THE GENERAL ASSEMBLY
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
COMMISSION ON SENTENCING
[ 204 PA. CODE CH. 307 ]
Proposed Resentencing Guidelines, Amendment 1
[50 Pa.B. 3305]
[Saturday, July 4, 2020]The Pennsylvania Commission on Sentencing hereby publishes for public comment proposed Resentencing Guidelines, Amendment 1, 204 Pa. Code §§ 307.1—307.4. The proposed Resentencing Guidelines, Amendment 1, is set forth in Annex A.
The Commission adopted Resentencing Guidelines on June 13, 2019. Effective January 1, 2020, the Resentencing Guidelines apply to sentences of probation, county intermediate punishment, and state intermediate punishment imposed on or after January 1, 2020 and that are subsequently revoked for technical violations and conviction violations and resentenced.
However, prior to the effective date of January 1, 2020, Act 115 of 2019 was enacted. Effective December 18, 2019, the sentencing alternatives of county intermediate punishment and state intermediate punishment were repealed. The Act reassigns county intermediate punishment programs as restrictive conditions of probation and created the State Drug Treatment Program under the authority of the Department of Corrections as a replacement for state intermediate punishment.
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 and are subsequently revoked and resentenced.
On June 4, 2020, the Commission approved for the purpose of public comment a proposed Resentencing Guidelines, Amendment 1, primarily to address the repeal of county and state intermediate punishment under Act 115 of 2019. Additionally, in response to practitioners, the Commission incorporated stronger language to consider time served when resentencing offenders.
In accordance with 42 Pa.C.S. § 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 Parole Board
(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 has scheduled the following public hearings, to be held using Zoom Webinar, and providing limited opportunities for on-site testimony consistent with COVID-19 social distancing safeguards:
Hearing I.
Date: Tuesday, August 18, 2020 Time: 10:00 a.m. Zoom: Webinar Registration Link: https://bit.ly/PCSPUBSEN1 Onsite Location: McKeesport Daily News Building,
409 Walnut Street,
McKeesport, PA 15132Hearing II.
Date: Thursday, August 20, 2020 Time: 2:00 p.m. Zoom: Webinar Registration Link: https://bit.ly/PCSPUBSEN2 Onsite Location: Pennsylvania Commission on Sentencing (Harrisburg Office)
530 Irvis Building, Capitol Complex, Harrisburg, PA 17120-2218Those wishing to attend the public hearing and/or testify via Zoom Webinar may register at the link provided above. Those wishing to testify in person may register by contacting the Commission (Cathy Dittman—814-863-5729 or cwd2@psu.edu) to schedule a specific time for on-site testimony.
Persons or organizations wishing to testify are asked to register at least five business days prior to the hearing and 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. Forward all testimony and documents to Cathy Dittman (CWD2@PSU.EDU).
The Commission will evaluate the proposed Amendment 1 to the 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, September 10, 2020.
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.
REPRESENTATIVE TODD STEPHENS,
Chair
Commentary on Annex A This Commentary provides selected highlights of the proposed Resentencing Guidelines, Amendment 1. The proposed Amendment is set forth in Annex A.
Revisions to § 307.1—Preliminary provisions
Act 115 of 2019 repealed county intermediate punishment and state intermediate punishment as sentencing alternatives effective December 18, 2019. Definitions and references to these alternatives were removed under (a) and (b). Under the definition of 'probation' in (b), language was added to reference restrictive conditions of probation and restrictive DUI probation conditions. Under the definition of 'resentence,' language was incorporated to include due consideration of time served under probation. Technical changes were made in numbering in (b).
Revisions to § 307.2—Resentencing Guidelines standards
Act 115 of 2019 repealed county intermediate punishment and state intermediate punishment as sentencing alternatives effective December 18, 2019. References to those alternatives were removed.
Resentencing Guidelines were effective January 1, 2020 and applied to all sentences of probation, county intermediate punishment, and state intermediate punishment that were revoked for technical violations or conviction violations and subsequently resentenced. Resentencing Guidelines, Amendment 1, continue to apply to sentences of probation that are revoked for technical or conviction violations and subsequently resentenced. It includes sentences imposed with restrictive conditions of probation.
Revisions to § 307.3—Procedure for determining the guideline resentence
Act 115 of 2019 repealed county intermediate punishment and state intermediate punishment as sentencing alternatives effective December 18, 2019. References to those alternatives were removed.
