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THE COURTS

Title 204--JUDICIAL SYSTEM GENERAL PROVISIONS

PENNSYLVANIA COMMISSION ON SENTENCING

[204 PA. CODE CH. 303]

Adoption of Sentencing Guidelines

[27 Pa.B. 1252]

   The Pennsylvania Commission on Sentencing is hereby submitting revised sentencing guidelines, (204 Pa. Code § 303.1--§ 303.18) for consideration by the General Assembly. The Commission adopted the revised sentencing guidelines on June 6, 1996, published them for comment at 26 Pa.B. 3404 (July 20, 1996), and held public hearings on August 29, 1996, September 4, 1996 and September 6, 1996. The Commission modified the proposed guidelines on December 5, 1996, published them for comment at 27 Pa.B. 289 (January 18, 1997), and held a public hearing on February 21, 1997. Immediately following the public hearing, the Commission adopted the revised sentencing guidelines found in Annex A.

   As specified by statute, the General Assembly has ninety days from the date of this publication [March 15, 1997] to review the revisions to the sentencing guidelines (42 Pa.C.S. § 2155). Unless rejected by concurrent resolution during that period, these revised guidelines will become effective on Friday, June 13, 1997 and will apply to all offenses committed on or after that date.

SENATOR DAVID HECKLER
   
Chair

Commentary on Annex A

Reasons for Changes to the Guidelines

   After an extensive multi-year review of the guidelines, a revised set of sentencing guidelines became effective on August 12, 1994. The Commission is proposing changes to these sentencing guidelines for the following reasons. First, there were concerns brought to the attention of the Commission that the revised recommendations for violent offenders, particularly for repeat violent offenders, were not harsh enough. The Commission evaluated this issue and agreed that some violent offenders warranted more severe sentences than the current guidelines recommend. The second reason for changing the guidelines is to address the new legislation passed since the revised guidelines took effect. In January, 1995, Governor Tom Ridge convened a Special Session on Crime [Special Session No. 1] that, along with the regular legislative session [1995-1996 Session], resulted in the passage of a number of new laws. One of the most notable was the adoption of the '3 strikes' legislation that revised the mandatory sentences for violent offenders. The Commission is proposing changes that provide some consistency between the '3 strikes' legislation and the guidelines. The third reason for some of the proposed changes is to address areas of inconsistency in the guidelines. The proposed changes provide better consistency in how offenses are viewed with respect to Offense Gravity Score ranking (OGS) and Prior Record Score (PRS) calculations.

Revisions to Sentence Recommendations

   1.  More severe sentences for violent offenders. The current guidelines focus on providing harsher penalties for violent offenders while recommending community based alternatives for certain non-violent offenders. However, concerns have been raised that the sentences for certain violent offenders, particularly repeat violent offenders, are not harsh enough. The Commission re-evaluated the recommendations for violent offenders and decided that the concerns were justified and thus, is proposing more severe sentence recommendations for violent offenders. Some of the violent offenses have been re-ranked in order to address this issue. The Commission is also proposing harsher sentence recommendations in response to legislative changes that increased the statutory limit for Murder 3 and inchoate murder (attempts, solicitations and conspiracies) and that re-drafted the sexual assault statute.

   2.  '3 strikes' offenses. In 1995 the legislature passed, and the Governor signed, a '3 strikes' statute that provides harsher mandatory penalties for certain violent offenders. To provide some consistency between the '3 strikes' legislation and the guideline recommendations, the Commission decided to include the offenses designated as ''crimes of violence'' in the '3 strikes' legislation in the upper tier of the guidelines that recommend state incarceration in all cases. The major change involves assigning a higher Offense Gravity Score ranking to the offense of Burglary (structure adapted for overnight accommodation/person present) so that it is ranked in the upper tier of the guidelines with the most serious offenses.

   3.  More severe sentences for Repeat Felony 1/Felony 2 (RFEL) offenders. The current guidelines include a Prior Record Score category for Repeat Felony 1/Felony 2 (RFEL) offenders. This category was created to isolate the more serious felony offenders. The Commission is proposing an increase in sentence recommendations for such offenders.

   4.  Revision of RS-RIP cells. The current guideline recommendation for four cells of the matrix is RS-RIP (i.e.--sentence recommendations limited to restorative sanctions and restrictive intermediate punishments), which recommends up to 30 days in a restrictive intermediate punishment program but does not recommend incarceration. The Commission proposes that these recommendations be changed to RS-1, thus expanding the cells to include 30 days of incarceration. This is consistent with Commission policy that has established a rough equivalency between restrictive intermediate punishment and incarceration in areas of the matrix that allow for incarceration. That is, the maximum length of time in an RIP program is the same as the maximum length of confinement. Allowing 30 days of incarceration also provides more flexibility for counties that do not have Intermediate Punishment sentencing authority or resources to support RIP programs.

