204 Pa. Code § 303a.5

Current through Register Vol. 54, No. 45, November 9, 2024

Section 303a.5 - Offense-specific sentence recommendations

(a)General provisions.

(1) In writing the sentencing guidelines, the Commission strives to provide a framework for the judges of Pennsylvania. The guidelines serve as a common starting point at sentencing, with a standard range of offense-specific sentence recommendations for the typical circumstances, based on the seriousness of the conviction offense and the consideration of relevant criminal history and criminal behavior of the person. As required by statute, aggravated and mitigated ranges are included to support the exercise of discretion when other circumstances are present.

(2) Through the establishment of sentencing levels, the sentencing guidelines are anchored to the purposes of sentencing and to the authorized dispositions provided in statute. Within these levels, an offense-specific sentence recommendation is provided for each conviction offense, based on the combination of OGS and PRS, intended to promote uniformity and proportionality. "The guidelines were designed to bring greater rationality and consistency to sentences and to eliminate unwarranted disparity in sentencing." Commonwealth v. Mouzon, 812 A.2d 617 (Pa., 2002).

(3) While courts are required to consider the offense-specific sentence recommendations, Pennsylvania's sentencing guidelines are advisory, and courts are required to individualize sentences. "Guidelines serve the laudatory role of aiding and enhancing the judicial exercise of judgement regarding case-specific sentencing. Guidelines may help frame the exercise of judgement by the Court in imposing a sentence. . .they are advisory guideposts that are valuable, may provide an essential starting point, and that must be respected and considered; they recommend, however, rather than require a particular sentence." Commonwealth v. Walls (926 A.2d 957) (Pa., 2007).

(b)Purposes of sentencing.

(1) As provided in the Model Penal Code: Sentencing (Model Penal Code §1.02(2)), the general purposes in decisions affecting the sentencing of persons include:

(i) To render sentences in all cases within a range of severity proportionate to the gravity of offenses, the harm done to victims, and the blameworthiness of persons; and

(ii) When reasonably feasible, to achieve person rehabilitation, general deterrence, incapacitation of dangerous persons, restitution to crimes victims, preservation of families, and reintegration of persons into the law-abiding community, provided these goals are pursued within the boundaries of proportionality.

(2) The sentencing guidelines provide a system with a primary focus on retribution, but one which allows for the fulfillment of other utilitarian sentencing purposes, including person rehabilitation, general deterrence, incapacitation to protect the public, and victim restoration.

(3) While the guidelines provide a retributive framework for sentencing, other factors may impact the sentencing decision and other information may assist the court in determining an appropriate and individualized sentence. These include:

(i) Mandatory minimum sentencing provisions, which when applicable supersede the offense-specific sentence recommendations.

(ii) Diagnostic evaluations of dependency on alcohol and other drugs and clinically prescribed treatment.

(iii) The use of validated assessments of risk, needs and responsivity and related evidence-based practices to guide decisions related to the intensity and duration of community supervision.

(c)Sentencing levels and offense-specific sentence recommendations.

(1) Eight sentencing levels are associated with standard range recommendations for dispositions and durations, to allow for more consistent consideration of the authorized sentencing alternatives, and to address mandates related to the adoption of guidelines for probation, the use of restrictive conditions, and fines and community service. This also allows for the consideration of the risk and needs of the person, and for the use of sentencing and correctional programs.

(i) The sentencing levels increase in severity from restorative sanctions (Level A) to total confinement in a State facility (Level D through Level H, depending on the duration of the recommendation).

(ii) Consistent with retribution as the primary purpose of the guidelines, the increases in the severity of the recommendations are proportionate with increases in the seriousness of the offenses and the extent of the criminal history. The sentencing levels provide a rational basis for the consideration of both retributive and utilitarian purposes of sentencing.

(2)Standard range recommendations

(i) Standard range recommendations, based on each combination of the OGS, assigned pursuant to § 303a.3 (relating to offense gravity score), and the PRS, determined pursuant to § 303a.4 (relating to prior record score), are provided in the sentencing matrix, located at § 303a.14 (relating to sentencing matrix). The standard range serves as a common starting point for sentencing and includes offense-specific sentence recommendations that apply to typical circumstances.

