GENERAL ASSEMBLY
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
COMMISSION ON SENTENCING
PART VIII. CRIMINAL SENTENCING
[204 PA. CODE CHS. 307 AND 307a]
Proposed Resentencing Guidelines, Amendment 2; Proposed New Resentencing Guidelines for 8th Edition Sentencing Guidelines
[53 Pa.B. 256]
[Saturday, January 7, 2023]The Pennsylvania Commission on Sentencing hereby publishes for public comment proposed Amendment 2 to the Resentencing Guidelines, 204 Pa. Code §§ 307.1—307.4, for use with the 7th Edition Sentencing Guidelines; and proposed new Resentencing Guidelines, 204 Pa. Code §§ 307a.1—307a.4, for use with the 8th Edition Sentencing Guidelines. The proposed Amendment 2 to the Resentencing Guidelines, relabeled as Resentencing Guidelines for 7th Edition Sentencing Guidelines, is set forth in Annex A. The proposed new Resentencing Guidelines for 8th Edition Sentencing Guidelines, is set forth in Annex B.
The Commission adopted Resentencing Guidelines, Amendment 1, on September 10, 2020, and published the same in the Pennsylvania Bulletin on September 26, 2020 (50 Pa.B. 5441). Resentencing Guidelines, Amendment 1 apply to sentences of probation imposed on or after January 1, 2021, and that are subsequently revoked for technical violations and conviction violations and resentenced. The Resentencing Guidelines, as adopted June 13, 2019 and effective January 1, 2020, remain applicable to sentences of probation imposed on or after January 1, 2020 but prior to January 1, 2021, and that are subsequently revoked and resentenced effective January 1, 2024.
On December 8, 2022, the Commission approved for the purpose of public comment a proposed amendment to provide for resentencing guidelines consistent with the corresponding edition of the sentencing guidelines. In the case of the proposal related to Chapter 307, the proposed amendment limits the application of the resentencing guidelines to probation sentences imposed under the 7th Edition Sentencing Guidelines and subsequently revoked. In the case of the proposal related to a new Chapter 307a, the proposed addition limits the application of the new resentencing guidelines to probation sentences imposed under the proposed 8th Edition Sentencing Guidelines and subsequently revoked.
In accordance with 42 Pa.C.S. § 2155 (relating to publication of guidelines for sentencing, resentencing and parole, risk assessment instument and recommitment ranges following revocation), the Commission shall publish in the Pennsylvania Bulletin the proposed sentencing guidelines 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:
Pennsylvania District Attorneys Association
Chiefs of Police Associations
Fraternal Order of Police
Public Defenders Organization
Law School faculty members
Pennsylvania Parole Board
Pennsylvania Department of Corrections
Pennsylvania Bar Association
Pennsylvania Wardens Association
Pennsylvania Association on Probation, Parole and
Corrections
Pennsylvania Conference of State Trial Judges
Any other interested person or organizationThe Commission has scheduled the following hearings to receive public comment on the proposed sentencing guidelines:
Justice Juanita Kidd Stout Center for Criminal Justice
Courtroom 507
1301 Filbert Street
Philadelphia, PA
Wednesday, February 8, 2023, at 1:30 p.m.Northampton County Courthouse
Courtroom 1
669 Washington Street
Easton, PA
Friday, February 17, 2023, at 10:00 a.m.Duquesne University Thomas R. Kline School of Law
208 Hanley Hall
900 Locust Street
Pittsburgh, PA
Wednesday, February 22, 2023, at 1:30 p.m.Pennsylvania Department of Corrections (remote
hearing)
Registration open to the public; testimony limited to incarcerated individuals
Zoom Webinar (registration for public access):
https://bit.ly/DOCPubHrng2023Feb27
Monday, February 27, 2023, at 10:00 a.m.Erie County Courthouse
Courtroom D-214
140 West 6th Street
Erie, PA
Thursday, March 2, 2023, at 10:00 a.m.K. Leroy Irvis Office Building (hybrid hearing)
Room 523
450 Commonwealth Avenue
Harrisburg, PA
Zoom Webinar (registration for public access):
https://bit.ly/PCSPubHrng2023March8
Wednesday, March 8, 2023, at 9:00 a.m.Those wishing to attend or testify at Zoom Webinar hearings may register at the link provided. Those wishing to testify in person may register by contacting the Commission (Cathy Dittman, 814-863-5729, cwd2@ psu.edu).
