§ 303a.3. Offense gravity score.
(a) General provisions.
(1) The OGS measures the seriousness of the current conviction offense and is the primary determinant of the guideline sentence recommendation. An OGS is assigned to each conviction offense, based on the elements of the offense and the classification of the crime. There are 30 general OGS categories, with another eight OGS categories limited to assignments for murder.
(2) Subcategorized offenses. Certain conviction offenses are subcategorized and may be assigned more than one OGS based on the presence of specific sentencing factors determined by the court at sentencing and/or mandatory minimum sentencing provisions. Subcategorized offenses are included in the offense listings in § § 303a.9 and 303a.10 (relating to offense listing (OGS/POG assignments); and BUI/DUI offense listing (OGS/POG assignments)) and designated by an asterisk.
(3) Assignments for specific offense categories:
(i) Inchoate offenses. Inchoate offenses are scored as follows:
(A) Except as provided for inchoates to murder, convictions for attempt, solicitation or conspiracy to commit a Felony 1 offense receive an OGS of one point less than the offense attempted, solicited, or which was the object of the conspiracy.
(B) Convictions for attempt, solicitation, or conspiracy to commit any offense which is not a Felony 1 offense, receive the OGS of the offense attempted, solicited or which was the object of the conspiracy.
(C) 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 OGS of the offense attempted, solicited or which was the object of the conspiracy.
(ii) Offenses with classifications associated with underlying offenses.
(A) Convictions for Ethnic Intimidation (18 Pa.C.S. § 2710 (relating to ethnic intimidation)), Terrorism (18 Pa.C.S. § 2717 (relating to terrorism)), Ecoterrorism (18 Pa.C.S. § 3311 (relating to ecoterrorism)), and other offenses for which the grade is classified one degree higher than the underlying offense are assigned an OGS two points higher than the OGS of the underlying offense but cannot exceed OGS 30.
(B) Convictions for Obstruction of Justice (18 Pa.C.S. § 3016 (relating to obstruction of justice)), Unlawful Contact with Minor (18 Pa.C.S. § 6318 (relating to unlawful contact with minor)), and other offenses for which the grade is classified the same as an associated or underlying offense are assigned the same OGS as the associated or underlying offense, unless otherwise provided.
(iii) Violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § § 780-101—780-144).
(A) 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 with the highest OGS.
(B) Exception for prescription pills. For violations of section 13(a)(12), (a)(14) and (a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act involving narcotic prescription pills of Schedule II, when both the weight and the number of pills are known, the higher OGS assignment applies.
(C) Subcategorization. OGS assignments for violations of section 13(a)(12), (a)(14) and (a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act are subcategorized based on the type and quantity of the controlled substance, and the statutory maximum of the controlled substance, including the applicability of section 14 or section 15 of The Controlled Substance, Drug, Device and Cosmetic Act (35 P.S. § 780-114 or § 780-115).
(4) Omnibus offense gravity score. The omnibus OGS, as provided in § 303a.11 (relating to omnibus OGS tables), is assigned based on the grade of the conviction offense and/or a mandatory minimum requirement, and applies to any offense not listed in § 303a.9 or § 303a.10. As provided below, the omnibus OGS may apply to new or amended sections of statute enacted by the General Assembly.
(i) Three omnibus OGS tables are provided in § 303a.11:
(A) 303a.11(a) General omnibus OGS assignments.
(B) 303a.11(b) BUI omnibus OGS assignments, relating to operating watercraft under the influence.
(C) 303a.11(c) DUI omnibus OGS assignments, relating to driving under the influence.
(ii) For an addition of a new subsection of statute:
(A) The lowest OGS assigned within the section based on the grade or statutory maximum of the offense shall apply to the new subsection.
(B) When the grade or statutory maximum of the new subsection is higher than the highest grade or statutory maximum in the section, the highest assigned OGS in the section shall apply to the new subsection, unless the omnibus OGS is higher.
(C) When the grade or statutory maximum of the new subsection is lower than the lowest grade or statutory maximum in the section, the lowest assigned OGS in the section shall apply to the new subsection, unless the omnibus OGS is lower.