   5.  Expand sentencing levels. Current guidelines provide four sentencing levels which target certain types of offenders and describe sentencing options available for each level. The proposed guidelines increase to five the number of sentencing levels. Previous Level 4 is proposed as Level 5, and the newly proposed Level 4 generally includes those offenders who by statute are permitted to serve a state sentence in a county facility.

   6.  Limit Level 1 recommendations. Current guidelines provide a standard sentence recommendation of RS for offenders with an OGS of 1 or 2 and PRS of 0 or 1. The proposed guidelines would continue to provide RS as a standard recommendation for offenders who have an OGS=1 or 2 and PRS=0, but would expand the recommendations for offenders with a PRS=1 to include an incarceration option.

   7.  Permit Level 4 RIP exchange. Currently, the guidelines allow for an exchange of RIP for certain offenders who would otherwise receive a county jail sentence (i.e. maximum sentence under two years and minimum sentence under one year). The proposed change would allow an RIP exchange for certain state offenders who are eligible to serve their sentence in a county jail (i.e. maximum sentence under five years and minimum sentence under 2.5 years). This proposed change is indicated by the dark grey areas of the grid and referenced as Level 4.

   8.  Deadly Weapon Enhancement (DWE). Statute requires the guidelines to provide for enhanced sentences if the offender possessed a deadly weapon during the commission of the offense. Currently the amount of time is based upon the seriousness of the offense. The Commission is proposing that the DWE also make a distinction between offenders who use vs. possess the weapon during the commission of the offense.

Revisions to the Offense Gravity Score

   1.  Redefine OGS categories. The Commission is proposing an increase in the number of Offense Gravity Score categories from thirteen to fourteen. Included in this increase are two additional categories in the upper tier of the guidelines where recommendations are limited to state incarceration and one less Offense Gravity Score category in the area of the guidelines where recommendations are generally limited to county incarceration.

   2.  New/Amended Offenses. Legislation passed since the last adoption of sentencing guidelines [May 1994] and the end of the 1996 Session [December 1996] created new offenses or amended previously existing offenses. Additionally, due to the changes in the Offense Gravity Score categories, a number of offenses previously assigned OGS scores have been changed. The proposed OGS and PRS assignment for offenses considered by the Commission are included as part of the text of the proposed guidelines.

   3.  Omnibus Offense Gravity Score Policy. The Commission has a policy that provides for an Omnibus Offense Gravity Score to be applied to new offenses or offenses that have a change in the statutory grading. The omnibus score, which is based upon the statutory grade of the offense, remains in place until the Commission has the opportunity to rank the offense. Recently, however, the General Assembly increased the statutory grading of some offenses (e.g. attempted murder was changed from a felony 2 to a felony 1) that ended up resulting in a lower recommendation based upon the omnibus score. The Commission is proposing a change to the omnibus policy to assure that when the statutory grading for an offense is raised, that the omnibus score for the offense does not result in a lower score, and thus lower recommendation, than what currently exists.

Revisions to the Prior Record Score

   1.  Assignment of points. The Commission is proposing changes in how offenses are counted for the purposes of the Prior Record Score (PRS). These changes provide better consistency between how these offenses are counted in the Prior Record Score and how they are ranked for the Offense Gravity Score. Under the proposal, 4 points are assigned to all completed ''three strikes'' offenses. Some of these violent offenses, in particular Arson (F1) and Robbery (F1) are subcategorized for Prior Record Score purposes. Three points are assigned to all inchoates of 4 point offenses, certain drug felonies involving 50 grams or more, and all F1 offenses not otherwise designated. Two points are assigned to the remaining drug felonies and all F2 offenses not otherwise designated. One point is assigned to all F3 offenses, and an expanded list of designated Misdemeanor 1 offenses. The M1 offenses, chosen due to the serious nature of the offenses, fall into three categories: M1 offenses involving weapons, M1 offenses involving death or danger to children, and M1 Driving Under the Influence. All other misdemeanors, including M2 or M3 weapons misdemeanors, are designated as ''Other Misdemeanors'' and scored collectively based upon the total number of misdemeanors involved.

   2.  Prior juvenile offenses. The Commission is proposing two changes concerning the use of prior juvenile adjudications. First, in accordance with the recent legislative change that allows prior juvenile adjudications to be considered in the sentencing for misdemeanor offenses (Act 13 of 1995), the Commission is proposing a change to the juvenile adjudication criteria that would also allow prior juvenile offenses to count when the currently sentenced offense is either a felony or misdemeanor. Currently, they can only count when the current offense is a felony. Second, the Commission is proposing a change to the juvenile lapsing provision that includes the completed '3-strikes' offenses (i.e.--4 point PRS offenses) in the list of juvenile offenses that would never lapse for the purposes of Prior Record Score calculation.

   3.  Former Pennsylvania offenses. The Commission is proposing several changes in Prior Record Score miscellaneous provisions. The first proposal is to reinsert in the text a phrase contained in the 1991 guidelines but inadvertently omitted from the 1994 guidelines: ''When a prior conviction is for a crime which has a summary grade, and the grade of the conviction is unknown, the prior conviction shall not be counted in the Prior Record Score.''

