§ 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, a common starting point with a range of recommendations for the typical offender. 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.
The sentencing guidelines provide recommendations regarding the type of disposition, the duration of confinement and/or community supervision, the intensity of conditions, and the requirements associated with restitution and other economic sanctions. While the sentencing guidelines provide a retributive framework for sentencing, other factors may impact the sentencing decision and other information may assist the court in determining an appropriate and individualized sentence. These include: (1) mandatory minimum sentencing provisions, which when applicable supersede the sentencing guidelines recommendations; (2) diagnostic evaluations of dependency on alcohol and other drugs and clinically prescribed treatment; and (3) the use of validated assessments of risk, needs and responsivity and related evidence-based practices to guide decisions related to the intensity and duration of community supervision.
While courts are required to consider the guidelines at sentencing, Pennsylvania’s sentencing guidelines are advisory: ‘‘Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgement by the Court in imposing a sentence. . .they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, than require a particular sentence.’’ Com. v. Walls (926 A.2d 957) (Pa., 2007).
The imposition of a sentence involves decisions beyond disposition and duration, such as place of confinement, paroling authority and intensity of community supervision. In many cases the court is required to determine the eligibility and appropriateness of individuals for program participation, including as provided in § 303.12: county intermediate punishment programs as restrictive conditions of probation, numerous state correctional programs operated by the Pennsylvania Department of Corrections, and reentry programs authorized at the time of sentencing. Additionally, the specialized jurisdiction of problem-solving courts, as authorized by 42 Pa.C.S. § 916, provide an avenue for the use of court-supervised individualized treatment programs and services.
(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, Enhancement) applies. When the individual or aggregate minimum sentence recommendation includes confinement in a county facility, the court should consider the guidelines to determine the appropriateness and eligibility for probation with restrictive conditions as described in § 303.12(a) and county reentry as described in § 303.12(f)(1). When the individual or aggregate minimum sentence recommendation includes confinement in a state facility, the court should consider the guidelines to determine the appropriateness and eligibility for certain correctional programs, including State Motivational Boot Camp, State Drug Treatment Program, Recidivism Risk Reduction Incentive Program and Short Sentence Parole as described in § 303.12(b)—(e). 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 non-confinement sentencing recommendations as provided in § 303.9(f). The primary purpose of this level is to provide the minimal control necessary to fulfill court-ordered obligations.
(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 non-confinement sentencing recommendations as provided in § 303.9(f) and confinement sentencing recommendations served in a county facility as provided in § 303.9(e)(2), (3) and (4). 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.
(3) Level 3—Level 3 provides sentence recommendations for serious offenders and those with numerous prior convictions, such that the standard range requires confinement sentencing recommendations as provided in § 303.9(e), 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 the use of restrictive DUI probation conditions as provided in § 303.9(e)(4)(i) 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.
(4) Level 4—Level 4 provides sentence recommendations for very serious offenders and those with numerous prior convictions, such that the standard range requires confinement sentencing recommendations as provided in § 303.9(e) but permits it to be served in a county facility as provided in § 303.9(e)(2)(i). 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 the use of restrictive DUI probation conditions as provided in § 303.9(e)(4)(i) and certain correctional programs as provided in § 303.12 are 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 may benefit from drug and alcohol treatment. If eligible, sentencing and correctional programs provided in § 303.12 are recommended for drug dependent offenders.
(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 and requires a confinement sentence recommendations as provided in § 303.9(e), or the standard range requires a confinement sentence recommendations in a state facility as provided in § 303.9(e)(1). 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 the use of restrictive DUI probation conditions as provided in § 303.9(e)(4)(i) and certain correctional programs as provided in § 303.12 are 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, sentencing and correctional programs provided in § 303.12 are recommended for drug dependent offenders.
Source The provisions of this § 303.11 adopted February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399079) to (399082).
Notes of Decisions Standard Range Designation
Defendant’s conviction for driving under the influence (DUI) was a level 2 offense which Sentencing Guidelines recommended confinement in county facility; Trial Court’s sentencing of defendant to serve prison time in state correctional facility and not enumerating its reasons was contrary to Sentencing Guidelines and as such, case would be remanded for resentencing. Commonwealth v. Hartle, 894 A.2d 800 (Pa. Super. 2006).
The standard range designated in the sentencing guidelines is the standard range for the minimum sentence. Dunn v. Colleran, 247 F.3d 450 (3rd Cir. 2001).
Cross References This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); and 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing and correctional programs).
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