(ii) The standard range include specific recommendations, consistent with the sentencing level, that address the disposition and duration of a sentence, as well as the intensity of community supervision and the consideration of sentencing programs and are intended to promote uniformity and proportionality of sentencing.

(iii) When the guideline sentence recommendation exceeds that permitted by 18 Pa.C.S. §§ 1103 and 1104 (relating to sentence of imprisonment for felony; and sentence of imprisonment for misdemeanors), the guideline sentence recommendation is capped at the statutory limit. For the purposes of the guidelines, the statutory limit is the longest legal minimum sentence, which is one-half the maximum period allowed by law.

(iv) Treatment alternatives, including medically assisted treatment and behavioral therapies when clinically appropriate, may be considered to address substance use, behavioral health issues, or developmental disorders or disability. The specialized jurisdiction of problem-solving courts, as authorized by 42 Pa.C.S. § 916 (relating to problem-solving courts), provide an avenue for the use of court-supervised individualized treatment programs and services. Other treatment programs, such as those described in § 303a.1(c) (relating to preliminary provisions), may be considered:

(A) Probation with restrictive conditions, including the use of clinically prescribed treatment, may be considered for eligible persons in lieu of recommendations for confinement in a county facility.

(B) Restrictive DUI probation conditions may be used to satisfy the mandatory minimum sentencing requirements for eligible persons.

(C) Persons committed to the Department may be recommended or made eligible by the court for certain correctional programs, including the State motivational boot camp program and the State drug treatment program.

(3) The sentencing levels and related standard range offense-specific sentence recommendations are described below:

(i) Level A, generally limited to restorative sanctions recommendations.

(A) The guidelines recommend consideration of the use of restorative sanctions, including restitution, fines, community service, or other authorized sanctions not requiring probation or confinement or limited to administrative probation. The use of restorative sanctions at this level, with a focus on reparations and restorative justice, supports the utilitarian purpose of restoration.

(B) Restorative sanctions recommendations include non-confinement and limited supervision alternatives such as:

(I) Guilt without further penalty when the court determines probation would be appropriate but unnecessary.

(II) A fine, within the limits provided by law, or any amount equal to double the pecuniary gain derived from the offense by the person, or the use of community service as a non-monetary alternative, as a restorative sanction may be ordered as a direct sentence or as a condition of administrative probation, subject to the defendant's ability to pay. The fines/community service guidelines, included with each guideline sentence recommendation, provide a range of recommended community service hours; the comparable fine is determined by multiplying the number of hours recommended by the person's hourly wage, or by the current minimum wage.

(III)Restitution as a mandatory requirement. The court is required to order the person to compensate the victim for damage or injury sustained because of the offense. Restitution as a restorative sanction may be ordered as a direct sentence, or upon consideration of the defendant's ability to pay, as a condition of administrative probation.

(IV) Administrative probation in limited circumstances as necessary to fulfill court-ordered obligations for a period not to exceed six months.

(ii) Level B, limited to probation recommendations.

(A) The guidelines recommend consideration of the use of probation to provide community supervision with the minimal control necessary to fulfill court-ordered obligations. The use of probation at this level, with consideration of restorative sanctions, supports the utilitarian purposes of rehabilitation and restoration.

(B) Probation recommendations include:

(I) The use of general probation, not to exceed two years and as provided, with general conditions; and the consideration of fines/community service or other restorative sanctions as general conditions of general probation.

(II) The use of probation, not to exceed two years and as designated, with restrictive conditions for a period less than three months and as designated (RC) for persons with greater criminal history, to increase the intensity of supervision and services; and the consideration of fines/ community service or other restorative sanctions as general conditions of probation.

(iii) Level C, limited to confinement in a county facility, while providing for the use of probation with restrictive conditions as an alternative when eligible and appropriate.

(A) The guidelines recommend consideration of confinement in a county facility, or an equivalent period of restrictive conditions of probation, with the court retaining jurisdiction of the case. The use of county confinement with the court authorized to consider county programs and county parole, or in the alternative, the court having the discretion to use probation with restrictive conditions to provide community supervision and/or treatment, supports multiple utilitarian purposes including deterrence, rehabilitation, and restoration.

(B) Confinement recommendations include:

(I) The use of confinement consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the person.

