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THE GENERAL ASSEMBLY

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

COMMISSION ON SENTENCING

PART VIII. CRIMINAL SENTENCING

[ 204 PA. CODE CH. 307 ]

Adopted Resentencing Guidelines

[49 Pa.B. 5206]
[Saturday, September 7, 2019]

 On March 7, 2019, the Pennsylvania Commission on Sentencing approved for purposes of public comment proposed Resentencing Guidelines. The proposed Guidelines were published in the Pennsylvania Bulletin on April 27, 2019. Public hearings were held May 29 (Norristown, Montgomery County), June 6 (Ebensburg, Cambria County), and June 12 (Harrisburg, Dauphin County) of 2019.

 On June 13, 2019, the Commission on Sentencing adopted the Resentencing Guidelines. Any proposals adopted by the Commission are submitted to the General Assembly for review by way of publication in the Pennsylvania Bulletin, and will become effective 90 days after publication unless rejected by concurrent resolution of the General Assembly.

 Resentencing Guidelines, mandated by Act 81 of 2008, require the Commission to

''. . .adopt guidelines that shall be considered by the court when resentencing an offender following revocation of probation, county intermediate punishment, or state intermediate punishment. The guidelines shall take into account:
(1) factors considered in adopting the sentencing guidelines,

 (2) the seriousness of the violation, and

 (3) the rehabilitative needs of the defendant'' (42 Pa.C.S. § 2154.4).

 As no statewide data source existed, the Commission developed a revocation and resentencing module within SGS Web to collect resentencing information. Effective with Amendment 3 of the 7th Edition Sentencing Guidelines, the Commission required ''for all sentences imposed on or after January 1, 2016, all subsequent revocations of probation, county intermediate punishment, and state intermediate punishment and related resentences shall be reported to the Commission'' (§ 303.1(e)(2)).

 The Resentencing Guidelines are informed by an analysis of the revocations and resentences reported to the Commission since 2016 and provides resentencing recommendations for technical violations and conviction violations. These recommendations would apply to revocations of probation, county intermediate punishment, and state intermediate punishment.

 Resentencing Guidelines, as adopted by the Commission, are summarized as follows and set forth in Annex A.

JUDGE SHEILA A. WOODS-SKIPPER, 
Chair

Commentary on Annex A

 This Commentary provides information on the adopted Resentencing Guidelines. The adopted Resentencing Guidelines are set forth in Annex A.

Publication of Adopted Resentencing Guidelines

 The adopted Resentencing Guidelines are published in the Pennsylvania Code with other documents proposed or adopted by the Commission:

  Chapter 303—Sentencing Guidelines
  Chapter 305—Sentence Risk Assessment Instrument
  Chapter 307—Resentencing Guidelines
  Chapter 309—Parole Guidelines
  Chapter 311—Recommitment Ranges

§ 307.1—Preliminary provisions

 This section provides the legislative authority for the adoption of Resentencing Guidelines. Act 81 of 2008, 42 Pa.C.S. § 2154.4, requires the following:

The commission shall adopt guidelines that shall be considered by the court when resentencing an offender following revocation of probation, county intermediate punishment, or state intermediate punishment. The guidelines shall take into account:
(1) Factors considered in adopting the sentencing guidelines,
(2) The seriousness of the violation, and

 (3) The rehabilitative needs of the defendant.

 This section also sets forth definitions for the terms used in Chapter 307.

§ 307.2—Resentencing Guidelines standards

 This section provides the requirements for consideration of the Resentencing Guidelines and the reporting of information to the Commission. As required by the legislation, Resentencing Guidelines shall be considered by the court when imposing a new sentence following revocation of probation, county intermediate punishment or state intermediate punishment. Resentencing Guidelines do not apply to revocations of parole. All revocations of probation, county intermediate punishment and state intermediate punishment and subsequent resentences shall be reported through the Commission's JNET-based SGS Web application.