   4.  Excluded offenses. The Commission also proposes a change to the policy regarding excluded offenses. The current policy holds that if a previous conviction increases the maximum sentence applicable to the current offense, the previous conviction is excluded from calculation of the Prior Record Score. The proposal changes the text by replacing maximum sentence applicable to the current offense with grade of a subsequent offense, a phrase similar to that used in the original text of the guidelines. The original text was revised in 1986, primarily to accommodate drug convictions. However, the text was revised again in 1988, at which time the drug convictions were excluded from the policy. This proposal simplifies the policy by returning to the original term. The proposal would also extend the policy so that any previous conviction that increases the grade of an offense, either a current or previous offense, would be excluded from calculation of the Prior Record Score. This proposal removes the 'double counting' of a conviction, which was the premise of this policy.

Definition of Transaction

   The current guidelines utilize the concept of transaction to determine how the prior record is applied to multiple offenses and how current multiple offenses are counted in future Prior Record Scores. The definition of transaction is important as it influences current and future sentence recommendations. The current definition of transaction has resulted in confusion in the field and has been interpreted in different ways among the counties. Thus, the Commission proposes deleting the current definition of transaction and adopting a policy which considers each conviction separately and takes into account the sentence previously imposed in determining the Prior Record Score. Under the proposal, all prior convictions are counted in the Prior Record Score, except those which did not increase a term of probation, intermediate punishment, partial or total confinement. In determining the sentence recommendation, the Prior Record Score is attached to each conviction offense.

Guideline recommendations for Driving Under the Influence (DUI) and Homicide by Vehicle while DUI

   Currently, the only two offenses that do not have an Offense Gravity Score (OGS) assigned to them are Driving Under the Influence (75 Pa.C.S. § 3731) and Homicide by Vehicle while DUI (75 Pa.C.S. § 3735). The guideline recommendation for these two offenses has always been application of the mandatory statute governing them. The proposed change would assign an OGS = 2 to Driving Under the Influence when it is a M2 (1st or 2nd conviction) and an OGS = 3 when it is a M1 (3rd or subsequent conviction). An OGS = 8 would be assigned to Homicide by Vehicle while DUI. As always, any mandatory statute governing these offenses would supersede the guideline recommendations.

   The Commission also is proposing the elimination of the subcategorization of DUI according to whether there is serious bodily injury or not, in light of the new offense of Aggravated Assault by Vehicle while DUI. The proposed OGS scores for Homicide by Vehicle and Involuntary Manslaughter when there is also a conviction for DUI were raised to be consistent with the recommendation for Aggravated Assault.

   It should be noted that with incorporation of DUI into the sentencing guidelines, the Prior Record Score, based on previous DUI and non-DUI offenses, will be used to determine a sentence recommendation for a current conviction for DUI.

Multiple offenses overlapping different guidelines

   Current guideline policy states that the guidelines apply to offenses that occur on or after the effective date of the guidelines. When there are amendments to the guidelines, offenses that occur before the effective date of the amendments are subject to the prior guidelines, while offenses that occur after the effective date of the amendments are subject to the new guidelines. When there are multiple offenses and the dates of the offenses are unknown, there has been no guideline policy. Thus, the Commission is proposing a policy that would indicate that the most recent guidelines apply if the specific dates are undetermined.

Technical changes

   The Commission proposes three technical changes to the guidelines: 1) a clarification that the guidelines do apply to persons who plead guilty or nolo contendere, not just to persons found guilty through trial; 2) that the Guideline Sentence Form be submitted to the Commission within 30 days, rather than 20 days, of sentencing; and 3) clarification that the original guidelines were effective July 22, 1982 and were invalidated due to a procedural technicality, but that new guidelines did become effective again April 25, 1988.

Annex A

TITLE 204.  JUDICIAL SYSTEM GENERAL PROVISIONS

PART VIII.  CRIMINAL SENTENCING

CHAPTER 303.  SENTENCING GUIDELINES

§ 303.1.  Sentencing guidelines standards.

   (a)  The court shall consider the sentencing guidelines in determining the appropriate sentence for offenders convicted of, or pleading guilty or nolo contendere to, felonies and misdemeanors.

   (b)  The sentencing guidelines do not apply to sentences imposed as a result of the following: accelerated rehabilitative disposition; disposition in lieu of trial; direct or indirect contempt of court; violations of protection from abuse orders; revocation of probation, intermediate punishment or parole.

   (c)  The sentencing guidelines shall apply to all offenses committed on or after the effective date of the guidelines. Amendments to the guidelines shall apply to all offenses committed on or after the date the amendment becomes part of the guidelines.

   (1)  When there are current multiple convictions for offenses that overlap two sets of guidelines, the former guidelines shall apply to offenses that occur prior to the effective date of the amendment and the later guidelines shall apply to offenses that occur on or after the effective date of the amendment. If the specific dates of the offenses cannot be determined, then the later guidelines shall apply to all offenses.

