Frequently Asked Questions: Sentencing Guidelines (6 th Edition & 6 th Edition, Revised) and General Sentencing Issues

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1 Offense Gravity Score (OGS) Does an increased OGS for ethnic intimidation require a conviction under statute? Guidelines are conviction-based recommendations. Assignment of an OGS is based on the specifics of the conviction offense. In the case of ethnic intimidation, the definition in 18 Pa.C.S. 2710(a) requires that a person commit one of several listed offenses, and do so "...with malicious intention toward the actual or perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals..." Based on this definition, a finding must first be made as to whether the person did in fact "commit" one of the listed offenses [i.e.--conviction]. A conviction for ethnic intimidation, and the subsequent increased OGS, necessarily requires conviction of one of the underlying offenses. Can an OGS be negotiated? No. Offense Gravity Scores are assigned by the Commission. The court, district attorney or defense counsel has no discretion to set the OGS for a crime. However, when there is a dispute about which score the Commission has assigned to a particular offense, the court must decide which score is correct. How is the OGS determined for marijuana and/or plants based on the demarcations which include both weight and "live plants?" The demarcation of marijuana plants is based on that found in the mandatory provision in 18 Pa.C.S Under the mandatory statute, the categories begin at 10 or more "live" marijuana plants; in those cases where the number of live plants does not equal 10 plants, the statute provides a definition and procedure for weighing "growing" plants. The weight includes the whole plant and the root system, but does not include any substance not a part of the growing plant. Since the intent of the Commission was to develop demarcations consistent with the mandatories, guideline recommendations parallel the mandatories with respect to the use of weight versus plants in determining the offense gravity score. As there are outstanding appeals relating to what constitutes a plant [common root system, etc.], guideline application will be guided by further interpretation by the appellate courts. Are guidelines provided for delivery of narcotics? The descriptive listing of drug offenses appears incomplete. The listing of the drug offenses in of the implementation manual provides only an abbreviated description of the offense; the reader is referred to the citation provided for the full description of the offenses listed. In the case of delivery of narcotics, such a conviction would fall under 35 P.S (a)(30) possession with intent to deliver. The full description, as found in statute, is: manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate state board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance. Does the same penalty apply for forgery and misrepresentation to a doctor under 35 P.S (a)(12)? The sentencing recommendations are based on the offense of conviction. Therefore, a person convicted under (a)(12) for either misrepresentation or forgery would be treated the same. However, if the Updated: 01/2010 Page 1 of 9

2 forgery conviction was based on a charge under another section [e.g P.S ], the recommended sentence would be related to the penalties that apply to that section. Is the OGS for an inchoate offense always the same as the OGS for the object offense? No. The rule in statute for grading such offenses (18 Pa.C.S. 905) provides: attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. The Sentencing Commission s OGS policy regarding inchoate offenses is slightly different than statute. The OGS for attempt, solicitation or conspiracy to any felony 1 offense carries an OGS one point less than the object offense; an inchoate to a felony 2 or less serious offense is assigned the same OGS as the object offense. One exception to this rule is for murder inchoates, in which the OGS is 14 (if there is serious bodily injury) or OGS 13 (if no serious bodily injury). Prior Record Score (PRS) Prior Record Score When looking at an offender s criminal history, is a prior judicial proceeding the same as previous transaction? No. The Commission s policies of considering only the most serious offense of a previous transaction do not apply under the 6th edition guidelines. Under the 6th edition guidelines, a Judicial Proceeding is a proceeding in which all offenses for which the offender has been convicted are before the court for sentencing at the same time. A judicial proceeding may include multiple offenses, multiple transactions, multiple OTNs, or multiple docket numbers. Do prior felony drug convictions contribute to a prior record score of RFEL? No. The RFEL category is restricted to those defendants with six or more points based exclusively on felony 1 and felony 2 offenses. Felony drug offenses, although assigned two points in the prior record score, are not classified as F1 or F2 offenses; as a result, they are not included in the RFEL category. RFEL and REVOC were established as categories reserved for the most serious felony offenders and the most serious repeat offenders. Both categories provide incapacitative sentence recommendations for offenders who have demonstrated continued dangerousness. With respect to the felony drug offenses, 18 Pa.C.S provides enhanced penalties for drug trafficking sentences. Additionally, most of the major drug felonies are prosecuted in the federal courts. What is the reason for the juvenile lapsing provision, and why doesn't it apply to prior adult convictions? Lapsing of prior records has been a topic of extensive research and debate during the guidelines revision process. Consideration was given to both an adult and juvenile lapsing provision. Fundamental to this was the underlying purpose of the prior record score: a measure of increased culpability and predictor of future criminal behavior. The usefulness of this measure diminishes as the offender remains crime free. Support for a lapsing provision was evidenced by both survey responses and sentencing data which included stale prior record as a reason for mitigated or departure sentences. Also, the Commission considered the lack of availability or access to accurate prior records, and the disparity in sentencing caused by the relative ease or difficulty counties faced in accurately scoring the prior record score. With juveniles in particular, the Commission noted the purpose of the juvenile court as substantively different of that of criminal court, and that stale juvenile adjudications are no longer Updated: 01/2010 Page 2 of 9