 A Revocation/Resentencing Module was developed within SGS Web, the Commission's JNET-based sentencing application. Counties voluntarily reported revocations and resentences beginning in November of 2011. With 7th Edition Amendment 3 Sentencing Guidelines, the Commission required the reporting any sentence of probation, county intermediate punishment or state intermediate punishment imposed on or after January 1, 2016 that was subsequently revoked and the reporting of the resentence. These data informed the development of the proposed Resentencing Guidelines. The Commission will continue to utilize this module within SGS Web for the reporting of revocations and resentences.

§ 307.3—Procedures for determining the guideline resentence

 This section provides the procedures for determining the guideline resentence recommendation, accounting for the factors considered in the initial sentencing guidelines and the seriousness of the violation. The initial sentencing guidelines, based on the offense gravity score for the initial conviction offense and the prior record score, as well as any applicable enhancements, serve as the starting point for Resentencing Guidelines, and apply to all technical violations. For more serious conviction violations, the initial sentence recommendation is generally enhanced.

 Violations of the terms and conditions of probation, county intermediate punishment or state intermediate punishment are determined by the court following a hearing. A technical violation involved the failure to comply with the terms and conditions of supervision, other than the commission of a new offense for which the offender is convicted in a court of record. A conviction violation involves the failure to comply with terms and conditions through the commission of a new offense during the period of supervision and resulting in a conviction for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.

§ 307.4—Guideline resentence recommendations

 This section recommends consideration of a risk-needs or a risk-needs-responsivity assessment prior to resentencing to address the rehabilitative needs of the offender. Underlying issues of drug or alcohol dependency, mental illness or other needs may be identified through an assessment and may inform decisions at resentencing that reduce the risk of future violations, including new offenses.

 When resentencing, this section also requires consideration of the recommendations related to sentencing levels, sentencing programs, aggravated and mitigated circumstances, and economic sanctions provided for in the Sentencing Guidelines.

Resource Utilization

 In accordance with 42 Pa.C.S.A. § 2153(a)(15), the Commission is mandated to determine resources required for Resentencing Guidelines. There are currently no resentencing guidelines. Any resentence up to the statutory maximum may be imposed.

 The Commission used revocations and resentences reported since January 1, 2016 to help inform the development of the Resentencing Guidelines. Of the Commonwealth's 67 counties, 58 counties reported revocations and resentences. The study included 14,791 first time revocations of probation, county intermediate punishment (CIP), and state intermediate punishment (SIP) and the subsequent resentences, unduplicated and exclusive of split sentences.

 Overall, analysis showed that more than 75% of the revoked sentences were Level 1 and 2 of the Sentencing Guidelines, and the majority (83%) were probation sentences. More than half reflected a PRS of 0. Therefore, the original sentences indicate relatively less serious offenses and less serious criminal histories and utilize county resources. Additionally, 78% of the revocations were due to technical violations. The majority of revoked probation and CIP sentences are resentenced to county incarceration. Most revoked SIP sentences are resentenced to state incarceration.

Technical Violations

 The Commission refers the court to the original Sentencing Guidelines for resentencing purposes for revocations due to technical violations. The proposed Resentencing Guidelines for technical violations are based on the original offense gravity score and original prior record score. All resentencing alternatives available to the court are the same as the sentencing alternatives available at the time of the initial sentencing.

 As the proposed Resentencing Guidelines are the same as the original Sentencing Guidelines, there is no change in resource utilization.

New Offense Conviction Violations

 A similar method is used for new offense conviction violations, with one modification. The Commission views new felony and misdemeanor offenses committed and convicted while under supervision as a more serious violation that should be enhanced in resentencing. As with technical violations, the court is referred to the original Sentencing Guidelines using the original offense gravity score. However, the prior record score is increased by one category, up to PRS 5.

 The proposed Resentencing Guidelines reflect current resentencing practices. Therefore, no change in resource utilization is anticipated.

Effective Date

 Resentencing Guidelines shall become effective January 1, 2020 unless disapproved by the General Assembly, pursuant to 42 Pa.C.S.A. § 2155(b).

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART VIII. CRIMINAL SENTENCING

CHAPTER 307. RESENTENCING GUIDELINES

Sec.