   (2)  The initial sentencing guidelines went into effect on July 22, 1982 and applied to all crimes committed on or after that date. Amendments to the guidelines went into effect in June 1983, January 1986 and June 1986. On October 7, 1987 the Pennsylvania Supreme Court invalidated the guidelines due to a procedural error that occurred in 1981 when the legislature rejected the first set of guidelines. New guidelines were drafted and became effective on April, 25, 1988. Amendments to the guidelines went into effect August 9, 1991 and December 20, 1991. A revised set of guidelines became effective August 12, 1994. The current set of guidelines become effective June 13, 1997.

   (d)  In every case in which the court imposes a sentence for a felony or misdemeanor, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. In every case where the court imposes a sentence outside the sentencing guidelines, the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. These reasons shall be recorded on the Guideline Sentence Form, a copy of which is forwarded to the Commission on Sentencing.

   (e)  A Pennsylvania Commission on Sentencing Guideline Sentence Form shall be completed at the court's direction and shall be made a part of the record no later than 30 days after the date of each sentencing and a copy shall be forwarded to the Pennsylvania Commission on Sentencing.

§ 303.2.  Procedure for determining the guideline sentence.

   (a)  The procedure for determining the guideline sentence shall be as follows:

   (1)  Determine the Offense Gravity Score as described in §§ 303.3 and 303.15.

   (2)  Determine the Prior Record Score as described in §§ 303.4--303.8.

   (3)  Determine the guideline sentence recommendation as described in §§ 303.9--303.14, including Deadly Weapon Enhancement and Youth/School Enhancement (§ 303.10), and aggravating or mitigating circumstances (§ 303.13).

§ 303.3.  Offense gravity score--general.

   (a)  An Offense Gravity Score is given for each offense. The Offense Gravity Scores are located in § 303.15.

   (b)  Subcategorized offenses. Certain offenses are subcategorized and scored by the Commission according to the particular circumstances of the offense. The court determines which Offense Gravity Score, located in § 303.15, applies. These offenses are designated by an asterisk [*].

   (c)  Inchoate offenses. Inchoate offenses are scored as follows:

   (1)  Convictions for attempt, solicitation, or conspiracy to commit a Felony 1 offense receive an Offense Gravity Score of one point less than the offense attempted, solicited, or which was the object of the conspiracy.

   (2)  Convictions for attempt, solicitation, or conspiracy to commit any offense which is not a Felony 1 offense, receive the Offense Gravity Score of the offense attempted, solicited, or which was the object of the conspiracy.

   (3)  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 Offense Gravity Score of the offense attempted, solicited, or which was the object of the conspiracy.

   (4)  Exception for inchoate murder convictions. Convictions for attempt, solicitation, or conspiracy to commit murder receive the Offense Gravity Score of 14 if there is serious bodily injury and 13 if there is no serious bodily injury.

   (d)  Ethnic Intimidation. Convictions for Ethnic Intimidation (18 Pa. C.S. § 2710) receive an Offense Gravity Score that is one point higher than the offense which was the object of the Ethnic Intimidation. When the object offense is Murder of the Third Degree, a conviction for Ethnic Intimidation receives the highest Offense Gravity Score.

   (e)  Violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 P. S. §§ 780-101--780-144). 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 which has the highest Offense Gravity Score.

   (1)  Exception for prescription pills. The exception to subsection (e) above is for violations of 35 P. S. § 780-113 (a)(12) (relating to fraudulent prescriptions) when prescription pills of Schedule II are involved. For such violations it is the number of pills rather than the amount of the controlled substance which is considered in determining the Offense Gravity Score. (See § 303.15.)

   (f)  Omnibus Offense Gravity Scores. The Omnibus Offense Gravity Score is applied when the offense is not otherwise listed in § 303.15, or when the grade of an offense listed in § 303.15 has changed, unless application of this section would result in a lower Offense Gravity Score for an increased grading of the offense. The Omnibus Offense Gravity Scores are provided below and in the listing at § 303.15:

Felony 1 8
Felony 2 7
Felony 3 5
Felonies not subclassified
      by the General Assembly
5
Misdemeanor 1 3
Misdemeanor 2 2
Misdemeanor 3 1
Misdemeanors not subclassified
      by the General Assembly
1

§ 303.4.  Prior Record Score--categories.

   (a)  Prior Record Score categories. Determination of the correct Prior Record Score category under this section is based on the type and number of prior convictions (§ 303.5) and prior juvenile adjudications (§ 303.6). There are eight Prior Record Score categories: Repeat Violent Offender [REVOC], Repeat Felony 1 and Felony 2 Offender [RFEL], and point-based categories of 0, 1, 2, 3, 4 and 5.

