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The Pennsylvania Code website reflects the Pennsylvania Code changes effective through 52 Pa.B. 7348 (November 26, 2022).

204 Pa. Code § 303.9. Guideline sentence recommendation: general.

§ 303.9. Guideline sentence recommendation: general.

 (a)(1)  Basic sentence recommendations. Guideline sentence recommendations are based on the Offense Gravity Score and Prior Record Score. In most cases, the sentence recommendations are found in the Basic Sentencing Matrix (§  303.16(a)). The Basic Sentencing Matrix 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).

   (2)  Sentences for offenders under age 18 for murder, murder of unborn child, or murder of law enforcement officer. If an offender is under age 18 years at the time of the offense and the conviction occurred after June 24, 2012, the court has no authority to impose a sentence less than that required by the mandatory minimum provision established in statute and may impose a minimum sentence up to and including life (18 Pa.C.S. §  1102.1). If the court determines the convicted offender was under age 18 at the time of the offense and the conviction occurred after June 24, 2012, the court shall instead consider the Basic Sentencing Matrix for Offenders Under Age 18 Convicted of 1st or 2nd Degree Murder (§  303.16(b)).

   (3)  Enhancement sentence recommendations. Guideline sentence recommendations may include sentence enhancements, which provide increases to the basic sentence recommendations when an enhancement factor identified by the Commission is present. Enhancement sentence recommendations are described in §  303.10. The application of an enhancement is determined by the court at sentencing, based on a preponderance of the evidence that the enhancement factor is present. Sentence enhancements can either be mandated by statute or directly adopted by the Commission.

     (i)   Several approaches are employed to establish enhancement sentence recommendations:

       (A)   assigning an offense gravity score to the offense that may be higher than comparable offenses without the enhancement, or assigning an offense gravity score equal to a comparable offense that includes the enhancement.

       (B)   increasing the assignment of an offense gravity score when the enhancement factor is present, which may include a subcategorization of the offense, in which a higher offense gravity score is assigned to the offense when the enhancement factor is present.

       (C)   adjusting the basic sentencing recommendation when the enhancement factor is present, by adding months to the top and bottom of the standard range.

     (ii)   If the court determines at sentencing that enhancement factors described in §  303.10 are present, the court shall instead consider the enhancement sentence recommendations described in §  303.10. The enhancement sentence recommendations shall not apply if the enhancement factor is:

       (A)   an element of the offense used to assign the Offense Gravity Score, pursuant to §  303.3(a); or

       (B)   a sentencing factor used to subcategorize the offense, pursuant to §  303.3(b).

 (b)  (Reserved).

 (c)  (Reserved).

 (d)  Aggravated and mitigated sentence recommendations. To determine the aggravated and mitigated sentence recommendations, apply §  303.13. These procedures apply to both basic sentence recommen-dations and enhancement sentence recommendations.

 (e)  Confinement sentence recommendations. All numbers used for the ranges of the sentence recommendations suggest months of minimum confinement pursuant to 42 Pa.C.S. §  9755(b) (partial confinement) and §  9756(b) (total confinement), or the duration of restrictive conditions imposed through an order of probation pursuant to 42 Pa.C.S. §  9754, as described below:

   (1)  Confinement in a state facility (Department of Corrections) pursuant to:

     (i)   42 Pa.C.S. §  9762(b)(1)

     (ii)   42 Pa.C.S. §  9762(b)(2)

   (2)  Confinement in a county facility pursuant to:

     (i)   42 Pa.C.S. §  9762(b)(2)

     (ii)   75 Pa.C.S. §  3804(d)

   (3)  Confinement in a county facility pursuant to 42 Pa.C.S. §  9762(b)(3)

   (4)  Probation with restrictive conditions pursuant to:

     (i)   42 Pa.C.S. §  9763(c) (relating to restrictive DUI probation conditions)

     (ii)   42 Pa.C.S. §  9763(d) (relating to restrictive conditions of probation)

   (5)  Guidelines for restrictive conditions (42 Pa.C.S. §  2154.1)

     (i)   As required by statute:

       (A)   Probation guidelines shall address the use of county intermediate punishment programs as restrictive conditions of probation and the duration of terms of probation (42 Pa.C.S. §  2154(d));

       (B)   Guidelines for restrictive conditions shall give primary consideration to reducing recidivism for the protection of the public safety (42 Pa.C.S. §  2154.1).

     (ii)   The guidelines for restrictive conditions shall apply to an offender identified under the guidelines for probation (42 Pa.C.S. §  2154(d)) and the guidelines for restrictive conditions (42 Pa.C.S. §  2154.1) as eligible and appropriate for the use of county intermediate punishments programs as restrictive conditions of probation

     (iii)   Unless otherwise provided in §  303.12, the recommended duration of the aggregate term of probation imposed during a judicial proceeding may not exceed ten years and the duration of the restrictive conditions of probation (42 Pa.C.S. §  9763(d)) or a combination of confinement without parole (as provided in 42 Pa.C.S. § §  9755(h) and 9756(c.1)) and restrictive conditions of probation may not exceed the suggested months of minimum confinement

 (f)  Non-confinement sentence recommendations. Probation with non-restrictive conditions (P) and other restorative sanctions (RS) are non-confinement community-based sentencing alternatives. A sentencing guidelines recommendation of RS suggests use of the least restrictive, non-confinement sentencing alternatives, and the sentencing guidelines recommendation of P suggests use of probation with non-restrictive general conditions, as described below:

   (1)  Probation guidelines (42 Pa.C.S. §  2154(d))

     (i)   As required by statute, when serving as a restorative sanction with non-restrictive conditions, probation guidelines shall address the duration of terms of probation.