307.1.Preliminary provisions.
307.2.Resentencing Guidelines standards.
307.3.Procedure for determining the guideline resentence.
307.4.Guideline resentence recommendations.

§ 307.1. Preliminary provisions.

(a) Authorization.

 (1) As authorized by 42 Pa.C.S. § 2154.4 (relating to guidelines for resentencing), the Commission shall adopt guidelines that shall be considered by the court when resentencing an offender following the revocation of probation, county intermediate punishment, or state intermediate punishment.

 (2) The Resentencing Guidelines shall take into account:

 (i) factors considered in adopting the sentencing guidelines,

 (ii) the seriousness of the violation, and

 (iii) the rehabilitative needs of the defendant.

(b) Definitions. For the purposes of this chapter:

 (1) ''Conviction.'' A finding of guilty or the entering of a plea of guilty or nolo contendere for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.

 (2) ''County intermediate punishment (CIP).'' A sentencing alternative as provided in 42 Pa.C.S. Chapter 98 and imposed pursuant to 42 Pa.C.S. § 9763.

 (3) ''Court.'' A court of record.

 (4) ''Judicial proceeding.'' A sentencing hearing in which all offenses for which the offender is convicted are pending before the court for sentencing at the same time. A judicial proceeding may include multiple OTNs.

 (5) ''Offense gravity score (OGS).'' An assignment in the sentencing guidelines reflecting the seriousness of a conviction offense (see: 204 Pa. Code § 303.3 and § 303.15).

 (6) ''Offense tracking number (OTN).'' A unique identifying number assigned to an entire set of charges related to a conviction. An OTN is generally assigned by the court at the time of arraignment.

 (7) ''Prior record score (PRS).'' A category in the sentencing guidelines reflecting the seriousness of the criminal history of an offender (see: 204 Pa. Code § 303.4).

 (8) ''Probation.'' A sentencing alternative as provided in 42 Pa.C.S. § 9722 and imposed pursuant to 42 Pa.C.S. § 9754.

 (9) ''Resentence.'' A new sentence imposed following the revocation of probation, county intermediate punishment, or state intermediate punishment. Upon revocation, the sentencing alternatives available to the court shall be the same as were available at the time of the initial sentence.

 (10) ''Revocation.'' The termination of an order of probation or a sentence of county intermediate punishment or state intermediate punishment, upon proof of a violation of specific conditions of the order or sentence, as provided in 42 Pa.C.S. §§ 9771 and 9771.1 (relating to revocation of probation), 42 Pa.C.S. § 9773 (relating to revocation of county intermediate punishment), and 42 Pa.C.S. § 9774 (relating to revocation of state intermediate punishment).

 (11) ''Risk assessment instrument.'' An empirically based worksheet which uses factors that are relevant in predicting recidivism. A risk assessment instrument is often identified with a specific 'generation' of development:

 (i) 1st generation. ''Professional judgment,'' with assessments based on training and experience;

 (ii) 2nd generation. ''Risk assessment,'' an actuarial assessment of static criminal justice and demographic factors used to estimate risk of re-offense;

 (iii) 3rd generation. ''Risk-needs assessment (RNA),'' an actuarial assessment of static and dynamic factors and changing circumstances, such as relationships, employment, and substance abuse, used to estimate risk of re-offense and to assess criminogenic needs to be addressed through treatment and supervision;

 (iv) 4th generation. ''Risk-needs-responsivity (RNR) assessment,'' an actuarial assessment of static and dynamic factors used to match the level of service to the offender's risk to re-offend; assess criminogenic needs and target them in treatment; and structure the sentence to address the learning style, motivation, abilities, and strengths of the offender.

 (12) ''Sentencing Guidelines Software Web Application (SGS Web).'' A JNET-based application operated by the Commission which includes the modules for Sentencing Guidelines and for Resentencing Guidelines. SGS Web serves as the source of data for the original reported sentence and associated information and the reporting source for revocations and resentences.

 (13) ''State identification number (SID).'' A unique number associated with each offender based on fingerprints. The Commission requires the inclusion of SID as part of the record in the completed Guideline Sentence Form (§ 303.1(f)).