3 relevant as predictors of future criminal activity. The Commission has never adopted an adult lapsing provision due to strong opposition and little or no support from the public. Is there a requirement for law abiding behavior before juvenile lapsing can occur? Yes. Under the 6 th Edition, Revised Sentencing Guidelines (effective 12/5/2008), the Commission included a requirement for a ten-year period of law-abiding behavior in order for lapsing to occur. Crime free behavior is defined as any summary offense and/or one misdemeanor offense with a statutory maximum of one year or less. Can the Commission provide crimes code information from other states for purposes of prior record score calculation? Determination of the prior record score must take into account convictions in other states, the federal system, and foreign jurisdictions. In order to accurately determine this score, the statute of conviction in the other jurisdiction is compared to current Pennsylvania statutes, and the prior record score is based on the points assigned to the current equivalent statute in Pennsylvania. If a previous Pennsylvania conviction was misgraded, is the correct grade used in PRS calculation? Yes but only if the prior misgraded offense never existed in statute for that particular offense. Commission policy developed under the 1997 guidelines requires that the points assignment to be based on the current PA equivalent offense. The Commission thought it inappropriate to legitimize such an error by including a non-existent offense/grade in the Prior Record Score. If a previous Pennsylvania conviction was graded incorrectly, is the correct grade used in PRS calculation? No. The difference in this example is that the prior misgraded offense actually existed in statute for that particular offense. The Commission s general policy requires use of the grade provided, even if it appears incorrect, since the trial court was in the best position to determine the appropriate grade and the court s decision should not be undermined. Driving Under the Influence (DUI) When calculating a Prior Record Score (PRS), do I need to limit prior criminal history information to include only prior convictions within the past 10 years when the current conviction is a DUI? No. The Sentencing Commission s PRS policy requires consideration of an offender s entire lifetime of prior convictions for possible point scoring. The consideration of a 10-year look back period is a statutory requirement when the current conviction is a DUI and this look back period is only used to determine: 1) the grading of the current DUI and 2) the mandatory minimum penalty of the current DUI. When the current conviction offense is a DUI, do I factor in a prior DUI offense that resulted being accepted into ARD? Yes and No. No, as to the Prior Record Score (PRS) calculation. The Sentencing Commission s PRS policy clearly states that prior ARDs are never scored in a PRS calculation. Yes, as to the grade and mandatory penalty. Under 75 Pa.C.S.A. 3806(a), the rule used to determine prior offenses includes a... prior Updated: 01/2010 Page 3 of 9