     (ii)   When probation is imposed as a restorative sanction, the recommended duration of the term of probation may not exceed the probation recommendation provided in the Basic Sentencing Matrix (§  303.16(a)):

       (A)   P1 = 1 year

       (B)   P2 = 2 years

     (iii)   When imposed as a restorative sanction, the recommended aggregate term of probation imposed during a judicial proceeding may not exceed five years.

     (iv)   Conditions of probation imposed as restorative sanctions shall be limited to those non-restrictive conditions authorized under 42 Pa.C.S. §  9763(b) (related to conditions generally).

   (2)  Other restorative sanctions include:

     (i)   42 Pa.C.S. §  9753 (determination of guilt without further penalty)

     (ii)   42 Pa.C.S. §  9758 (fine)—as provided in §  303.14(a)(4) (relating to Fines/Community Service Guidelines)

     (iii)   42 Pa.C.S. §  9721(c) (mandatory restitution)

 (g)  When the guideline sentence recommendation exceeds that permitted by 18 Pa.C.S. §  1103 and §  1104 (relating to sentence of imprisonment for felony and misdemeanor) and 42 Pa.C.S. §  9755(b) and §  9756(b) (relating to sentence of partial and total confinement) or other applicable statute setting the maximum term of confinement, then the statutory limit is the longest guideline sentence recommendation. For the purposes of the guidelines, the statutory limit is the longest legal minimum sentence, which is one-half the maximum allowed by law.

 (h)  Mandatory sentences. 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.

 (i)  Mandatory sentences for which Restrictive DUI probation conditions (42 Pa.C.S. §  9763(c)) are authorized. The court shall consider the sentence recommendations pursuant to this section (§  303.9) for an offender convicted under 75 Pa.C.S. §  1543(b) (relating to driving while operating privilege is suspended or revoked), former 75 Pa.C.S. §  3731 (related to driving under the influence of alcohol or controlled substance) or 75 Pa.C.S. §  3804 (relating to penalties) for a first, second or third offense under 75 Pa.C.S. Chapter 38 (related to driving after imbibing alcohol or utilizing drugs). The court may use Restrictive DUI probation conditions pursuant to §  303.12(a)(6) or a combination of confinement and restrictive DUI probation conditions to satisfy the mandatory minimum requirement as provided by law.

Source

   The provisions of this §  303.9 amended July 6, 1985, and applies to sentences for crimes committed on or after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; a correction to the defective text was published at 16 Pa.B. 2872 (August 2, 1986); amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended October 11, 1990, effective for all crimes committed on or after December 20, 1991, 21 Pa.B. 5933; amended 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; amended September 25, 2020, effective January 1, 2021, 50 Pa.B. 5341. Immediately preceding text appears at serial pages (399070) to (399074).

Notes of Decisions

   Appropriate Sentence

   The sentencing court sentenced appellant within the standard under these guidelines. Irrespective of whether the sentencing court misconstrued appellant’s role in the perjury of witnesses, there was no basis to disturb the sentence as appellant was engaged in a continuing series of drug deals and had been convicted of other felonies. Commonwealth v. Viera, 659 A.2d 1024 (Pa. Super. 1995).

   Discretion

   A sentencing court has no discretion to refuse to apply the deadly weapon enhancement. Commonwealth v. Peer, 684 A.2d 1077 (Pa. Super. 1996).

   Guidelines Violated

   The sentencing court abused its discretion by unreasonably deviating from these sentencing guidelines and imposing an unreasonably lenient sentence. Commonwealth v. Childs, 664 A.2d 994 (Pa. Super. 1995).

   Mandatory Sentences

   In spite of a discrepancy between the grading of the offense in the Sentencing Guidelines and in the Motor Vehicle Code, the trial court properly followed the DUI statute in sentencing the defendant for DUI as a first-degree misdemeanor rather than a second-degree misdemeanor, where the Motor Vehicle Code provided that the Sentencing Guidelines should not supersede the mandatory penalties of the DUI statute and the Sentencing Guidelines likewise provide that the court has no authority to impose a sentence less than that required by a mandatory minimum provision established in a statute. Commonwealth v. Fogel, 741 A.2d 767 (Pa. Super. 1999).

   Partial Confinement

   It seems clear that the guideline ranges in effect at the time of defendant’s sentencing contemplated minimum sentences of either total or partial confinement; therefore, the trial court properly applied the guidelines sentencing the defendant to partial confinement for the rape conviction. Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super. 1995).

   Range of Sentence

   Where the trial court sustained the defendant’s objection and eliminated specific prior convictions from his prior record score, and prior record score is one of two determinants of the applicable sentencing range, it is clear that those prior convictions had no role in determining defendant’s range of sentence. Lackawana County District Attorney v. Coss, 531 U. S. 923 (2001).

   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).

Cross References

   This section cited in 204 Pa. Code §  303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code §  303.10 (relating to guideline sentence recommendations: enhancements); 204 Pa. Code §  303.11 (relating to guideline sentence recommendation: sentencing levels); 204 Pa. Code §  303.12 (relating to guideline sentence recommendations: sentencing and correctional programs); 204 Pa. Code §  303.14 (relating to guideline sentence recommendations—economic sanctions); 204 Pa. Code §  303.15 (relating to offense listing); 204 Pa. Code §  303.16(a) (relating to basic sentencing matrix); 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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