that the offender committed a violation of human trafficking as defined in 18 Pa.C.S. § 3011 (trafficking in individuals) or § 3012 (involuntary servitude) and any of the following factors were present and not otherwise included in the offense gravity score assignment in § 303.15, the court shall instead consider the sentence recommendations as described in § 303.9(n):
(1) the offender committed a violation involving sexual servitude;
(2) the victim was a minor less than 18 years of age;
(3) an additional point is added if the victim was a minor less than 13 years of age;
(4) in the course of committing a violation, the offender also violated one or more of the following offenses:
18 Pa.C.S. § 2901 (relating to kidnapping); or
18 Pa.C.S. § 3121 (relating to rape); or
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(h) Domestic Violence Enhancement. When the court determines that the offender committed an offense under Pa.C.S. Chapters 25, 27, 29, 30, 31, or 49 against a family or household member as defined in 23 Pa.C.S. § 6102, the court shall instead consider the sentence recommendation in § 303.9(o).
§ 303.11. Guideline sentence recommendation: sentencing levels.
(a) Purpose of sentence. In writing the sentencing guidelines, the Pennsylvania Commission on Sentencing strives to provide a benchmark for the judges of Pennsylvania. The sentencing guidelines provide sanctions proportionate to the severity of the crime and the severity of the offender's prior conviction record. This establishes a sentencing system with a primary focus on retribution, but one in which the recommendations allow for the fulfillment of other sentencing purposes including rehabilitation, deterrence, and incapacitation. To facilitate consideration of sentencing options consistent with the intent of the sentencing guidelines, the Commission has established five sentencing levels. Each level targets certain types of offenders, and describes ranges of sentencing options available to the court.
(b) Sentencing levels. The sentencing level is based on the standard range of the sentencing recommendation. Refer to § 303.9 to determine which sentence recommendation (i.e.—Basic, Deadly Weapon Enhancement or [Youth/School] School/Youth Enhancement) applies. When the individual or aggregate minimum sentence recommendation includes confinement in a county facility, county intermediate punishment should be considered in lieu of confinement for an eligible offender. When the individual or aggregate minimum sentence recommendation includes confinement in a state facility, county or state intermediate punishment should be considered in lieu of confinement for an eligible offender. The descriptions of the five sentencing levels are as follows:
(1) Level 1—Level 1 provides sentence recommendations for the least serious offenders with no more than one prior misdemeanor conviction, such that the standard range is limited to Restorative Sanctions (RS). The primary purpose of this level is to provide the minimal control necessary to fulfill court-ordered obligations. The following sentencing option is available:
Restorative Sanctions (§ 303.9(f)) (also see § 303.14(a)(4) for Fines/Community Service Guidelines)
(2) Level 2—Level 2 provides sentence recommendations for generally non-violent offenders and those with numerous less serious prior convictions, such that the standard range requires a county sentence but permits both incarceration and non-confinement. The standard range is defined as having an upper limit of less than 12 months and a lower limit of Restorative Sanctions (RS). The primary purposes of this level are control over the offender and restitution to victims. Treatment is recommended for drug dependent offenders. The following sentencing options are available:
Total confinement in a county facility
Partial confinement in a county facility
County Intermediate Punishment (see § 303.12(a) for eligibility criteria)
Restorative Sanctions (§ 303.9(f)) (also see § 303.14(a)(4) for Fines/Community Service Guidelines)
(3) Level 3—Level 3 provides sentence recommendations for serious offenders and those with numerous prior convictions, such that the standard range requires incarceration or County Intermediate Punishment, but in all cases permits a county sentence. The standard range is defined as having a lower limit of incarceration of less than 12 months. Included in Level 3 are those offenses for which a mandatory minimum sentence of 12 months or less applies and for which a state or county intermediate punishment sentence is authorized by statute. The primary purposes of this level are retribution and control over the offender. If eligible, treatment is recommended for drug dependent offenders in lieu of incarceration. The following sentencing options are available:
Total confinement in a state facility
Total confinement in a state facility, with participation in the State Motivational Boot Camp (see § 303.12(b) for eligibility criteria)
State Intermediate Punishment (see § 303.12(c) for eligibility criteria)
Total confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b) or for DUI if the offender is subject to the extended supervision of the court pursuant to 75 Pa.C.S. § 3804(d)
Partial confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b) or for DUI if the offender is subject to the extended supervision of the court pursuant to 75 Pa.C.S. § 3804(d)
County Intermediate Punishment (see § 303.12(a) for eligibility criteria)
(4) Level 4—Level 4 provides sentence recommendations for very serious offenders and those with numerous prior convictions, such that the standard range requires state incarceration but permits it to be served in a county facility pursuant to 42 Pa.C.S. § 9762(b). The standard range is defined as having a lower limit of incarceration of 12 months or greater but less than 30 months, but limited to offenses with an Offense Gravity Score of less than 9. Included in Level 4 are those offenses for which a mandatory minimum sentence of less than 30 months applies and for which a state or county intermediate punishment sentence is authorized by statute. The primary purposes of the sentencing options at this level are punishment and incapacitation. However, it is recognized that certain offenders at this level are permitted to serve a sentence of total confinement in a county facility, pursuant to 42 Pa.C.S. § 9762(b), and some non-violent offenders may benefit from drug and alcohol treatment. If eligible, state or county intermediate punishment is recommended for drug dependent offenders. The following sentencing options are available:
Total confinement in a state facility
Total confinement in a state facility, with participation in the State Motivational Boot Camp (see § 303.12(b) for eligibility criteria)
State Intermediate Punishment (see § 303.12(c) for eligibility criteria)
Total confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b) or for DUI if the offender is subject to the extended supervision of the court pursuant to 75 Pa.C.S. § 3804(d)
Partial confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b) or for DUI if the offender is subject to the extended supervision of the court pursuant to 75 Pa.C.S. § 3804(d)
County Intermediate Punishment (see § 303.12(a) for eligibility criteria)
(5) Level 5—Level 5 provides sentence recommendations for the most violent offenders and those with major drug convictions, such that the conviction has an Offense Gravity Score of 9 or greater or the standard range requires state incarceration in a state facility. The standard range in such a case is defined as having a lower limit of 12 months or greater. Included in Level 5 are those offenses for which a mandatory minimum sentence of 30 months or greater applies and for which a state or county intermediate punishment sentence is authorized by statute. The primary purposes of the sentencing options at this level are punishment commensurate with the seriousness of the criminal behavior and incapacitation to protect the public. If eligible, state or county intermediate punishment is recommended for drug dependent offenders. The following sentencing options are available:
Total confinement in a state facility
Total confinement in a state facility, with participation in the State Motivational Boot Camp (see § 303.12(b) for eligibility criteria)
State Intermediate Punishment (see § 303.12(c) for eligibility criteria)
Total confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b) or for DUI if the offender is subject to the extended supervision of the court pursuant to 75 Pa.C.S. § 3804(d)
Partial confinement in a county facility pursuant to 42 Pa.C.S. § 9762(b) or for DUI if the offender is subject to the extended supervision of the court pursuant to 75 Pa.C.S. § 3804(d)
County Intermediate Punishment (see § 303.12(a) for eligibility criteria)
§ 303.12. Guideline sentence recommendations: sentencing programs.
(a) County intermediate punishment (CIP).
(1) Eligibility.
(i) The following regulations and statutes govern operation of and eligibility for county intermediate punishment programs:
37 Pa. Code § 451.1 et seq.
42 Pa.C.S. § 9763, § 9773 and Chapter 98
204 Pa. Code § 303.8 and § 303.9
(ii) Sentence recommendations which include an option of County Intermediate Punishment for certain offenders are designated in the guideline matrices.