4 conviction, adjudication of delinquency, juvenile consent decree, and acceptance of ARD... which will impact the grading and penalty of the current DUI. Enhancements Can a sentencing guideline enhancement (Deadly Weapon Used/Possessed or Youth/School) be waived or negotiated? No. When the factual circumstances of either enhancement apply, the court is required to consider the applicable enhanced sentence recommendation. The court may impose a sentence with departs from the guidelines, but only after it considers the correct enhanced ranges. When the court departs from the guidelines, it must specify its reasons for doing so. Does the deadly weapon have to be discharged (e.g. offender shoots the gun, or stabs the offender with the deadly weapon) in order for the Deadly Weapon Used enhancement to apply? No. The sentencing guidelines DWE policy defines use when the offender threatens or injures another individual with a firearm (loaded or unloaded); dangerous weapon; or any device implement, or instrumentality capable of producing death or serious bodily injury. Therefore, if the deadly weapon is used in a threatening manner, the Deadly Weapon Used enhancement would be the correct starting point for the court. Can multiple enhancements be added to a sentence if both are determined to be present? Yes. For single enhancements, use Deadly Weapon Possessed, Deadly Weapon Used, or Youth/School matricies. For multiple enhancements, first apply the Youth/School enhancement to each identified offense of conviction then, apply the deadly weapon enhancement to any offense that deadly weapon was possessed or used. Caution: application of multiple enhancements may increase the recommendation past the statutory limit. Fines and Community Service Recommendations Do the guidelines provide for fines and/or community service recommendations for every offender? No. Under the 6the Edition, Revised (12/5/2008) Sentencing Guidelines, the Commission added provisions to define fines and community service ranges only for sentences at Level 1 and Level 2 of the sentencing guidelines. These recommendations should be considered by the court when ordering fines or community service as a Restorative Sanction without confinement. What if the court chooses not to impose the recommended number of hours of community service or fines would the sentence be considered a departure from the guidelines? No. The lack of a community service component on a sentence of Probation or the no fine imposed would not impact conformity to the guidelines. Updated: 01/2010 Page 4 of 9

5 Sentencing Levels How does Level 2 differ from Level 3? Level 3 always provides a primary recommendation of incarceration, but permits the court to consider other sentencing options, including county intermediate punishment with the restrictive intermediate punishments in lieu of the recommended period of incarceration following an assessment/evaluation for drug dependency. Restorative sanctions are not included as sentencing options at Level 3 unless used in conjunction with a more restrictive sentencing option. In Level 2, the sentencing options available to the court include incarceration in a county facility, county intermediate punishment, and restorative sanctions; specific options permitted are based on the standard range indicated in the cell. The court is encouraged to give greater consideration to the exclusive use of restorative sanctions as a total sentence. When the guidelines recommend total confinement (state-sentence) at Level 5, does that mean incarceration in a state or county facility? The system of levels within the guidelines provides a preliminary targeting of offenders, and based on this provides recommendations which maximize the use of correctional resources via a continuum of sentencing options. While the place of confinement remains at the discretion of the court, the Commission identifies those at Level 5 as the most serious offenders. As a result, the Commission has provided a Level 5 standard range recommendation of total confinement for a period of time which places the authority for parole and subsequent supervision with the Pennsylvania Board of Probation and Parole. Do any prior convictions prohibit a defendant from consideration for Level 3 sentencing options? What about mandatories? All levels are defined in terms of offense gravity score and prior record score. Therefore, previous convictions are systematically used to determine the sentencing level; this applies to all levels, including level 3. However, other factors, such as mandatory sentences and offender eligibility provisions, may impact on the availability of certain sentencing alternatives. For instance, the county intermediate punishment legislation specifically prohibits offenders with a present or past pattern of violent behavior from participating in intermediate punishment programs. So, while the court should consider the other Level 3 sentencing options, county intermediate punishment should not be considered a viable option in the case of a defendant with a pattern of violent behavior. In the case of mandatories, applicable mandatory penalties supersede the guidelines, and therefore may provide a higher baseline for sentences of incarceration. If a guideline recommendation is more severe than the mandatory penalty, the guideline recommendation must first be considered; if the court wishes to mitigate or depart below the recommendation, the sentence nonetheless may not be less than the mandatory. It should be noted that, for most mandatory sentencing provisions, the District Attorney is required to give reasonable notice after conviction but before sentencing of the intent to proceed under the mandatory statute. Updated: 01/2010 Page 5 of 9