   (1)  Repeat Violent Offender Category [REVOC]. Offenders who have two or more previous convictions or adjudications for four point offenses (§ 303.7(a)(1) and § 303.15) and whose current conviction carries an Offense Gravity Score of 9 or higher shall be classified in the Repeat Violent Offender Category.

   (2)  Repeat Felony 1/Felony 2 Offender Category [RFEL]. Offenders who have previous convictions or adjudications for Felony 1 and/or Felony 2 offenses which total 6 or more in the prior record, and who do not fall within the Repeat Violent Offender Category, shall be classified in the repeat Felony 1/Felony 2 Offender Category.

   (3)  Point-based Categories (0-5). Offenders who do not fall into the REVOC or RFEL categories shall be classified in a Point-based Category. The Prior Record Score shall be the sum of the points accrued based on previous convictions or adjudications, up to a maximum of five points.

§ 303.5.  Prior Record Score--prior convictions.

   (a)  All prior convictions shall be counted in the Prior Record Score, except certain prior convictions from sentences described in (b).

   (b)  When a sentence for a prior conviction was imposed totally concurrent to another sentence, or was served totally concurrent to another sentence, only the conviction with the greatest number of points under § 303.7 shall be counted.

   (c)  Totally concurrent. A conviction is considered totally concurrent if the sentence imposed did not increase the term of probation, intermediate punishment, partial or total confinement of any sentence.

§ 303.6.  Prior Record Score--prior juvenile adjudications.

   (a)  Juvenile adjudication criteria. Prior juvenile adjudications are counted in the Prior Record Score when the following criteria are met:

   (1)  The juvenile offense occurred on or after the offender's 14th birthday, and

   (2)  There was an express finding by the juvenile court that the adjudication was for a felony or one of the Misdemeanor 1 offenses listed in § 303.7(a)(4).

   (b)  Only the most serious juvenile adjudication of each prior disposition is counted in the Prior Record Score. No other prior juvenile adjudication shall be counted in the Prior Record Score.

   (c)  Lapsing of juvenile adjudications. Prior juvenile adjudications for four point offenses listed in § 303.7(a)(1) shall always be included in the Prior Record Score, provided the criteria in subsection (a) above are met:

   (1)  All other juvenile adjudications not identified above in subsection (a) lapse and shall not be counted in the Prior Record Score if the offender was 28 years of age or older at the time the current offense was committed.

   (2)  Nothing in this section shall prevent the court from considering lapsed prior adjudications at the time of sentencing.

§ 303.7.  Prior Record Score--guideline points scoring.

   (a)  Scoring of prior convictions and adjudications is provided below and in the listing of offenses at § 303.15:

   (1)  Four Point Offenses. Four points are added for each prior conviction or adjudication for the following offenses:

   Murder, and attempt, solicitation or conspiracy to commit Murder
   Voluntary Manslaughter
   Drug Delivery Resulting in Death
   Aggravated Assault (causing serious bodily injury)
   Kidnapping
   Rape
   Involuntary Deviate Sexual Intercourse
   Arson (resulting in bodily injury or a person inside at start)
   Burglary (adapted structure, person present)
   Robbery (inflicts serious bodily injury)
   Robbery of Motor Vehicle (inflicts serious bodily injury)
   Ethnic Intimidation to any Felony 1 offense

   (2)  Three Point Offenses. Three points are added for each prior conviction or adjudication for the following offenses:

   All other Felony 1 offenses not listed in § 303.7 (a)(1).
   All inchoates to offenses listed in § 303.7 (a)(1).
   Sexual Assault
   Aggravated Indecent Assault
   Violation of 35 P. S.§§ 780-113(a)(12)(14) or (30) involving 50 grams or more, including inchoates involving 50 grams or more.

   (3)  Two Point Offenses. Two points are added for each prior conviction or adjudication for the following offenses:

   All other Felony 2 offenses not listed in § 303.7 (a)(1) or (a)(2).
   All felony drug violations not listed in § 303.7 (a)(2), including inchoates.

   (4)  One Point Offenses. One point is added for each prior conviction or adjudication for the following offenses:

   All other felony offenses not listed in § 303.7 (a)(1), (a)(2) or (a)(3).
   Any of the following Misdemeanor 1 offenses that involve weapons:
   Possessing Instruments of Crime
   Prohibited Offensive Weapons
   Possession of Weapon on School Property
   Possession of Firearm or Other Dangerous Weapon in Court Facility
   Violations of the Pennsylvania Uniform Firearms Act

   Any of the following Misdemeanor 1 offenses that involve death or danger to children:
   Involuntary Manslaughter
   Simple Assault (against child by adult)
   Luring a Child into a Vehicle
   Indecent Assault (involving minors)
   Indecent Exposure (person less than age 16 present)
   Endangering Welfare of Children
   Dealing in Infant Children
   Corruption of Minors (of a sexual nature)
   Homicide by Vehicle

   Driving Under the Influence of Alcohol or Controlled Substance when the grade is a Misdemeanor 1.