(2) The county intermediate punishment plan provides a mechanism to advise the court of the extent and availability of services and programs authorized in the county. This plan includes information on the appropriate classification and use of county programs based on program-specific requirements.
(3) County intermediate punishments classifications. In order to incorporate county intermediate punishment programs into the sentencing levels, the Commission has classified county intermediate punishment programs as Restrictive Intermediate Punishments (RIP) and restorative sanction programs. Additionally, specific county intermediate punishment programs have been identified in legislation (42 Pa.C.S. §§ 9763(c) and 9804(b)) and regulation (37 Pa. Code § 451.52) as authorized sentences for convictions relating to Operating a Watercraft Under the Influence of Alcohol or a Controlled Substance, Driving While Operating Privilege is Suspended or Revoked, Driving Under the Influence of Alcohol or Controlled Substance and Illegally Operating a Motor Vehicle Not Equipped with Ignition Interlock; the Commission has classified these programs as Qualified Restrictive Intermediate Punishments.
(4) Restrictive Intermediate Punishments (RIP). Restrictive Intermediate Punishments are defined as programs that provide for strict supervision of the offender. The county intermediate punishment board is required to develop assessment and evaluation procedures to assure the appropriate targeting of offenders. All programs must meet the minimum standards provided in the Pennsylvania Commission on Crime and Delinquency regulations (37 Pa. Code Chapter 451) for county intermediate punishments.
(i) Restrictive Intermediate Punishments (RIP) either:
(A) house the offender full or part time; or
(B) significantly restrict the offender's movement and monitor the offender's compliance with the program(s); or
(C) involve a combination of programs that meet the standards set forth above.
(ii) An offender under consideration for Restrictive Intermediate Punishments at Level 4 or Level 3 shall have a diagnostic assessment of dependency on alcohol or other drugs conducted by one of the following: the Pennsylvania Department of Drug and Alcohol Programs or a designee; the county authority on drugs and alcohol or a designee; or clinical personnel of a facility licensed by the Department of Drug and Alcohol Programs.
(iii) An offender assessed to be dependent shall be evaluated for purposes of a treatment recommendation by one of the above listed assessors. The evaluation shall take into account the level of motivation of the offender. If sentenced to a Restrictive Intermediate Punishment, the sentence shall be consistent with the level of care and length of stay prescribed in the treatment recommendation, regardless of the standard range sentencing recommendation.
(iv) An offender assessed as not in need of drug or alcohol treatment may be placed in any approved Restrictive Intermediate Punishment program. Each day of participation in a Restrictive Intermediate Punishment program or combination of programs shall be considered the equivalent of one day of total confinement for guideline sentence recommendations.
(v) The court may impose a Qualified Restrictive Intermediate Punishment in lieu of incarceration for certain convictions under 75 Pa.C.S. § 3802 (relating to Driving Under the Influence of Alcohol or Controlled Substance).
(5) Restorative sanction programs. Restorative sanction programs are the least restrictive, non-confinement intermediate punishments. Restorative sanction programs are generally used in conjunction with Restrictive Intermediate Punishments as the level of supervision is reduced, but may also be used as separate sanctions under any of the non-confinement sentencing alternatives provided in the statute (see § 303.9(f)).
(i) Restorative sanction programs:
(A) are the least restrictive in terms of constraint of offender's liberties;
(B) do not involve the housing of the offender (either full or part time); and
(C) focus on restoring the victim to pre-offense status.
(6) Qualified Restrictive Intermediate Punishments. In accordance with 42 Pa.C.S. §§ 9763(c), 9804(b) and 37 Pa. Code § 451, Qualified Restrictive Intermediate Punishment programs may be used to satisfy the mandatory minimum sentencing requirements of certain convictions under 30 Pa.C.S. § 5502(c.1) for a first, second or third offense under 30 Pa.C.S. § 5502, 75 Pa.C.S. § 1543(b), former 75 Pa.C.S. § 3731, 75 Pa.C.S. § 3804 for a first, second or third offense under 75 Pa.C.S. Chapter 38, or 75 Pa.C.S. § 3808(a)(2) Illegally Operating a Motor Vehicle Not Equipped with Ignition Interlock.