6 County Intermediate Punishment (CIP) How does the court order county intermediate punishment, either as a stand-alone sentence or in conjunction with incarceration? 42 Pa.C.S provides the general rules and eligibility/ineligibility definition for a sentence of county intermediate punishment. The Commission on Sentencing has always considered a sentence of county intermediate punishment to be a flat sentence. This policy is further supported by the absence of any language requiring a minimum sentence as found in 9755 [sentence of partial confinement] or 9756 [sentence of total confinement]. 42 Pa.C.S [sentence of county intermediate punishment] does provide special rules for the appropriate application of a sentence of county intermediate punishment, including the following: 9763(a) the court may order the defendant to serve a portion of the sentence under section 9755 (relating to sentence of partial confinement) or 9756 (relating to sentence of total confinement) and to serve a portion in a county intermediate punishment program or a combination of county intermediate punishment programs. This section is consistent with 9721 [sentencing generally], under which the court may consider and select one or more sentencing alternatives and may impose them consecutively or concurrently. However, it is clear in 9763(a) that any portion of the sentence which includes partial or total confinement must be served under the applicable rules, each of which includes a minimum/maximum provision. If the court is considering some kind of incarcerative sentence to be used with community based programs, the Sentencing Commission recommends one of the following options: [1] the court may sentence the defendant to a flat period of incarceration for a period of 90 days or less as permitted under 9755(h)(2) or 9756(c.1) but only when a consecutive term of county intermediate punishment is also imposed. The second component of county intermediate punishment must include one or more RIP programs with the balance on restorative sanctions. The combination of both flat term of confinement plus the flat CIP portion may not exceed the statutory maximum for the grade of the conviction offense. [2] The court may sentence the defendant to a flat period of county intermediate punishment involving a combination of authorized intermediate punishment programs, the first of which may begin with work release utilized as a RIP, with a step-down to less restrictive intermediate punishment programs over the course of the sentence. Under this scenario, the county must have received program authorization to use work release as a restrictive intermediate punishment program. While the court retains broad discretion for paroling county-sentenced offenders to programs otherwise viewed as community based programs, program entrance criteria and funding streams may make the direct sentence to county intermediate punishment more appropriate. Technically, a sentence of confinement for a minimum/maximum term and subsequent release to an alternative program is parole. It is not county intermediate punishment, since county intermediate punishment is by statute a direct sentencing alternative. What remedies are in place for violation of county intermediate punishment sentences? Who handles such violations? Initially, it is necessary to determine the supervision status of the defendant. Based on the mechanism by which a defendant enters the program, any defendant determined to be incarcerated or on parole would be handled under separate procedures. 42 Pa.C.S provides procedures for the Updated: 01/2010 Page 6 of 9

7 modification or revocation of a county intermediate punishment sentence. These procedures are based on those available for modification or revocation of an order of probation, and require a preponderance of the evidence. All original sentence options are available to the court for violation of county intermediate punishment sentences. Due to the unique circumstances that may be associated with the violations, the Commission does not provide a recommendation regarding such sentences. Policies and procedures guiding the operation of the county intermediate punishment program should include assignment of responsibility for processing violations; such procedures should be approved by the prison/county intermediate punishment board and the court. The agency charged with program supervision generally handles violation. How do some of the programs listed as restorative sanctions address victim needs? What are some examples of such programs for non-violent offenders? On the surface, some restorative sanction programs do not seem to address victim needs as required by definition. While not the single purpose of sentencing at these levels, the intent of the Commission in recommending non-confinement sentences at Level 1 and Level 2 is to encourage courts to require defendants, as a condition of any restorative sanction, to make amends for damages resulting from the criminal activity. This focus on victim restoration differs from the focus at other levels, where punishment is a primary consideration. Are there licensing requirements for mental health facilities which function as restrictive intermediate punishment programs? Are assessments/evaluations required for these defendants? In order for a program to be used as a restrictive intermediate punishment under a county IP sentence, it must house the offender full or part-time; or significantly restrict the offender's movement and monitor the offender's compliance the program(s); or involve a combination of programs that meet the preceding two standards. The county must include a program description in the county intermediate punishment plan and receive program authorization from PA Commission on Crime and Delinquency for the use of the program as a restrictive intermediate punishment. Program authorization is based on the program meeting the minimum program standards found in the PCCD intermediate punishment regulations [37 Pa. Code Ch. 451]. The sentencing guidelines do not require specific assessments and/or evaluations for mental health services, although individual county plans may require this as a means of maximizing program utilization. State Intermediate Punishment (SIP) Once an individual is sentenced to SIP, can the court award credit for time served for any time spent in custody in the county jail? No. The SIP statute permits only time during which the offender is being evaluated by the Department of Corrections (DOC) to be credited toward the 24-month sentence. Can a court sentence an offender to a longer period of time than the standard 24 months for SIP? No. The amount of the SIP sentence is limited to 24 months. However, the court is not prohibited from sentencing an offender to a consecutive period of probation. The total sentence may not exceed the maximum term for which the offender could otherwise be sentenced. Updated: 01/2010 Page 7 of 9