Persons or organizations wishing to testify in-person or via Zoom Webinar are asked to register and provide an electronic copy of any testimony at least five business days prior to the hearing. 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. Forward all testimony and documents to Cathy Dittman (cwd2@psu.edu).
JUDGE TAMARA R. BERNSTEIN,
Chair
Commentary on Annex A This Commentary provides selected highlights of the amendment to the Resentencing Guidelines, 204 Pa. Code §§ 307.1—307.4, for use with the 7th Edition Sentencing Guidelines. The proposed amendment to Chapter 307 limits the application of the resentencing guidelines to probation sentences imposed under the 7th Edition Sentencing Guidelines and subsequently revoked. The proposed amendment to Chapter 307 is set forth in Annex A.
Provided below is a description of the revisions by section.
Section 307.1. Preliminary provisions
Revisions to this section include editorial changes to several definitions, by inserting common abbreviations and revising the references to the 7th Edition Sentencing Guidelines.
Section 307.2. Resentencing guidelines standards
Revisions to this section include an editorial change to the title of the section and revising the references to the 7th Edition Sentencing Guidelines and modifying the description of the effective dates of the amendments to the resentencing guidelines, linking the resentencing guidelines to the corresponding amendment of the 7th Edition Sentencing Guidelines.
Section 307.3. Procedure for determining resentencing guidelines
Revisions to this section include an editorial change to the title of the section.
Section 307.4. Resentencing guidelines recommendations
Revisions to this section include an editorial change to the title of the section and revising the reference to the 7th Edition Sentencing Guidelines.
Commentary on Annex B This Commentary provides selected highlights of the addition of new Resentencing Guidelines, 204 Pa. Code §§ 307a.1—307a.4, for use with the 8th Edition Sentencing Guidelines. The proposed addition of Chapter 307a limits the application of the resentencing guidelines to probation sentences imposed under the 8th Edition Sentencing Guidelines and subsequently revoked. The proposed addition of Chapter 307a is set forth in Annex B.
Provided below is a description of the revisions by section.
Section 307a.1. Preliminary provisions
This section includes authorization and definitions related to the application of resentencing guidelines for use with the proposed 8th Edition Sentencing Guidelines.
Section 307a.2. Resentencing guidelines standards
This section includes standards for the application of resentencing guidelines to probation sentences imposed under the 8th Edition Sentencing Guidelines and subsequently revoked, as well as providing the effective date of the resentencing guidelines.
Section 307a.3. Procedure for determining resentencing guidelines
This section includes the procedures for determining the resentence recommendation for technical violations and conviction violations for probation sentences imposed under the 8th Edition Sentencing Guidelines and subsequently revoked.
Section 307a.4. Resentencing guidelines recommendations
This section provides general recommendations for consideration at resentencing.
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
CHAPTER 307. RESENTENCING GUIDELINES
[, AMENDMENT 1] for 7th EDITION SENTENCING GUIDELINES§ 307.1. Preliminary provisions.
(a) Authorization.
(1) As authorized by 42 Pa.C.S. § 2154.4 (relating to adoption of guidelines for resentencing), the Commission shall adopt guidelines that shall be considered by the court when resentencing an offender following the revocation of probation.
(2) The Resentencing Guidelines shall take into account:
(i) factors considered in adopting the sentencing guidelines;
(ii) the seriousness of the violation; and
(iii) the rehabilitative needs of the defendant.
(b) Definitions. For the purposes of this chapter , the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otterwise:
''Conviction.'' A finding of guilty or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony in a court, whether or not judgement of sentence has been imposed.
''Court.'' A court of record.
''Judicial proceeding.'' A sentencing hearing in which all offenses for which the offender is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.
''OGS—Offense gravity score [(OGS)].'' An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense (see: 204 Pa. Code [§ 303.3 and § 303.15] Chapter 303).
