2020 Brings big changes to sentencing in Pennsylvania. Some of these changes are defense friendly, such as the resentencing guidelines and the reduction in some drug OGSs. However, many are Commonwealth friendly such as the domestic violence and vehicular homicide enhancements and the return of mandatory minimums.
All defendants with offenses committed on, or after, January 1, 2020 must be sentenced in accord with the sentencing guidelines pursuant to 204 Pa. Code Sec. 307.2.
Pursuant to 204 Pa. Code Sec. 307.3, Technical violations shall be sentenced pursuant to the same OGS and PRS used at the original sentencing. Violations resulting from new convictions will use the original OGS but will increase the PRS by one (1) if the original PRS was a 0, 1, 3 or 4. Defendant’s whose original PRS at the time of the original sentence was a 5, RFEL or REVOC will be sentenced under the same sentencing guidelines used at the time of the original sentence.
Of note is the definition of a new “conviction[s]” provided by 204 Pa. Code Sec 307.1 which defines convictions as “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.
Practical Implications: Disposing of misdemeanor pleas at the Preliminary Hearing limits a client’s exposure on any probation violations based upon that new offense.
Homicide by vehicle & Aggravated Assault by vehicle are both enhanced if the same incident also leads to a conviction of improperly licensed driving under Title 75 Pa.C.S. 1501 or 1543.
Domestic Violence Definition
204 Pa. Code 303.9 (o) defines domestic violence as any offense commit against a family or household member. It defines a family or household member as “[s]pouse or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other person related by consanguinity or affinity, current of former sexual or intimate partners or persons who share biological parenthood.”
204 Pa. Code 303.10(h) applies the sentencing enhancements to virtually all offense by applying it to any offenses under 18 Pa.C.S. Chapters 25, 27, 29, 30, 31 and 49 as well as 23 Pa.C.S. Sec 6102.
204 Pa. Code 303.9(o)(1) mandates an increase of one (1) to the offense gravity score of essentially any non-theft crime where the victim is a family member or intimate partner.
Additional Financial Liability
204 Pa. Code 303.9(o)(1) also suggest that a defendant should be ordered to pay for the costs and treatment of counseling for any minor exposed to a crime of domestic violence.
Thoughts & Questions Regarding the Domestic Violence Enhancements: It very fortunate that the enhancement does not apply to wiretap violations as these are often the only avenue victims have to gather evidence of their abuse. The enhancements do, however, purport to apply Revenge Porn, 18 Pa.C.S. 3131, Unlawful Dissemination of Intimate Images. The applicability of the enhancement to Revenge Porn or any other crime where an intimate relationship is an element of the crime should be contested.
42 Pa.C.S.A. Sec. 9718 has been amended to reinstitute mandatory minimum sentences in child victim cases. Mandatory minimums in drug cases remain unconstitutional.
As an aside, although not a 2020 addition, it appears that the mandatory minimums triggered by elderly victims under 42 Pa.C.S.A. Sec. 9717 remain constitutional, and at play, despite being called into question in Commonwealth v. Russell, 203 A.3d 219 (Pa. Super. 2019).
61 Pa.C.S.A. 6137.2 requires all indivduals sentenced to aggregate minimum sentences of four (4) years or more of confinement to receive a consecutive sentence of one (1) year of re-entry supervision.
The new statute does not address what is to occur when the maximum sentence imposed by the court, including the re-entry supervision, extends past the statutory maximum.
Thoughts: The Pennsylvania Sentencing Commission purports that the re-entry supervision can extend beyond the statutory maximum. This does not seem tenable. Any statutory maximum sentence that extends past the the statutory maximum via the additional of consecutive re-entry supervision should be contested as an illegal sentence. The effect of successfully arguing that the statutory maximum encompasses re-entry supervision would be to effectively reduced the maximum period of incarceration without parole by one (1) year for all individuals felony convictions.