 (14) ''State intermediate punishment (SIP).'' A sentencing alternative as provided in 61 Pa.C.S. Chapter 41 and imposed pursuant to 61 Pa.C.S. § 4104(d).

 (15) ''Violation.'' A finding by a court of record, following a hearing, that the offender failed to comply with terms and conditions of an order of probation or a sentence of county intermediate punishment or state intermediate punishment.

 (i) ''Technical violation.'' Failure to comply with the terms and conditions of an order of probation or a sentence of county intermediate punishment or state intermediate punishment, other than by the commission of a new offense of which the offender is convicted in a court of record.

 (ii) ''Conviction violation.'' Commission of a new offense during the period of probation, county intermediate punishment, or state intermediate punishment, resulting in a conviction for a misdemeanor or felony in a court of record, whether or not judgement of sentence has been imposed.

§ 307.2. Resentencing Guidelines standards.

 (a) The court shall consider the Resentencing Guidelines in determining the appropriate resentence upon a revocation of probation, county intermediate punishment, or state intermediate punishment.

 (b) The Resentencing Guidelines shall apply to revocations of probation, county intermediate punishment, and state intermediate punishment for all offenses committed on or after January 1, 2020. Amendments to the Resentencing Guidelines shall apply to revocations of probation, county intermediate punishment, and state intermediate punishment for all offenses committed on or after the effective date of the amendment.

 (c) Upon revocation of probation, county intermediate punishment, or state intermediate punishment, all sentencing alternatives available to the court at the time of the initial sentence shall be available to the court for resentencing.

 (d) In every case in which a court of record imposes a resentence for a felony or misdemeanor, the court shall make as a part of the record and disclose in open court at the time of resentencing, a statement of the reason or reasons for the revocation and for the resentence imposed. In every case where a court of record imposes a resentence outside the Resentencing Guidelines, the reason or reasons for the deviation from the guidelines shall be recorded on the Guideline Sentence Form, a copy of which shall be electronically transmitted to the Pennsylvania Commission on Sentencing in the manner described in 204 Pa. Code § 303.1(e).

 (e) Unless otherwise provided by the Commission, the JNET-based Sentencing Guidelines Software Web application (SGS Web) shall be used at the court's direction to report all revocations of probation, county intermediate punishment, and state intermediate punishment and related resentences to the Commission. The information shall be electronically submitted to the Commission via SGS Web no later than 30 days after the date of resentencing.

§ 307.3. Procedure for determining the guideline resentence.

 (a) For a technical violation resulting in the revocation of an order of probation or a sentence of county intermediate punishment or state intermediate punishment, the resentencing guidelines shall be the same as the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines).

 (b) For a conviction violation resulting in revocation of an order of probation or a sentence of county intermediate punishment or state intermediate punishment, the resentencing guidelines shall begin with the initial sentencing guidelines, pursuant to 204 Pa. Code Chapter 303 (relating to sentencing guidelines), and include consideration of the following:

 (1) If the PRS category of the initial sentencing guidelines is PRS 0 through PRS 4, the PRS is increased by one category;

 (2) If the PRS category of the initial sentencing guidelines is PRS 5, RFEL, or REVOC, there is no change to the PRS category.

 (c) If the revocation of an order of probation or a sentence of county intermediate punishment or state intermediate punishment is related to both a technical violation and a conviction violation, the resentencing guidelines for the conviction violation apply.

§ 307.4. Guideline resentence recommendations.

 (a) Prior to resentencing, the Commission recommends the court obtain additional information via a risk-needs assessment or a risk-needs-responsivity assessment to identify any rehabilitative needs that may be addressed in a resentence.

 (b) Guideline resentencing recommendations relating to sentencing level, sentencing programs, aggravated and mitigated circumstances, and economic sanctions shall the same as those provided for guideline sentence recommendations pursuant to 204 Pa. Code §§ 303.11, 303.12, 303.13 and 303.14.

[Pa.B. Doc. No. 19-1357. Filed for public inspection September 6, 2019, 9:00 a.m.]



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