The General Assembly

1508 THE GENERAL ASSEMBLY final reason for the proposed revisions is that the Com- Title 204—JUDICIAL mission seeks to clarify several issues raised by the appellate courts and relating to the sentencing guidelines, SYSTEM GENERAL such as the definition of school zone for purposes of the Youth/School Enhancement and the use of a previous PROVISIONS court-martial in the Prior Record Score calculation. PART VIII. COMMISSION ON SENTENCING Revisions to Section 303.1—Sentencing guidelines standards [204 PA. CODE CH. 303] The standards contained in this section identify of- Adoption of Sentencing Guidelines fenses for which courts must consider the sentencing guidelines, and offenses to which the guidelines do not The Pennsylvania Commission on Sentencing is hereby apply; describe the application of the various editions of submitting revised sentencing guidelines, 204 Pa. Code the guidelines; and describe the requirements for report- §§ 303.1—303.18, for consideration by the General As- ing sentences to the Commission. sembly. The Commission adopted the revised sentencing guidelines on August 11, 2004, published them for com- The Commission included in previous Sentencing ment at 34 Pa.B. 5746 (October 23, 2004), and held public Guidelines Implementation Manuals commentary regard- hearings on December 1, 2004, December 2, 2004, Decem- ing the merger of sentences, advising courts that the ber 9, 2004 and December 14, 2004. The Commission guidelines do not apply to convictions for lesser offenses modified the proposed guidelines on December 15, 2004, which merge for sentencing purposes into greater of- published them for comment at 35 Pa.B. 198 (January 8, fenses. Consistent with this long-standing policy, and in 2005), and held a public hearing on February 8, 2005. light of the recent enactment of a merger statute, 42 The Commission adopted the revised sentencing guide- Pa.C.S. § 9765, the Commission has proposed including a lines, found in Annex A, on February 9, 2005. specific reference to merger of sentences in Section 303.1(a). As specified by statute, 42 Pa.C.S.§ 2155, the General As required by statute, 42 Pa.C.S. § 9721(b), all courts Assembly has ninety days from the date of this publica- must consider the guidelines when imposing sentences for tion (March 5, 2005) to review the revisions to the felonies and misdemeanors. While this requirement to sentencing guidelines. Unless rejected by concurrent reso- consider the guidelines has consistently been interpreted lution during that period, these revised guidelines will by the Commission to apply to the minor judiciary, the become effective on Friday, June 3, 2005 and will apply to Commission has only required the completion and sub- all offenses committed on or after that date. mission of guideline sentence forms, as required by 42 REPRESENTATIVE FRANK DERMODY, Pa.C.S. § 2153(a)(14), from courts of record. The Commis- Chair sion has proposed several changes to Section 303.1(c) to clarify this policy. In January 2002 the Commission Commentary on Annex A launched SGS Web, a JNET-based sentencing application Reasons for Revisions to Sentencing Guidelines that allows authorized users to prepare sentencing guidelines and submit completed forms electronically using the Pennsylvania’s initial sentencing guidelines became ef- secure JNET infrastructure. The Commission notified all fective June 22, 1982, and were subsequently amended on courts in February 2004 of a requirement that SGS Web eight occasions, most recently in 1997. The current be used to report all sentences beginning in January sentencing guidelines (5th Edition) became effective June 2005. The Commission has proposed including language 13, 1997 and apply to offenses committed on or after that to this effect in Section 303.1(d) and (e). date. The Commission herein proposes revisions to the 5th Edition sentencing guidelines for several reasons. Revisions to Section 303.2—Procedures for determining First, during the past seven years, the General Assembly the guideline sentence has enacted, amended or repealed more than 120 statutes The standards contained in this section identify proce- that impact on the sentencing guidelines. In addition, the dures for determining the guideline sentence. During the Commission has received requests from practitioners to development of the 5th Edition guidelines in 1997, the change the sentence recommendations for a number of Commission adopted the term ‘judicial proceeding’ to offenses, including violations of the Uniform Firearms describe a hearing in which all offenses for which an Act, crimes of violence, weapons of mass destruction, offender has been convicted are pending before the court controlled substances, and driving under the influence of for sentencing at the same time. While this term was alcohol or controlled substance. As a result, the Commis- used in describing the procedure for completing a guide- sion undertook a comprehensive review of all Offense line sentence form, it was not defined in the text of the Gravity Score (OGS) and Prior Record Score (PRS) point guidelines. The Commission has proposed including this assignments for offenses covered under the sentencing definition in Section 303.2(b). guidelines. A second and related reason for the proposed Revisions to Section 303.3—Offense Gravity Score revisions is that the Commission has received feedback that the ‘totally concurrent’ Prior Record Score policy, The standards contained in this section relate to the adopted in 1997, has been difficult to implement due to assignment of the Offense Gravity Score (OGS), which the complexity of the policy and missing or incomplete measures the seriousness of the current conviction of- prior conviction and sentencing information. A third rea- fense. The OGS is the primary determinant of the son for the revisions is that the Commission is required, sentencing guidelines recommendation. For controlled pursuant to Act 2002-229, to provide a sentencing en- substances, the OGS assignment is generally based on hancement for the offense of homicide by vehicle when the type and quantity or weight of the controlled sub- the violation occurs in an active work zone. A fourth and stance. The 4th Edition (1994) sentencing guidelines PENNSYLVANIA BULLETIN, VOL. 35, NO. 10, MARCH 5, 2005 THE GENERAL ASSEMBLY 1509 introduced an exception for fraudulent prescriptions, in intimidation to any Felony 1 offense. As a result of the which the number of prescription pills rather than the comprehensive changes to the DUI statute, and the weight of the pills would be used to determine the OGS related re-classification of DUI offenses, the Commission assignment. The concern was that since only a small has proposed assigning all but a first DUI one point in amount of the controlled substance was contained in each the PRS. pill, the weight of the pills would over-estimate the In Section 303.8 the Commission has proposed includ- seriousness of the offense. The Commission has proposed ing in the text of the sentencing guidelines information expanding this exception to two other sections of the previously contained in the Sentencing Guidelines Imple- Drug Act: Delivery by practitioner, 35 P. S. § 780- mentation Manual Commentary. This includes a clarifica- 113(a)(14), and Possession with intent to deliver, 35 P. S. tion that a court-martial for a criminal offense is consid- § 780-113(a)(30), but limiting the prescription pills excep- ered a federal conviction; and that contempt of court, tion in all three sections to narcotics. violations of PFA orders, and nolle prossed or dismissed Revisions to Sections 303.4 through 303.8—Prior Record charges are excluded from the PRS. Score Revisions to Sections 303.9 through 303.14—Guideline The standards contained in this section relate to Prior sentence recommendations Record Score (PRS) policies, including the PRS categories, The standards contained in this section relate to guide- identification of previous adjudications and convictions line sentence recommendations, including general provi- included in the calculation of the PRS, and the relative sions, enhancements for possession or use of a deadly weight of those previous adjudications and convictions in weapon, enhancements for distribution of a controlled determining the PRS category. The PRS reflects both the substance to a minor or in a school zone, sentencing number and severity of previous adjudications and convic- levels and programs, aggravated and mitigated circum- tions. The PRS is not a separate punishment, but rather stances, and economic sanctions. a reflection of the seriousness of previous offenses. In Section 303.10 the Commission has proposed a In the 5th Edition (1997) sentencing guidelines, the narrowing of the circumstances for which the deadly Commission moved from transaction-based sentencing weapon/used enhancement would apply. The enhancement guidelines to offense-based sentencing guidelines. Under would continue to apply if an offender used a deadly transaction-based guidelines, only the most serious of- weapon to threaten or injure another individual, but not fense of a previous transaction was included in the if it was otherwise used in the furtherance of the crime. calculation of the PRS, and the PRS was only used to Neither deadly weapon enhancement would apply to a determine the sentence recommendation for the most theft when the property stolen was a firearm. The serious offense of the current transaction. Under the Commission also has proposed a refinement of the defini- offense-based guidelines, the presumption is that all tion of ‘school’ in the Youth/School Enhancement to reflect previous convictions are included in the calculation of the that the enhancement applies when the distribution PRS, and that the PRS is used to determine the sentence occurs within 1000 feet of the real property on which the recommendation for each current offense. The exception school is located. Both of these proposals are in response to this ‘everything counts’ policy is a totally concurrent to recent decisions by the Pennsylvania Superior Court.

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