(iii) For an amendment to an existing section of statute:
(A) When the definition of an offense listed in § 303a.9 or § 303a.10 is changed, the previously assigned OGS shall apply.
(B) When the grade, mandatory minimum sentence requirement, or statutory maximum of a subsection listed in § 303a.9 or § 303a.10 has increased, the omnibus OGS shall apply, unless the previously assigned OGS is higher.
(C) When the grade, mandatory minimum sentence requirement, or statutory maximum of a subsection listed in § 303a.9 or § 303a.10 has decreased, the omnibus OGS shall apply, unless the previously assigned OGS is lower.
(b) Enhancements.
(1) Enhancements, as provided in § 303a.12 (relating to OGS enhancements table), are increases to the initial OGS assignment that apply when a court determines one or more specified sentencing factors were present during the commission of the crime. The application of an enhancement is determined by the court at sentencing, based on a preponderance of the evidence. Sentence enhancements may be mandated by statute or established by the Commission.
(i) General enhancements, as provided in paragraph (5), apply to all offenses unless otherwise provided.
(ii) Offense-specific enhancements, as provided in paragraph (6) relating to Crimes Code enhancements and paragraph (7) relating to Vehicle Code enhancements, are limited to designated offenses.
(2) Enhancements are included in guideline sentence recommendations through two approaches:
(i) Subcategorization, in which one or more sentencing factors identified for enhancement are included in the OGS assignment in § § 303a.9 and 303a.10; subcategorized offenses are designated with an asterisk.
(ii) Adjustment, in which the OGS assignment in § § 303a.9 and 303a.10 is increased when it is determined that one or more sentencing factors identified for enhancement were present during the commission of the crime. Offenses subject to an enhancement through adjustment are designated E in the Enhancement column in § § 303a.9 and 303a.10.
(3) An enhancement shall apply to each conviction offense for which the court determines the sentencing factor is present, unless the sentencing factor is an element of the crime or a sentencing factor considered in the OGS assignment, or the sentencing factor has been applied through another enhancement. The OGS may not exceed OGS 30 based on an enhancement adjustment. Enhancement adjustments do not apply to offenses assigned to Level G or Level H, and the OGS may not exceed OGS 30 based on an enhancement adjustment.
(4) Omnibus enhancement. The omnibus enhancement shall apply to a new sentencing enhancement enacted by the General Assembly and not otherwise provided in this section or in § 303a.12. The OGS assignments, as provided in § § 303a.9, 303a.10 and 303a.11, shall be increased by one point when it is determined by the court that one or more sentencing factors identified in the new sentencing enhancement was present during the commission of the crime.
(5) Descriptions of general enhancements.
(i) Deadly weapon enhancement, as provided in 42 Pa.C.S. § 2154(b)(3) (relating to adoption of guidelines for sentencing).
(A) Deadly weapon possessed. When the court determines that the person possessed a deadly weapon during the commission of the current conviction offense, the court shall adjust the OGS as provided in § 303a.12. The person has possessed a deadly weapon if the deadly weapon was on the person’s person or within the person’s immediate physical control.
(B) Deadly weapon used. When the court determines that the person used a deadly weapon during the commission of the current conviction offense, the court shall adjust the OGS as provided in § 303a.12. The person has used a deadly weapon if a deadly weapon was employed by the person in a way that threatened or injured another person.
(C) The deadly weapon enhancements shall not apply to the following offenses:
(I) 18 Pa.C.S. § 907 (relating to possessing instruments of crime).
(II) 18 Pa.C.S. § 908 (relating to prohibited offensive weapons).
(III) 18 Pa.C.S. § 912 (relating to possession of weapon on school property).
(IV) 18 Pa.C.S. § 913 (relating to possession of firearm or other dangerous weapon in court facility).
(V) 18 Pa.C.S. § 2701(a)(2) (relating to simple assault).
(VI) 18 Pa.C.S. § 2702(a)(4) (relating to aggravated assault).
(VII) Any offense assigned to Level G or Level H in the sentencing guidelines.
(VIII) Any offense for which possession of a deadly weapon is an element of the statutory definition, including theft when property stolen is a firearm and any violation of the Pennsylvania Uniform Firearms Act of 1995.