8 Who supervises the SIP offender during the 24-month period? The entire portion of the SIP sentence is supervised by the DOC. A participant who successfully completes treatment through an outpatient addiction treatment facility and any additional required programming will begin supervised reintegration into the community for the remaining portion of his or her sentence. The participant may continue to or be permitted to begin to reside in a community corrections center, group home, or an approved transitional residence during the period of supervised reintegration into the community. Who would supervise a consecutive term of probation if the court orders to follow the SIP program? Typically, county probation would supervise a probation term that is consecutive to a term of SIP. The court has the option to request special probation to be supervised by the Pennsylvania Board of Probation and Parole (PBPP). Have there been any recent changes to the SIP statute? Act (which became effective 11/24/2008) allows the DOC to request an eligible state prisoner be considered for SIP. It still requires the District Attorney s consent to the placement and sentence modification. The resentencing must occur within 365 days of the placement in DOC custody. Miscellaneous Can a judge grant early parole to an inmate who is serving a county jail sentencing? No. County inmates cannot be paroled prior to the expiration of their minimum sentence unless at sentencing, the judge made the defendant eligible for a reentry plan (effective 11/24/2008, Act ). Would a RRRI (Recidivism Risk Reduction Incentive) minimum apply to an offender receiving a state sentence but to be served in a county jail? No. Only offenders who are being committed to the custody of the PA Department of Corrections would be eligible for a RRRI minimum. For second and subsequent drug offenses, why is there no doubling of the guideline recommendation to reflect the doubling of the maximum as provided in statute? The guidelines have been developed with some consideration of proportionality: primary consideration of the current offense, and secondary consideration of the previous criminal convictions. Through this structure, previous drug offenses are taken into account systematically via the prior record score, just as occurs with other criminal offenses. However, a number of provisions are available in both Pennsylvania and federal statutes to address certain serious and repeat offenses [drug offenses, DUI, etc.]. In the case of mandatories, such provisions supersede the guideline recommendations. What factors may be considered for aggravating/mitigating? The court may consider any factor which is legally cognizable, except a factor which is included in determining the offense gravity score, prior record score, or enhancement. Updated: 01/2010 Page 8 of 9

9 Who has the burden of proof for guideline-related determinations? Is burden 'reasonable doubt' or 'preponderance?' In general terms, the court is required to make a determination based on a preponderance of the evidence, with the burden placed on the prosecution. An exception to this rule is related to calculation of the prior record score, in which the burden of alleging invalid prior convictions rests on the defense. How do the guidelines affect Magisterial District Judges? The Commission only requires courts of record to submit the guidelines electronically to the Pennsylvania Commission on Sentencing (via SGS Web). Therefore, MDJs would not be required to submit their sentences to the Sentencing Commission. Although statute requires consideration of sentencing guidelines for the sentencing of all misdemeanor and felony convictions. All sentencing for such offenses should consider the guidelines. Updated: 01/2010 Page 9 of 9