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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 52 Pa.B. 3204 (May 28, 2022).

204 Pa. Code § 303.10. Guideline sentence recommendations: enhancements.

§ 303.10. Guideline sentence recommendations: enhancements.

 (a)  Deadly Weapon Enhancement, as required by 42 Pa.C.S. §  2154.(b)(3).

   (1)  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), 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)  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), 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 or a sentencing factor considered in the Offense Gravity Score assignment

     (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.

   (5)  The DWE/Possessed Matrix (§  303.17(a)) is based on the following enhancement of the basic sentencing recommendations:

     (i)   For OGS 1—OGS 4, three months is added to the lower and upper limits of the standard range

     (ii)   For OGS 5—OGS 8, six months is added to the lower and upper limits of the standard range

     (iii)   For OGS 9—OGS 14, nine months is added to the lower and upper limits of the standard range

   (6)  The DWE/Used Matrix (§  303.17(b)) is based on the following enhancement of the basic sentencing recommendations:

     (i)   For OGS 1—OGS 4, six months is added to the lower and upper limits of the standard range

     (ii)   For OGS 5—OGS 8, 12 months is added to the lower and upper limits of the standard range

     (iii)   For OGS 9—OGS 14, 18 months is added to the lower and upper limits of the standard range

 (b)  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 Youth Enhancement Matrix (§  303.18(b)).

   (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 School Enhancement Matrix (§  303.18(a)).

   (3)  When the court determines both (b)(1) and (b)(2) apply, the court shall consider the School and Youth Enhancement Matrix (§  303.18(c)).

   (4)  The School/Youth Enhancement only applies to violations of 35 P.S. §  780-113(a)(14) and (a)(30).

   (5)  The School/Youth Enhancement shall apply to each violation which meets the criteria above.

   (6)  The School, Youth and School and Youth Enhancement Matrices are based on the following enhancements of the basic sentencing recommendations:

     (i)   For the School Enhancement Matrix (§  303.18(a)), six months is added to the lower limits and 12 months is added to the upper limits of the standard range

     (ii)   For the Youth Enhancement Matrix (§  303.18(b)), 12 months is added to the lower limits and 24 months is added to the upper limits of the standard range

     (iii)   For School and Youth Enhancement Matrix (§  303.18(c)), 18 months is added to the lower limits and 36 months is added to the upper limits of the standard range

 (c)  Criminal Gang Enhancement, as required by 42 Pa.C.S. §  9720.4.

   (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 consider the sentence recommendations described in subsection (c)(4).

   (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 consider the sentence recommendations described in subsection (c)(4).

   (3)  The Criminal Gang Enhancement shall apply to each violation which meets the criteria above.

   (4)  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.

 (d)  Third Degree Murder of a Victim Younger than Age 13 Enhancement, as required by 42 Pa.C.S. §  9711.1.

   (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 consider the sentence recommendations described in subsection (d)(3).

   (2)  Third Degree Murder of a Victim Younger than Age 13 Enhancement shall apply to each violation which meets the criteria above.

   (3)  The 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 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, as required by 42 Pa.C.S. §  9720.5.

   (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 consider the sentence recommendations described in subsection (e)(4). 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 consider the sentence recommendations described in subsection (e)(4). 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.

   (4)  The enhancement related to the number of images possessed by the offender or the nature and character of the abuse depicted provides the following:

     (i)   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;

     (ii)   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;

     (iii)   When applying enhancement when both aggravating circumstances are present, the court shall consider the enhancement with the higher sentence recommendation.

 (f)  Arson Enhancement, as required by 42 Pa.C.S. §  9720.6.

   (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 consider the sentence recommendations described in subsection (f)(3):

     (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.

   (3)  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.

 (g)  Human Trafficking Enhancement, as required by 18 Pa.C.S. §  3024.

   (1)  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 as an element of the offense or a sentencing factor considered in the offense gravity score assignment in §  303.15, the court shall consider the sentence recommendations as described in subsection (g)(2):

     (i)   the offender committed a violation involving sexual servitude;

     (ii)   the victim was a minor less than 18 years of age;

     (iii)   an additional point is added if the victim was a minor less than 13 years of age;

     (iv)   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).

   (2)  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 (subsections (i)—(iv)) shall be cumulative, for a maximum of four points.

 (h)  Domestic Violence Enhancement, as required by 42 Pa.C.S. §  9720.8.

   (1)  When the court determines that the offender committed an offense under 18 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 consider the sentence recommendation in subsection (h)(2).

   (2)  When the Domestic Violence 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 assessment and treatment of the minor for exposure to domestic violence.

   (3)  The following words and phrases when used in this section shall have the following meanings as defined in 23 Pa.C.S. §  6102:

     ‘‘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.

     ‘‘Minor.’’ An individual who is less than 18 years of age.

 (i)  Other Enhancements.

   (1)  The following enhancements are provided in the sentencing guidelines through the assignment of an Offense Gravity Score or the subcategorization of the offense:

     (i)   18 Pa.C.S. §  3133 (relating to sexual extortion, 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.)

     (ii)   18 Pa.C.S. §  3301 (relating to arson, and bodily injury to firefighter, police officer, etc. or serious bodily injury to civilian) as provided in 42 Pa.C.S. §  4720.6.