(ii) School zone drug enhancement, as provided in 42 Pa.C.S. § 2154(b)(3).
(A) When the court determines that the person manufactured, delivered, or possessed with intent to deliver a controlled substance within a school zone, the court shall adjust the OGS as provided in § 303a.12.
(B) The enhancement only applies to violations of section 13(a)(14) and (a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act.
(iii) Criminal gang enhancement, as required by 42 Pa.C.S. § 9720.4 (relating to sentencing for offenses committed in association with a criminal gang).
(A) When the court determines that the person committed murder in the third degree in association with a criminal gang, the court shall consider the enhanced sentence recommendations provided in § 303a.9. When the court determines that the person committed any other crime of violence in association with a criminal gang, the court shall adjust the OGS as provided in § 303a.12.
(B) When the court determines that the person committed a violation of section 13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act in association with a criminal gang, the court shall adjust the OGS as provided in § 303a.12.
(C) The criminal gang enhancement shall apply to each violation which meets the criteria described in subparagraph (A) or subparagraph (B).
(iv) Domestic violence enhancement, as required by 42 Pa.C.S. § 9720.8 (relating to sentencing for offenses involving domestic violence in the presence of a minor).
(A) When the court determines that the person committed murder in the third degree against a family or household member as defined in 23 Pa.C.S. § 6102 (relating to definitions), the court shall consider the enhanced sentence recommendations provided in § 303a.9. When the court determines that the person committed any other offense under 18 Pa.C.S. Chapters 25, 27, 29, 30, 31 or 49, or an attempt, solicitation, or conspiracy to commit any of these offenses, against a family or household member as defined in 23 Pa.C.S. § 6102, the court shall adjust the OGS as provided in § 303a.12.
(B) When the court further determines that a person knew the crime was witnessed, either through sight or sound, by a minor who is also a family or household member of the person or the victim, the court shall consider ordering the person to pay the costs or fees associated with the assessment and treatment of the minor for exposure to domestic violence.
(6) Descriptions of crimes code enhancements.
(i) Third degree murder of a victim younger than age 13 enhancement, as required by 42 Pa.C.S. § 9711.1 (relating to sentencing for certain murders of infant persons). When the court determines the victim of murder in the third degree as defined in 18 Pa.C.S. § 2502(c) (relating to murder) was less than 13 years of age at the time of the offense, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(ii) Causing or aiding suicide enhancement, as required by 18 Pa.C.S. § 2505(c) (relating to causing or aiding suicide). When the court determines the person who died by suicide or was aided or solicited to die by suicide was under 18 years of age and has an intellectual disability or autism spectrum disorder, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(iii) Trafficking in individuals and involuntary servitude enhancement, as required by 18 Pa.C.S. § 3024 (relating to sentencing). When the court determines that the person violated 18 Pa.C.S. § 3011 (relating to trafficking in individuals) or § 3012 (relating to involuntary servitude) and any of the following factors were present, the court shall adjust the OGS as provided in § 303a.12:
(A) The person committed a violation involving sexual servitude; or
(B) The victim was a minor less than 18 years of age; or
(C) The victim was a minor less than 13 years of age; or
(D) In the course of committing a violation, the person also violated one or more of the following offenses:
(I) 18 Pa.C.S. § 2901 (relating to kidnapping); or
(II) 18 Pa.C.S. § 3121 (relating to rape); or
(III) 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse).
(iv) Sexual extortion, as required by 18 Pa.C.S. § 3133(e) (relating to sexual extortion).
(A) When the court determines that the person violated 18 Pa.C.S. § 3133 and the complainant is under 18 years of age or has an intellectual disability or the actor holds a position of trust or supervisory or disciplinary power over the complainant, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(B) When the court determines that the person violated 18 Pa.C.S. § 3133 and the complainant attempts suicide resulting in serious bodily injury or dies by suicide, within 90 days of the commission of the offense, as a proximate result of the trauma that the complainant experienced during or following the commission of the offense, the court shall adjust the OGS as provided in § 303a.12.