(i) Unless otherwise provided in statute, Qualified Restrictive Intermediate Punishment programs include:
(A) if the offender is determined to be in need of drug and alcohol treatment, and receives a penalty imposed under 75 Pa.C.S. § 1543(b), former 75 Pa.C.S. § 3731, 75 Pa.C.S. § 3804, or 75 Pa.C.S. § 3808(a)(2) a sentence to county intermediate punishment shall include participation in drug and alcohol treatment under 75 Pa.C.S. § 3815(c), and may be combined with:
1. a residential inpatient program or residential rehabilitative center;
2. house arrest with electronic surveillance;
3. a partial confinement program such as work release, a work camp or a halfway facility; or
4. any combination of qualified Restrictive Intermediate Punishment programs.
(B) if the offender is determined not to be in need of drug and alcohol treatment, or if the defendant receives a penalty imposed under 30 Pa.C.S. § 5502(c.1), a sentence to county intermediate punishment may only include:
1. house arrest with electronic surveillance; or
2. partial confinement programs such as work release, a work camp or a halfway facility; or
3. any combination of Qualified Restrictive Intermediate Punishment programs.
(b) State Motivational Boot Camp (BC).
(1) Eligibility.
(i) The following statute governs operation of and eligibility for the State Motivational Boot Camp: 61 Pa.C.S. Chapter 39.
(ii) Sentence recommendations which include boot camp eligible offenders are designated by the letters BC in the cells of the Basic Sentencing Matrix (§ 303.16(a)).
(2) The court shall indicate on the offender's commitment order and the Guideline Sentence Form if the offender is authorized as eligible for the boot camp program. The Department of Corrections makes the final determination as to whether the offender will be accepted into the boot camp program.
(c) State Intermediate Punishment (SIP).
(1) Eligibility.
(i) The following statute governs operation of and eligibility for State Intermediate Punishment: 61 Pa.C.S. Chapter 41.
(ii) Any person convicted of a drug-related offense for which the sentence recommendation includes total confinement in a state facility may be considered for state intermediate punishment.
(2) The court may, upon motion of the Commonwealth, commit an offender to the custody of the Department of Corrections for the purpose of evaluating whether the offender would benefit from a drug offender treatment program and whether treatment in a drug offender treatment program is appropriate.
(3) Upon receipt of a recommendation for placement in a drug offender treatment program and an individualized treatment plan from the Department of Corrections, and agreement of the attorney for the Commonwealth, the court may sentence an eligible offender to a period of 24 months of state intermediate punishment.
(4) The court may impose a consecutive period of probation. The total duration of a sentence of state intermediate punishment and consecutive probation may not exceed the maximum term for which the eligible offender could otherwise be sentenced.
§ 303.13. Guideline sentence recommendations: aggravated and mitigated circumstances.
(a) When the court determines that an aggravating circumstance(s) is present, it may impose an aggravated sentence as follows:
(1) For the Offense Gravity Scores of 9, 10, 11, 12 and 13 the court may impose a sentence that is up to 12 months longer than the upper limit of the standard range.
(2) For the Offense Gravity Score of 8, the court may impose a sentence that is up to 9 months longer than the upper limit of the standard range.
(3) For the Offense Gravity Scores of 6 and 7, the court may impose a sentence that is up to 6 months longer than the upper limit of the standard range.
(4) For the Offense Gravity Scores of 1, 2, 3, 4, and 5, the court may impose a sentence that is up to 3 months longer than the upper limit of the standard range. When imposing a fine or community service pursuant to § 303.14(a)(4), the court may impose a sentence that is up to 25 hours longer than the upper limit of the standard range.
(5) When the standard range is Restorative Sanctions (RS), the aggravated sentence recommendation is RIP 3.