   (5)  Other Misdemeanor Offenses. All other misdemeanor offenses are designated by an ''m'' in the offense listing at § 303.15, and are scored as follows:

   (i)  One point is added if the offender was previously convicted of two or three misdemeanors.

   (ii)  Two points are added if the offender was previously convicted of four to six misdemeanors.

   (iii)  Three points are added if the offender was previously convicted of seven or more misdemeanors.

§ 303.8.  Prior Record Score--miscellaneous.

   (a)  Prior convictions and adjudications of delinquency. A prior conviction means ''previously convicted'' as defined in 42 Pa.C.S. § 2154(a)(2). A prior adjudication of delinquency means ''previously adjudicated delinquent'' as defined in 42 Pa.C.S. § 2154(a)(2). In order for an offense to be considered in the Prior Record Score, both the commission of and conviction for the previous offense must occur before the commission of the current offense.

   (b)  Inchoate offenses. Unless otherwise provided in § 303.7 or § 303.15, a prior conviction or adjudication of delinquency for criminal attempt, criminal solicitation or criminal conspiracy is scored under § 303.7 based upon the grade of the inchoate offense.

   (c)  Ethnic Intimidation. Unless otherwise provided in § 303.7 or § 303.15, a prior conviction or adjudication of delinquency for Ethnic Intimidation is scored under § 303.7 based upon the grade of the Ethnic Intimidation.

   (d)  Former Pennsylvania offenses.

   (1)  A prior conviction or adjudication of delinquency under former Pennsylvania law is scored as a conviction for the current equivalent Pennsylvania offense.

   (2)  When there is no current equivalent Pennsylvania offense, prior convictions or adjudications of delinquency are scored under § 303.7 based on the grade of the offense. When a prior conviction or adjudication of delinquency was for a felony, but the grade of the felony is unknown, it shall be treated as a Felony 3. When a prior conviction was for a misdemeanor, but the grade of the misdemeanor is unknown, it shall be treated as a Misdemeanor 3. When it cannot be determined if the prior conviction was a felony or a misdemeanor, it shall be treated as a Misdemeanor 3. When a prior conviction is for a crime which has a summary grade, and the grade of the conviction is unknown, the prior conviction shall not be counted in the Prior Record Score.

   (e)  A prior conviction or adjudication of delinquency for an offense which was misgraded is scored as a conviction for the current equivalent Pennsylvania offense.

   (f)  Out-of-state, federal or foreign offenses.

   (1)  An out-of-state, federal or foreign conviction or adjudication of delinquency is scored as a conviction for the current equivalent Pennsylvania offense.

   (2)  When there is no current equivalent Pennsylvania offense, determine the current equivalent Pennsylvania grade of the offense based on the maximum sentence permitted, and then apply § 303.8(d)(2).

   (g)  Excluded offenses. The following types of offenses shall not be scored in the Prior Record Score:

   (1)  Summary offenses, violations of local ordinances, and dispositions under Pa.R.Crim.P. Rules 175-186 (relating to accelerated rehabilitative disposition), 35 P. S. § 780-117 (relating to probation without verdict) or 35 P. S. § 780-118 (relating to disposition in lieu of trial or criminal punishment), shall not be used in computing the Prior Record Score.

   (2)  Any prior conviction which contributed to an increase in the grade of a subsequent conviction shall not be used in computing the Prior Record Score.

§ 303.9.  Guideline sentence recommendation: general.

   (a)  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). 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].

   (b)  Deadly Weapon Enhancement sentence recommendations. If the court determines that an offender possessed a deadly weapon pursuant to § 303.10(a)(1), the court shall instead consider the DWE/Possessed Matrix (§ 303.17). If the court determines that an offender used a deadly weapon pursuant to § 303.10(a)(2), the court shall instead consider the DWE/Used Matrix (§ 303.18). Both enhanced matrices specify 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].

   (c)  Youth/School Enhancement sentence recommendations. If the court determines that an offender violated the drug act pursuant to § 303.10(b), 12 months shall be added to the lower limit of the standard range of the applicable sentencing matrix and 36 months shall be added to the upper limit of the standard range of the applicable sentencing matrix. The range of sentences (i.e.-- standard range) shall be considered by the court for each combination of Offense Gravity Score [OGS] and Prior Record Score [PRS].

   (d)  Aggravated and mitigated sentence recommendations. To determine the aggravated and mitigated sentence recommendations, apply § 303.13.

   (e)  Numeric sentence recommendations. All numbers in sentence recommendations suggest months of minimum confinement pursuant to 42 Pa.C.S. § 9755(b) (partial confinement) and § 9756(b) (total confinement).