''OTN—Offense tracking number [(OTN)].'' A unique identifying number assigned to an entire set of charges related to a conviction. An OTN is generally assigned by the court at the time of arraignment.
[''Prior record score (PRS).'' A category in the sentencing guidelines reflecting the seriousness of the criminal history of an offender (see: 204 Pa. Code § 303.3 and § 303.15).]
''PRS—Prior record score.'' A category in the sentencing guidelines reflecting the seriousness of the criminal history of an offender (see: 204 Pa. Code Chapter 303).
''Probation.'' A sentencing alternative as provided in 42 Pa.C.S. § 9722 (relating to order of probation) and imposed pursuant to 42 Pa.C.S. § 9754 (relating to order of probation); conditions of probation, pursuant to 42 Pa.C.S. § 9763 (relating to conditions of probation), include conditions generally subsection (b), restrictive DUI probation conditions subsection (c), and restrictive conditions of probation subsection (d).
''Resentence.'' A new sentence imposed following the revocation of probation. Upon revocation, the sentencing alternatives available to the court shall be the same as were available at the time of the initial sentence, due consideration given to time spent serving the order of probation.
''Revocation.'' The termination of an order of probation, upon proof of a violation of specific conditions of the order or sentence, as provided in 42 Pa.C.S. §§ 9771 and 9771.1 (relating to modification or revocation of order of probation; and court-imposed sanctions for violating probation).
''Risk assessment instrument.'' An empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific 'generation' of development:
1st generation. ''Professional judgment,'' with assessments based on training and experience;2nd generation. ''Risk assessment,'' an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;3rd generation. ''Risk-needs assessment (RNA),'' an actuarial assessment of static and dynamic factors and changing circumstances, such as relationships, employment, and substance abuse, used to estimate risk of re-offense and to assess criminogenic needs to be addressed through treatment and supervision;4th generation. ''Risk-needs-responsivity (RNR) assessment,'' an actuarial assessment of static and dynamic factors used to match the level of service to the offender's risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities, and strengths of the offender.''SID—State identification number [(SID)].'' A unique number associated with each offender based on fingerprints. The Commission requires the inclusion of the SID as part of the record in the completed Guideline Sentence Form ([§ 303.1(f)] see: 204 Pa. Code Chapter 303).
''Sentencing Guidelines Software Web Application (SGS Web).'' A JNET-based application operated by the Commission which includes the modules for Sentencing Guidelines and for Resentencing Guidelines. SGS Web serves as the source of data for the original reported sentence and associated information and the reporting source for revocations and resentences.
''Violation.'' A finding by a court, following a hearing, that the offender failed to comply with terms and conditions of an order of probation.
''Conviction violation.'' Commission of a new offense during the period of probation, resulting in a conviction for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.''Technical violation.'' Failure to comply with the terms and conditions of an order of probation, other than by the commission of a new offense of which the offender is convicted in a court of record.§ 307.2. Resentencing [Guidelines] guidelines standards.
(a) The court shall consider the Resentencing Guidelines in determining the appropriate resentence upon a revocation of probation.
(b) The Resentencing Guidelines shall apply to revocations of probation for all offenses committed on or after January 1, 2020. Amendments to the Resentencing Guidelines shall apply to revocations of probation for all offenses committed on or after the effective date of the amendment. [Amendment 1 is effective January 1, 2021.]
(1) The initial Resentencing Guidelines, effective January 1, 2020, apply to all offenses committed on or after January 1, 2020 but prior to January 1, 2021, for which the 7th Edition, Amendment 5 Sentencing Guidelines applied.
(2) Resentencing Guidelines, Amendment 1, effective January 1, 2021, apply to all offenses committed on or after January 1, 2021 but prior to January 1, 2024, for which the 7th Edition, Amendment 6 Sentencing Guidelines applied.
(3) Resentencing Guidelines for the 8th Edition Sentencing Guidelines, effective January 1, 2024, as provided in Chapter 307a, apply to all offenses committed on or after January 1, 2024, for which the 8th Edition Sentencing Guidelines applied.
(c) Upon revocation of probation, all sentencing alternatives available to the court at the time of the initial sentence shall be available to the court for resentencing.