(b) When the court determines that a mitigating circumstance(s) is present, it may impose a mitigated sentence as follows:
(1) For the Offense Gravity Scores of 9, 10, 11, 12, 13, and 14 the court may impose a sentence that is up to 12 months shorter than the lower limit of the standard range.
(2) For the Offense Gravity Score of 8, the court may impose a sentence that is up to 9 months shorter than the lower limit of the standard range.
(3) For the Offense Gravity Scores of 6 and 7, the court may impose a sentence that is up to 6 months shorter than the lower limit of the standard range.
(4) For the Offense Gravity Scores of 1, 2, 3, 4, and 5, the court may impose a sentence that is up to 3 months shorter than the lower limit of the standard range. When imposing a fine or community service pursuant to § 303.14(a)(4), the court may impose a sentence that is up to 25 hours shorter than the lower limit of the standard range.
(5) When the bottom of the standard range is less than or equal to 3 months of incarceration, the lower limit of the mitigated sentence recommendation is Restorative Sanctions (RS).
(6) In no case where a Deadly Weapon Enhancement is applied may the mitigated sentence recommendation be lower than 3 months.
(7) In no case where the [Youth/School] School/Youth Enhancement is applied may the mitigated sentence recommendation be lower than 6 months for the [Youth] School Enhancement, 12 months for the [School] Youth Enhancement, and 18 months for the [Youth and School] School and Youth Enhancement.
(8) In no case where the Criminal Gang Enhancement is applied may the mitigated sentence recommendation be lower than 12 months.
(9) In no case where the Third Degree Murder of a Victim Younger than Age 13 Enhancement is applied may the mitigated sentence recommendation be lower than 96 months.
(10) In no case shall a mitigated sentence for offenders under age 18 for murder of the first or second degree, murder of unborn child of the first or second degree, or murder of law enforcement officer of the first or second degree be less than the mandatory minimum established in statute (18 Pa.C.S. § 1102.1).
(11) In no case where the Sexual Abuse of Children Enhancement involving number of images is applied may the mitigated sentence recommendation be lower than 6 months for possession of greater than 50 to 200 images, be lower than 12 months for possession of greater than 200 to 500 images, and be lower than 18 months for greater than 500 images.
(c) When the court imposes an aggravated or mitigated sentence, it shall state the reasons on the record and on the Guideline Sentence Form, a copy of which is electronically transmitted to the Commission on Sentencing in the manner described in § 303.1(e).
§ 303.14. Guideline sentence recommendations—economic sanctions.
(a) Fines.
(1) Fines may be added to any guideline sentence, as authorized by law. Relevant statutes include but are not limited to:
(i) 18 Pa.C.S. § 1101 (relating to fines)
(ii) 35 P.S. § 780-113(b)—(o) (relating to controlled substances)
(iii) 42 Pa.C.S. § 9726 (relating to fine as a sentence)
(iv) 42 Pa.C.S. § 9758 (relating to imposition of a fine)
(v) 75 Pa.C.S. § 3804 (relating to fines for DUI)
(2) A fine, within the limits established by law, shall be considered by the court when the offender is convicted of 35 P.S. § 780-113(a)(12), (14) or (30), and the drug involved is any of the following: a controlled substance or counterfeit substance classified in Schedule I or II and which is a narcotic; phencyclidine, methamphetamine, or cocaine, including the isomers, salts, compounds, salts of isomers, or derivatives of phencyclidine, methamphetamine, or cocaine; or is in excess of one thousand pounds of marijuana. Such fine shall be of an amount that is at least sufficient to exhaust the assets utilized in, and the proceeds obtained by the offender from, the illegal possession, manufacture, or distribution of controlled substances. Such fine shall not include assets concerning which the attorney for the Commonwealth has filed a forfeiture petition or concerning which he has given notice to the court of his intent to file a forfeiture petition.
(3) Fines may be utilized as part of a county intermediate punishment sentence or as a non-confinement sentencing alternative (see restorative sanction § 303.9(f)).