   (f)  Alphabetic sentence recommendations. RS in the sentence recommendation, an abbreviation for Restorative Sanctions, suggests use of the least restrictive, non-confinement sentencing alternatives described in 42 Pa.C.S. § 9753 (determination of guilt without further penalty), § 9754 (order of probation) and § 9758 (fine), and include § 9763 (intermediate punishment) when limited to restorative sanction programs (see § 303.12(a)(5)). 42 Pa.C.S.§ 9721(c) (mandatory restitution) is also included in RS. No specific recommendations are provided for periods of supervision or amounts of fines for these non-confinement sentencing alternatives. RIP in the sentence recommendation, an abbreviation for Restrictive Intermediate Punishments, suggests use of Restrictive Intermediate Punishments pursuant to § 303.12(a)(4).

   (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)  Driving Under the Influence. The court shall consider the sentence recommendations pursuant to this section (§ 303.9) for an offender convicted under 75 Pa.C.S. § 3731 (Driving Under the Influence of Alcohol or Controlled Substance). The court may use a qualified Restrictive Intermediate Punishment pursuant to § 303.12(a)(6) to satisfy the mandatory minimum requirement.

§ 303.10.  Guideline sentence recommendations: enhancements.

   (a)  Deadly Weapon Enhancement.

   (1)  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). 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 defendant intended to use the weapon to threaten or injure another individual.

   (2)  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 (§ 303.18). 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 or in the furtherance of the crime:

   (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:
   Possessing Instruments of Crime
   Prohibited Offensive Weapons
   Possession of Weapon on School Property
   Possession of Firearm or Other Dangerous Weapon in    Court Facility
   Simple Assault (18 Pa.C.S. § 2701(a)(2))
   Aggravated Assault (18 Pa.C.S. § 2702(a)(4))
   Violations of the Pennsylvania Uniform Firearms Act
   Any other offense for which possession of a deadly    weapon is an element of the statutory definition.

   (4)  The Deadly Weapon Enhancement shall apply to each conviction offense for which a deadly weapon is possessed or used.

   (b)  Youth/School Enhancement

   (1)  When the court determines that the offender either distributed a controlled substance to a person or persons under the age of 18 in violation of 35 P. S. § 780-114, or manufactured, delivered or possessed with intent to deliver a controlled substance within 1000 feet of a public or private elementary or secondary school, the court shall consider the range of sentences described in § 303.9(c).

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

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

§ 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. 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. To facilitate consideration of sentencing options consistent with the intent of the sentencing guidelines, the Commission has established five sentencing levels. Each level targets certain types of offenders, and describes ranges of sentencing options available to the court.

   (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, Deadly Weapon Enhancement or Youth/School Enhancement) applies. 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 Restorative Sanctions [RS]. The primary purpose of this level is to provide the minimal control necessary to fulfill court-ordered obligations. The following sentencing option is available:

   Restorative Sanctions (see § 303.9(f))

   (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 incarceration and non-confinement. 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. The following sentencing options are available:

   Total confinement in a county facility under a county    sentence (see 61 P. S. § 331.17).

   Partial confinement in a county facility

   Restrictive Intermediate Punishments (see § 303.12(a)    for eligibility criteria)

   Restorative Sanctions (see § 303.9(f))

   (3)  Level 3--Level 3 provides sentence recommendations for serious offenders and those with numerous prior convictions, such that the standard range requires incarceration or a Restrictive Intermediate Punishment [RIP], but in all case permits a county sentence. The standard range is defined as having a lower limit of incarceration of less than 12 months. 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. The following sentencing options are available:

   Total confinement in a state facility.

   Total confinement in a state facility, with participation    in the State Motivational Boot Camp (see § 303.12(b)    for eligibility criteria)

   Total confinement in a county facility under a state or    county sentence (see 61 P. S. § 331.17).

   Partial confinement in a county facility.

   Restrictive Intermediate Punishment (see § 303.12(a)    for eligibility criteria)

   (4)  Level 4--Level 4 provides sentence recommendations for very serious offenders and those with numerous prior convictions, such that the standard range requires state incarceration but permits it to be served in a county facility. The standard range is defined as having a lower limit of incarceration of greater than 12 months but less than 30 months, but limited to offenses with an Offense Gravity Score of less than 9. The primary purposes of the sentencing options at this level are punishment and incapacitation. However, it is recognized that certain offenders at this level are permitted to serve a sentence of total confinement in a county facility, and some non-violent offenders may benefit from drug and alcohol treatment. The following sentencing options are available:

   Total confinement in a state facility.

   Total confinement in a state facility, with participation    in the State Motivational Boot Camp (see § 303.12(b)    for eligibility criteria)

   Total confinement in a county facility as a state    offender. (see 61 P. S. § 331.17).

   Restrictive Intermediate Punishment (see § 303.12.(a)    for eligibility criteria)

   (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 or the standard range requires state incarceration in a state facility. The standard range in such a case is defined as having a lower limit of 30 months or greater. 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. The following sentencing options are available:

   Total confinement in a state facility.

   Total confinement in a state facility, with participation    in the State Motivational Boot Camp (see § 303.12(b)    for eligibility criteria)

§ 303.12.  Guideline sentence recommendations: sentencing programs.