Language was incorporated to consider time served under the original sentence when resentencing offenders
Revisions to § 307.4—Guideline resentence recommendations
No changes.
Annex A
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART VIII. CRIMINAL SENTENCING
CHAPTER 307. RESENTENCING GUIDELINES, AMENDMENT 1 § 307.1. Preliminary provisions.
(a) Authorization.
(1) As authorized by 42 Pa.C.S. § 2154.4 (relating to guidelines for resentencing), the Commission shall adopt guidelines that shall be considered by the court when resentencing an offender following the revocation of probation[, county intermediate punishment, or state intermediate punishment].
(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:
[(1)] ''Conviction.'' A finding of guilty or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.
[(2) ''County intermediate punishment (CIP).'' A sentencing alternative as provided in 42 Pa.C.S. Chapter 98 and imposed pursuant to 42 Pa.C.S. § 9763.
(3)] ''Court.'' A court of record.
[(4)] ''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.
[(5)] ''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).
[(6)] ''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.
[(7)] ''Prior record score (PRS).'' A category in the sentencing guidelines reflecting the seriousness of the criminal history of an offender (see: 204 Pa. Code § 303.4).
[(8)] ''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).
[(9)] ''Resentence.'' A new sentence imposed following the revocation of probation[, county intermediate punishment, or state intermediate punishment]. 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.
[(10)] ''Revocation.'' The termination of an order of probation [or a sentence of county intermediate punishment or state intermediate punishment], 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)[, 42 Pa.C.S. § 9773 (relating to revocation of county intermediate punishment), and 42 Pa.C.S. § 9774 (relating to revocation of state intermediate punishment)].
[(11)] ''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:
[(i)] 1st generation. ''Professional judgment,'' with assessments based on training and experience;
[(ii)] 2nd generation. ''Risk assessment,'' an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;
[(iii)] 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;
[(iv)] 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.
[(12)] ''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.
[(13)] ''State identification number (SID).'' A unique number associated with each offender based on fingerprints. The Commission requires the inclusion of SID as part of the record in the completed Guideline Sentence Form (§ 303.1(f)).
[(14) ''State intermediate punishment (SIP).'' A sentencing alternative as provided in 61 Pa.C.S. Chapter 41 and imposed pursuant to 61 Pa.C.S. § 4104(d).
(15)] ''Violation.'' A finding by a court of record, following a hearing, that the offender failed to comply with terms and conditions of an order of probation [or a sentence of county intermediate punishment or state intermediate punishment].
[(i)] ''Technical violation.'' Failure to comply with the terms and conditions of an order of probation [or a sentence of county intermediate punishment or state intermediate punishment], other than by the commission of a new offense of which the offender is convicted in a court of record.
[(ii)] ''Conviction violation.'' Commission of a new offense during the period of probation[, county intermediate punishment, or state intermediate punishment], resulting in a conviction for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.
§ 307.2. Resentencing Guidelines standards.
(a) The court shall consider the Resentencing Guidelines in determining the appropriate resentence upon a revocation of probation[, county intermediate punishment, or state intermediate punishment].
(b) The Resentencing Guidelines shall apply to revocations of probation[, county intermediate punishment, and state intermediate punishment] for all offenses committed on or after January 1, 2020. Amendments to the Resentencing Guidelines shall apply to revocations of probation[, county intermediate punishment, and state intermediate punishment] for all offenses committed on or after the effective date of the amendment.
(c) Upon revocation of probation[, county intermediate punishment, or state intermediate punishment], 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).
(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[, 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.
§ 307.3. Procedure for determining the guideline resentence.
(a) For a technical violation resulting in the revocation of an order of probation [or a sentence of county intermediate punishment or state intermediate punishment], 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 [or a sentence of county intermediate punishment or state intermediate punishment], the resentencing guidelines shall begin with the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines), 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 [or a sentence of county intermediate punishment or state intermediate punishment] is related to both a technical violation and a conviction violation, the resentencing guidelines for the conviction violation apply.
§ 307.4. Guideline resentence 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) Guideline resentencing recommendations relating to sentencing level, sentencing programs, aggravated and mitigated circumstances, and economic sanctions shall the same as those provided for guideline sentence recommendations pursuant to 204 Pa. Code §§ 303.11, 303.12, 303.13, and 303.14.
[Pa.B. Doc. No. 20-844. Filed for public inspection July 2, 2020, 9:00 a.m.]
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