(4) Fines/Community Service Guidelines. The following guidelines shall be considered by the court when ordering fines or community service as a Restorative Sanction without confinement. Community service, when ordered, is imposed as a condition of probation. A fine, when ordered, is imposed as a non-confinement sentencing alternative or as a condition of probation. The fines guidelines are determined by multiplying the number of hours recommended by the offender's hourly wage or the current minimum wage, whichever is higher, but may not exceed the statutory maximum fine authorized by law
(A) OGS 1
i. PRS 0 25 hours-50 hours
ii. PRS 1 50 hours-75 hours
iii. PRS 2 75 hours-100 hours
iv. PRS 3 100 hours-125 hours
v. PRS 4 125 hours-150 hours
vi. PRS 5 150 hours-175 hours
(B) OGS 2
i. PRS 0 25 hours-50 hours
ii. PRS 1 75 hours-100 hours
iii. PRS 2 100 hours-125 hours
iv. PRS 3 125 hours-150 hours
v. PRS 4 150 hours-175 hours
(C) OGS 3
i. PRS 0 50 hours-75 hours
ii. PRS 1 150 hours-175 hours
iii. PRS 2 225 hours-250 hours
iv. PRS 3 300 hours-325 hours
(D) OGS 4
i. PRS 0 100 hours-125 hours
ii. PRS 1 225 hours-250 hours
iii. PRS 2 300 hours-325 hours
(E) OGS 5
i. PRS 0 225 hours-250 hours
(b) Costs and fees.
(1) Costs and fees shall be added to any guideline sentence, as required by law. Relevant statutes include but are not limited to:
(i) 18 P.S. § 11.1101 (relating to Crime Victim's Compensation Fund costs)
(ii) 18 P.S. § 11.1102 (relating to costs of offender supervision programs)
(iii) 42 Pa.C.S. § 1725.3 (relating to criminal laboratory user fees)
(iv) 42 Pa.C.S. § 9721(c.1) (relating to mandatory payment of costs)
(v) 42 Pa.C.S. § 9728(b.2) (relating to mandatory payment of costs)
(2) Costs and fees, in addition to those required by law, may be added to any guideline sentence, as authorized by law. Relevant statutes include but are not limited to:
(i) 18 Pa.C.S. § 1109 (relating to costs of any reward)
(ii) 42 Pa.C.S. § 1725 (relating to establishment of fees and charges)
(iii) 42 Pa.C.S. § 1725.1 (relating to costs)
(iv) 42 Pa.C.S. § 1725.2 (relating to assumption of summary conviction costs by county)
(v) 42 Pa.C.S. § 1726.1 (relating to forensic exam costs for sexual offenses)
(vi) 42 Pa.C.S. § 1726.2 (relating to criminal prosecution involving domestic violence)
(vii) 42 Pa.C.S. § 9728(g) (relating to costs, etc.)
(3) Costs and fees, in addition to those required by law, shall be considered by the court pursuant to the Domestic Violence Enhancement (§ 303.9(o)), as authorized by law.
(c) Restitution
(1) Restitution shall be added to any guideline sentence, as authorized by law. Relevant statutes include but are not limited to:
(i) 18 Pa.C.S. § 1106 (relating to injuries to person or property)
(ii) 18 Pa.C.S. § 1107 (relating to theft of timber)
(iii) 18 Pa.C.S. § 1107.1 (relating to restitution for identity theft)
(iv) 18 Pa.C.S. § 1110 (relating to restitution for cleanup of clandestine laboratories)
(v) 18 P.S. § 11.1302 (relating to restitution to the Office of Victim Services)
(vi) 42 Pa.C.S. § 9721(c) (relating to mandatory restitution)
(2) Restitution may be imposed as a direct sentence or as a condition of probation or intermediate punishment, and is considered a non-confinement sentencing alternative (see restorative sanction § 303.9(f)).
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