   (a)  County intermediate punishment program.

   (1)  Eligibility.

   (i)  The following regulations and statutes govern operation of and eligibility for county intermediate punishment programs:

   37 Pa. Code § 451.1 et seq.

   42 Pa.C.S. § 9729, § 9763, and § 9773.

   61 P. S. § 1101--§ 1114.

   204 Pa.Code Chapter 303.

   (ii)  Sentence recommendations which include an option of Restrictive Intermediate Punishments for certain offenders are designated as shaded cells in the guideline matrices.

   (2)  The county intermediate punishment plan provides a mechanism to advise the court of the extent and availability of services and programs authorized in the county. This plan includes information on the appropriate classification and use of county programs based on program-specific requirements.

   (3)  Intermediate punishments classifications. In order to incorporate intermediate punishment programs into the sentencing levels, the Commission has classified intermediate punishment programs as Restrictive Intermediate Punishments (RIP) and restorative sanction programs. Additionally, specific intermediate punishment programs have been identified in legislation (42 Pa.C.S. § 9763(c)) and regulation (37 Pa. Code § 451.52) as authorized sentences for conviction under 75 Pa.C.S. § 3731(e) (relating to Driving Under the Influence of Alcohol or Controlled Substance); the Commission has classified these programs as qualified Restrictive Intermediate Punishments.

   (4)  Restrictive Intermediate Punishments (RIP). Restrictive Intermediate Punishments are defined as programs that provide for strict supervision of the offender. Restrictive Intermediate Punishments may be imposed only if the court has been granted sentencing authority by the Pennsylvania Commission on Crime and Delinquency (pursuant to 42 Pa.C.S. § 9729). The county intermediate punishment board is required to develop assessment and evaluation procedures to assure the appropriate targeting of offenders. All programs must meet the minimum standards provided in the Pennsylvania Commission on Crime and Delinquency regulations [37 Pa.Code Chapter 451] for intermediate punishments.

   (i)  Restrictive Intermediate Punishments (RIP) either:

   (A)  house the offender full or part time; or

   (B)  significantly restrict the offender's movement and monitor the offender's compliance with the program(s); or

   (C)  involve a combination of programs that meet the standards set forth above.

   (ii)  An offender under consideration for Restrictive Intermediate Punishments at Level 4 or Level 3 shall have a diagnostic assessment of dependency on alcohol or other drugs conducted by one of the following: the Pennsylvania Department of Health's Office of Drug and Alcohol Programs (ODAP) or a designee; the county authority on drugs and alcohol or a designee; or clinical personnel of a facility licensed by the Office of Drug and Alcohol Programs.

   (iii)  An offender assessed to be dependent shall be evaluated for purposes of a treatment recommendation by one of the above listed assessors. The evaluation shall take into account the level of motivation of the offender. If sentenced to a Restrictive Intermediate Punishment, the sentence shall be consistent with the level of care and length of stay prescribed in the treatment recommendation, regardless of the standard range sentencing recommendation.

   (iv)  An offender assessed as not in need of drug or alcohol treatment may be placed in any approved Restrictive Intermediate Punishment program. Each day of participation in a Restrictive Intermediate Punishment program or combination of programs shall be considered the equivalent of one day of total confinement.

   (v)  The court may impose a qualified Restrictive Intermediate Punishment in lieu of incarceration for any conviction under 75 Pa.C.S. § 3731 (relating to Driving Under the Influence of Alcohol or Controlled Substance).

   (5)  Restorative sanction programs. Restorative sanction programs are the least restrictive, non-confinement intermediate punishments. Restorative sanction programs are generally used in conjunction with Restrictive Intermediate Punishments as the level of supervision is reduced, but may also be used as separate sanctions under any of the non-confinement sentencing alternatives provided in the statute (see § 303.9(f)).

   (i)  Restorative sanction programs:

   (A)  are the least restrictive in terms of constraint of offender's liberties;

   (B)  do not involve the housing of the offender (either full or part time); and

   (C)  focus on restoring the victim to pre-offense status.

   (6)  Qualified Restrictive Intermediate Punishments. In accordance with 37 Pa. Code § 451.52 (relating to sentencing restrictions for driving under the influence convictions), qualified Restrictive Intermediate Punishment programs may be used to satisfy the mandatory minimum sentencing requirements of 75 Pa.C.S. § 3731.

   (i)  Qualified Restrictive Intermediate Punishment programs include:

   (A)  residential inpatient drug and alcohol programs or residential rehabilitative center programs; or

   (B)  house arrest and electronic monitoring combined with drug and alcohol treatment.

   (b)  State Motivational Boot Camp.

   (1)  Eligibility.

   (i)  The following statute governs operation of and eligibility for the State Motivational Boot Camp:

   61 P. S. § 1121--§ 1129

   (ii)  Sentence recommendations which include boot camp eligible offenders are designated by the letters BC in the cells of the Basic Sentencing Matrix (§ 303.16).

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