(d) In every case in which a court of record imposes a resentence for a felony or misdemeanor, the court shall make as a part of the record and disclose in open court at the time of resentencing, a statement of the reason or reasons for the revocation and for the resentence imposed. In every case where a court of record imposes a resentence outside the Resentencing 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 204 Pa. Code [§ 303.1(e)] Chapter 303 (relating to resentencing guidelines).
(e) 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 report all revocations of probation 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.
§ 307.3. Procedure for determining the [guideline resentence] resentencing guidelines.
(a) For a technical violation resulting in the revocation of an order of probation, the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines), with consideration given to any service of the original sentence.
(b) For a conviction violation resulting in revocation of an order of probation, the resentencing guidelines shall begin with the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303, and include consideration of the following:
(1) If the PRS category of the initial sentencing guidelines is PRS 0 through PRS 4, the PRS is increased by one category;
(2) If the PRS category of the initial sentencing guidelines is PRS 5, RFEL, or REVOC, there is no change to the PRS category. Consideration shall be given to any service of the original sentence.
(c) If the revocation of an order of probation is related to both a technical violation and a conviction violation, the resentencing guidelines for the conviction violation apply.
§ 307.4. [Guideline resentence] Resentencing guidelines recommendations.
(a) Prior to resentencing, the Commission recommends the court obtain additional information via a risk-needs assessment or a risk-needs-responsivity assessment to identify any rehabilitative needs that may be addressed in a resentence.
(b) Guidelines resentencing recommendations relating to sentencing level, sentencing programs, aggravated and mitigated circumstances, and economic sanctions shall be the same as those provided for guideline sentence recommendations pursuant to 204 Pa. Code [§§ 303.11, 303.12, 303.13, and 303.14] Chapter 303 (relating to resentencing guidelines).
Annex B
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
CHAPTER 307a. RESENTENCING GUIDELINES for 8th EDITION SENTENCING GUIDELINES Sec.
307a.1. Preliminary provisions. 307a.2. Resentencing guidelines standards. 307a.3. Procedure for determining the resentencing guidelines. 307a.4. Resentencing guidelines recommendations. § 307a.1. Preliminary provisions.
(a) Authorization.
(1) As authorized by 42 Pa.C.S. § 2154.4 (relating to adoption of guidelines for resentencing), the Commission shall adopt guidelines that shall be considered by the court when resentencing an offender following the revocation of probation.
(2) The Resentencing Guidelines shall take into account:
(i) factors considered in adopting the sentencing guidelines;
(ii) the seriousness of the violation; and
(iii) the rehabilitative needs of the defendant.
(b) Definitions. For the purposes of this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise:
''Conviction.'' A finding of guilty or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony in a court, whether or not judgement of sentence has been imposed.
''Court.'' A court of record.
''Judicial proceeding.'' A sentencing hearing in which all offenses for which the offender is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.
''OGS—Offense gravity score.'' An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense (see: 204 Pa. Code Chapter 303a).
''OTN—Offense tracking number.'' A unique identifying number assigned to an entire set of charges related to a conviction. An OTN is generally assigned by the court at the time of arraignment.
''PRS—Prior record score.'' category in the sentencing guidelines reflecting the seriousness of the criminal history of an offender (see: 204 Pa. Code Chapter 303a).
''Probation.'' A sentencing alternative as provided in 42 Pa.C.S. § 9722 and imposed pursuant to 42 Pa.C.S. § 9754; conditions of probation, pursuant to 42 Pa.C.S. § 9763, include conditions generally (b), restrictive DUI probation conditions (c), and restrictive conditions of probation (d).
''Resentence.'' A new sentence imposed following the revocation of probation. Upon revocation, the sentencing alternatives available to the court shall be the same as were available at the time of the initial sentence, due consideration given to time spent serving the order of probation.
''Revocation.'' The termination of an order of probation, upon proof of a violation of specific conditions of the order or sentence, as provided in 42 Pa.C.S. §§ 9771 and 9771.1 (relating to revocation of probation).