     (iii)   18 Pa.C.S. §  3502(a)(1)(i) (relating to home invasion burglary) as provided in 42 Pa.C.S. §  9720.7.

     (iv)   18 Pa.C.S. §  3702 (relating to robbery of a motor vehicle).

     (v)   18 Pa.C.S. §  6105(a.1)(1.1) (relating to person not to possess, use, manufacture, control, sell or transfer firearms, and the person was previously convicted or was in physical possession of a firearm).

     (vi)   18 Pa.C.S. §  6312 (relating to sexual abuse of children based on aggravating circumstances such as the age of the child or a determination of prepubescence) as provided in 42 Pa.C.S. §  9720.5.

     (vii)   75 Pa.C.S. §  3732 (relating to homicide by vehicle, and including DUI, active work zone, and/or violation of Sections 1501, 1543, 3316, 3325, and 3327).

     (viii)   75 Pa.C.S. §  3732.1 (relating to aggravated assault by vehicle, and including DUI, active work zone, and/or violation of Sections 1501, 1543, 3316, 3325, and 3327).

     (vix)   75 Pa.C.S. §  3742 (relating to accidents involving death or personal injury if the victim dies).

   (2)  As provided in §  303.9(a)(3)(ii), no further enhancement applies.

Source

   The provisions of this §  303.10 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 June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457; amended June 1, 2017, effective December 1, 2017, applicable to all sentences for offenses committed on or after January 1, 2018, 47 Pa.B. 5141; amended September 6, 2019, effective January 1, 2020, 49 Pa.B. 5110 and 50 Pa.B. 787; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399075) to (399076), (400733) to (400734) and (399079).

Notes of Decisions

   School Enhancement

   The court vacated the judgment that sentenced appellant after appellant was convicted on a controlled substance offense and a criminal conspiracy offense because the trial court erroneously applied the school enhancement provisions to the count of criminal conspiracy. Commonwealth v. Adams, 760 A.2d 33 (Pa. Super. 2000).

   In prosecution arising out of a sale of cocaine near a parochial school, the trial court did not err in imposing a sentence applying the school enhancement provisions of the sentencing guidelines based on a measurement from the school playground area rather than from the school building, where a school encompasses not only the school building itself, but includes all of the school property located in a zone where children have access such as a school playground, and where the purpose of the school enhancement provisions is to create a drug-free zone around schools. Commonwealth v. Davis, 734 A.2d 879 (Pa. Super. 1999).

   Weapons Enhancement

   While sentencing court erred in applying weapon enhancement ‘‘used’’ guidelines rather than ‘‘possessed’’ guidelines, court’s application of the deadly weapon enhancement for defendant convicted of robbery and criminal conspiracy was appropriate; defendant was in the immediate vicinity of co-conspirator when gun was used to threaten victim, he had knowledge of the existence of weapon, and he could easily have been given or taken the gun at any moment during the robbery. Com. v. Phillips, 946 A.2d 103, 114-115 (Pa. Super. 2008).

   Where defendant was convicted of cruelty to animals for shooting a dog, under the plain meaning of §  303.10(a)(1) (relating to guideline sentence recommendations: enhancements), the defendant possessed a firearm, as defined in that section, in the commission of the offense. Therefore, the enhancement section applies to defendant. Commonwealth v. Hackenberger, 795 A.2d 1040 (Pa. Super. 2002).

   Because a deadly weapon was used by the defendant in committing the crime of cruelty to animals, which is not an excluded offense, the deadly weapon enhancement applies even though the victim was not a person. Commonwealth v. Hackenberger, 795 A.2d 1040 (Pa. Super. 2002).

   Defendant claimed ineffective assistance of counsel when his trial attorney failed to request jury determination of whether his sentence should be subject to weapons enhancement. In accord with U. S. v. Williams, 235 F.3d 858 (3rd Cir. 2000), since defendant’s actual sentence was less than the maximum allowed by statute, he was not entitled to a jury determination of the applicability of the weapons enhancement. Commonwealth v. Lowery, 784 A.2d 795 (Pa. Super. 2001).

   Where the defendant fired a deadly weapon in connection with the offense to which he entered a guilty plea, and the court noted the standard range in light of the deadly weapon enhancement, the court’s imposition of a sentence beyond the standard range was an abuse of discretion where the record indicates the judge failed to consider all factors relevant to the determination of a proper sentence. Commonwealth v. Ritchey, 779 A.2d 1183 (Pa. Super. 2001).

   Where defendant was in close proximity to accomplice’s weapon during the entire carjacking incident, the court properly applied the deadly weapon enhancement to defendant’s carjacking sentence. Commonwealth v. Burnside, 32 Phila. 276.

Cross References

   This section cited in 204 Pa. Code §  303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code §  303.9 (relating to guideline sentence recommendation: general); 204 Pa. Code §  303.13 (relating to guideline sentence recommendations: aggravated and mitigated curcumstances); 204 Pa. Code §  303.17(a) (relating to Deadly Weapon Enhancement/Possessed Matrix); 204 Pa. Code §  303.17(b) (relating to Deadly Weapon Enhancement/Used Matrix); 204 Pa. Code §  303.18(a) (relating to School Enhancement Matrix); 204 Pa. Code §  303.18(b) (relating to Youth Enhancement Matrix); and 204 Pa. Code §  303.18(c) (relating to School and Youth Enhancement Matrix).



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