(v) Arson enhancement, as required by 42 Pa.C.S. § 9720.6 (relating to sentencing for arson offenses).
(A) When the court determines that one or more of the following factors relating to arson or aggravated arson as defined in 18 Pa.C.S. § 3301 (relating to arson and related offenses) are present, the court shall consider the enhanced sentence recommendations provided in § 303a.9:
(I) Bodily injury results to a firefighter, police officer or person actively engaged in fighting the fire; or
(II) Serious bodily injury results to a civilian.
(B) When the court determines that one or more of the following factors relating to arson or aggravated arson as defined in 18 Pa.C.S. § 3301 are present, the court shall adjust the OGS as provided in § 303a.12:
(I) More than three persons were present inside the property at the time of the offense; or
(II) The fire caused more than $1 million 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).
(vi) Burglary enhancement, as required by 18 Pa.C.S. § 3502(d.1) (relating to burglary) and 42 Pa.C.S. § 9720.7 (relating to sentencing for burglary).
(A) When the court determines that the person violated 18 Pa.C.S. § 3502(a)(1)(i), regarding burglary of a structure adapted for overnight accommodations in which at the time of the offense any person is present and the person commits, attempts or threatens to commit a bodily injury therein, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(B) When the court determines that the person violated 18 Pa.C.S. § 3502 and a domestic animal was harmed or killed in the course of the burglary, the court shall adjust the OGS as provided in § 303a.12.
(vii) Criminal trespass enhancement, as required by 18 Pa.C.S. § 3503(c.2) (relating to criminal trespass) and 42 Pa.C.S. § 9720.7.
(A) When the court determines that the person violated 18 Pa.C.S. § 3503 (relating to criminal trespass) and a domestic animal was harmed or killed in the course of the criminal trespass, the court shall adjust the OGS as provided in § 303a.12.
(viii) Robbery of motor vehicle enhancement, as required by 18 Pa.C.S. § 3702(b) (relating to robbery of motor vehicle). When the court determines that the person violated 18 Pa.C.S. § 3702, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(ix) Person not to possess, use, manufacture, control, sell or transfer firearms enhancement, as required by 18 Pa.C.S. § 6105(a.1)(1.1)(ii) (relating to person not to possess, use, manufacture, control, sell or transfer firearms). When the court determines that the person violated 18 Pa.C.S. § 6105(a)(1), regarding person not to possess a firearm; conviction for enumerated felony or drug felony, and was previously convicted or was in physical possession or control of a firearm, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(x) Sexual abuse of children enhancement, as required by 42 Pa.C.S. § 9720.5 (relating to sentencing for offenses involving sexual abuse of children).
(A) When the court determines that the person violated 18 Pa.C.S. § 6312 (relating to sexual abuse of children) and that indecent contact with a child is depicted and the child depicted is under 10 years of age or prepubescent, the court shall consider the enhanced sentence recommendations provided in § 303a.9.
(B) When the court determines that the person violated 18 Pa.C.S. § 6312 and that the person possessed more than 50 images, the court shall adjust the OGS as provided in § 303a.12. 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.
(C) When the court determines that the person violated 18 Pa.C.S. § 6312 and that the abuse depicted in the images possessed by the person are of a sexual or violent nature or character, the court shall adjust the OGS as provided in § 303a.12. This enhancement shall apply to any image possessed by the person which portrays or contains any of the following:
(I) The bondage of a child; or
(II) A dangerous weapon as defined in 18 Pa.C.S. § 913 used in a sexual context; or
(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).
(D) When the court determines that the person violated 18 Pa.C.S. § 6312 and that the child is known to the person, the court shall adjust the OGS as provided in § 303a.12.
(E) Sexual abuse of children enhancement shall apply to each violation which meets the criteria above.
(7) Descriptions of vehicle code enhancements.
(i) Homicide by vehicle enhancements, as provided in 42 Pa.C.S. § 2154(b)(3) and required by 75 Pa.C.S. § 3732 (relating to homicide by vehicle). When the court determines that the person violated 75 Pa.C.S. § 3732 and that one or more of the following sentencing factors are present, the court shall consider the enhanced sentence recommendations as provided in § 303a.9:
(A) Category A: violation of 75 Pa.C.S. § 3802 or 75 Pa.C.S. § 3316 (relating to prohibiting text-based communications).