''Risk assessment instrument.'' An empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific 'generation' of development:
1st generation. ''Professional judgment,'' with assessments based on training and experience;2nd generation. ''Risk assessment,'' an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;3rd generation. ''Risk-needs assessment (RNA),'' an actuarial assessment of static and dynamic factors and changing circumstances, such as relationships, employment, and substance abuse, used to estimate risk of re-offense and to assess criminogenic needs to be addressed through treatment and supervision;4th generation. ''Risk-needs-responsivity (RNR) assessment,'' an actuarial assessment of static and dynamic factors used to match the level of service to the offender's risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities, and strengths of the offender.''SID—State identification number.'' A unique number associated with each offender based on fingerprints. The Commission requires the inclusion of the SID as part of the record in the completed Guideline Sentence Form (see: 204 Pa. Code Chapter 303a).
''Sentencing Guidelines Software Web Application (SGS Web).'' A JNET-based application operated by the Commission which includes the modules for Sentencing Guidelines and for Resentencing Guidelines. SGS Web serves as the source of data for the original reported sentence and associated information and the reporting source for revocations and resentences.
''Violation.'' A finding by a court, following a hearing, that the offender failed to comply with terms and conditions of an order of probation.
''Conviction violation.'' Commission of a new offense during the period of probation, resulting in a conviction for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.
''Technical violation.'' Failure to comply with the terms and conditions of an order of probation, other than by the commission of a new offense of which the offender is convicted in a court of record.
§ 307a.2. Resentencing guidelines standards.
(a) The court shall consider the Resentencing Guidelines in determining the appropriate resentence upon a revocation of probation.
(b) The Resentencing Guidelines shall apply to revocations of probation for all offenses committed on or after January 1, 2020. Amendments to the Resentencing Guidelines shall apply to revocations of probation for all offenses committed on or after the effective date of the amendment.
(1) The initial Resentencing Guidelines, effective January 1, 2020, as provided in Chapter 307, apply to all offenses committed on or after January 1, 2020 but prior to January 1, 2021, for which the 7th Edition, Amendment 5 Sentencing Guidelines applied.
(2) Resentencing Guidelines, Amendment 1, effective January 1, 2021, as provided in Chapter 307, apply to all offenses committed on or after January 1, 2021 but prior to January 1, 2024, for which the 7th Edition, Amendment 6 Sentencing Guidelines applied.
(3) Resentencing Guidelines for the 8th Edition Sentencing Guidelines, effective January 1, 2024, apply to all offenses committed on or after January 1, 2024, for which the 8th Edition Sentencing Guidelines applied.
(c) Upon revocation of probation, all sentencing alternatives available to the court at the time of the initial sentence shall be available to the court for resentencing.
(d) In every case in which a court of record imposes a resentence for a felony or misdemeanor, the court shall make as a part of the record and disclose in open court at the time of resentencing, a statement of the reason or reasons for the revocation and for the resentence imposed. In every case where a court of record imposes a resentence outside the Resentencing 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 Commission in the manner described in 204 Pa. Code Chapter 303a (relating to sentencing guidelines).
(e) 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 report all revocations of probation 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.
§ 307a.3. Procedure for determining the resentencing guidelines.
(a) For a technical violation resulting in the revocation of an order of probation, the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303a (relating to sentencing guidelines), with consideration given to any service of the original sentence.
(b) For a conviction violation resulting in revocation of an order of probation, the resentencing guidelines shall begin with the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303a, with the OGS assignment increased by one point. The highest OGS assignment permitted is OGS 30. Consideration shall be given to any service of the original sentence.
(c) If the revocation of an order of probation is related to both a technical violation and a conviction violation, the resentencing guidelines for the conviction violation apply.
§ 307a.4. Resentencing guidelines recommendations.
(a) Prior to resentencing, the Commission recommends the court obtain additional information via a risk-needs assessment or a risk-needs-responsivity assessment to identify any rehabilitative needs that may be addressed in a resentence.
(b) Guidelines resentencing recommendations relating to sentencing level, sentencing programs, aggravated and mitigated circumstances, and economic sanctions shall be the same as those provided for guideline sentence recommendations pursuant to 204 Pa. Code Chapter 303a (relating to sentencing guidelines).
[Pa.B. Doc. No. 23-31. Filed for public inspection January 6, 2023, 9:00 a.m.]
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