(B) Category B: violation of 75 Pa.C.S. § 3326 (relating to duty of driver in construction and maintenance areas or on highway safety corridors), 75 Pa.C.S. § 3325 (relating to duty of driver on approach of emergency vehicle), or 75 Pa.C.S. § 3327 (relating to duty of driver in emergency response areas and in relation to disabled vehicles).
(C) Category C: violation of 75 Pa.C.S. § 1501 (relating to drivers required to be licensed) or 75 Pa.C.S. § 1543 (relating to driving while operating privilege is suspended or revoked).
(ii) Aggravated asault by vehicle enhancements, as provided in 42 Pa.C.S. § 2154(b)(3) and required by 75 Pa.C.S. § 3732.1 (relating to aggravated assault by vehicle). When the court determines that the person violated 75 Pa.C.S. § 3732.1 and that one or more of the following sentencing factors are present, the court shall consider the enhanced sentence recommendations as provided in § 303a.9:
(A) Category A: violation of 75 Pa.C.S. § 3802 or 75 Pa.C.S. § 3316.
(B) Category B: violation of 75 Pa.C.S. § 3326, 75 Pa.C.S. § 3325, or 75 Pa.C.S. § 3327.
(C) Category C: violation of 75 Pa.C.S. § 1501 or 75 Pa.C.S. § 1543.
(iii) Accidents involving death enhancement, as provided in 75 Pa.C.S. § 3742(b)(3)(ii) (relating to accidents involving death or personal injury). When the court determines that the person violated 75 Pa.C.S. § 3742 and the victim dies, the court shall consider the enhanced sentence recommendations as provided in § 303a.9.
(iv) Driving under the influence of alcohol or controlled substance enhancement, as required by 75 Pa.C.S. § 3804(c.3) (relating to penalties). When the court determines that the person violated 75 Pa.C.S. § 3802(a)(1) where the person refused testing of breath or chemical testing or 75 Pa.C.S. § 3802(c) or (d) and where the person has four or more prior offenses, the court shall consider the enhanced sentence recommendations as provided in § 303a.10.
(c) Mandatory sentencing provisions.
(1) 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.
(2) For mandatory sentencing provisions provided for in 30 Pa.C.S. Chapter 55 (relating to operation of boats) and in 75 Pa.C.S. § 1543(b), Chapter 37 Subchapter B (relating to serious traffic offenses), Chapter 37 Subchapter C (relating to accidents and accident reports), and Chapter 38 (relating to driving after imbibing alcohol or utilizing drugs), the court shall consider the OGS assignments as provided in § § 303a.9 and 303a.10. Offenses subject to mandatory penalties are designated M in the Mandatory/Enhancement column in § 303a.9; all offenses listed in § 303a.10 are subject to mandatory penalties.
(3) Mandatory sentences for which restrictive DUI probation conditions (42 Pa.C.S. § 9763(c) (relating to conditions of probation)) are authorized.
(i) The court shall consider the offense-specific sentence recommendations for a person convicted under 75 Pa.C.S. § 1543(b), former 75 Pa.C.S. § 3731 (relating to driving under the influence of alcohol or controlled substance), or 75 Pa.C.S. § 3804 for a first, second, or third offense under 75 Pa.C.S. Chapter 38.
(ii) The court may use restrictive DUI probation conditions or a combination of confinement and restrictive DUI probation conditions to satisfy the mandatory minimum requirement as provided by law.
Cross References This section cited in 204 Pa. Code § 303a.1 (relating to preliminary provisions); 204 Pa. Code § 303a.2 (relating to guideline sentencing standards); 204 Pa. Code § 303a.5 (relating to offense-specific sentence recommendations); 204 Pa. Code § 303a.9 (relating to offense listing (OGS/POG assignments)); 204 Pa. Code § 303a.10 (relating to BUI/DUI offense listing (OGS/POG assignments)); and 204 Pa. Code § 303a.12 (relating to OGS enhancements table).
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