(II) The use of confinement in a county facility, with a minimum term less than 12 months and as designated, and a maximum term of less than 24 months; with the court authorized to consider a county reentry program or partial release program as provided in § 303a.1(c), and county parole pursuant to 42 Pa.C.S. § 9776 (relating to judicial power to release inmates).

(III) Unless otherwise designated, the range of months in the standard range refers to the recommended minimum term of confinement.

(C) Probation with restrictive conditions recommendations include:

(I) Consideration of the eligibility requirements, as provided in § 303a.1(c), for the use of county intermediate punishment programs as restrictive conditions of probation.

(II) The use of probation, not to exceed two years and as designated, with restrictive conditions for a period less than 12 months and as designated (RC) for persons with greater criminal history, to increase the intensity of supervision and services; and the consideration of fines/ community service or other restorative sanctions as general conditions of probation.

(III) Unless otherwise designated, the range of months in the standard range refers to the recommended period of restrictive conditions.

(iv) Level D, while recommending confinement in a State facility, provides for confinement in a county facility when authorized by statute or the use of probation with restrictive conditions when eligible and appropriate.

(A) The guidelines recommend consideration of confinement in a State facility with consideration of certain correctional programs; or if authorized by statute, confinement in a county facility, with the court authorized to consider county programs and county parole; or the use of probation with restrictive conditions as an alternative to or in combination with confinement in a county facility to provide community supervision and/or treatment. The use of confinement, with consideration of sentencing and correctional programs, supports multiple utilitarian purposes including incapacitation, deterrence, rehabilitation, and restoration.

(B) Confinement recommendations include:

(II) The use of confinement in a State facility, with a minimum term of 12 months or more but less than 30 months and as provided in 42 Pa.C.S. § 9762 (relating to sentencing proceeding; place of confinement), and a maximum term of less than 60 months; with the court authorized to determine the eligibility and appropriateness of specified Department programs as provided in § 303a.1(c); and with parole authority under the jurisdiction of the Board pursuant to 61 Pa.C.S. § 6132 (relating to specific powers of board involving offenders).

(III) The use of confinement in a county facility, with a minimum term of 12 months or more but less than 30 months and as provided in 42 Pa.C.S. § 9762, and a maximum term of less than 60 months; with the court authorized to consider a county reentry program or partial release program as provided in § 303a.1(c), and county parole pursuant to 42 Pa.C.S. § 9776.

(IV) Unless otherwise designated, the range of months in the standard range refers to the recommended minimum term of confinement.

(v) Level E, limited to confinement in a State facility.

(A) The guidelines recommend consideration of confinement in a State facility with consideration of certain correctional programs. While rehabilitation and restoration are under consideration at all levels, the primary utilitarian purposes of confinement at Level E are incapacitation and deterrence.

(B) Confinement recommendations include:

(II) The use of confinement in a State facility, with a minimum term of 30 months or more recommended, including consideration of the statutory limit for PRS 4, with the maximum term at least double the minimum term as provided in 42 Pa.C.S. § 9756 (relating to sentence of total confinement); with the court authorized to determine the eligibility and appropriateness of specified Department programs as provided in § 303a.1(c); and with parole authority under the jurisdiction of the Board pursuant to 61 Pa.C.S. § 6132.

(III) Unless otherwise designated, the range of months in the standard range refers to the recommended minimum term of confinement.

(vi) Level F, limited to confinement in a State facility for offenses with a statutory maximum greater than 20 years.

(B) Confinement recommendations include:

(II) The use of confinement in a State facility, with a minimum term of 90 months or more recommended, including consideration of the statutory limit for PRS 4, with a maximum term at least double the minimum term as provided in 42 Pa.C.S. § 9756; with the court authorized to determine the eligibility and appropriateness of specified Department programs as provided in § 303a.1(c); and with parole authority under the jurisdiction of the Board pursuant to 61 Pa.C.S. § 6132.

(III) Unless otherwise designated, the range of months in the standard range refers to the recommended minimum term of confinement.

(vii) Level G, limited to confinement in a State facility for the offense of murder of the third degree, which has a statutory maximum of 40 years.

(B) Confinement recommendations include:

(II) The use of confinement in a State facility, with a minimum term standard range recommendation of no less than 72 months and including the statutory limit of 240 months; with a maximum term at least double the minimum term as provided in 42 Pa.C.S. § 9756; with the court authorized to determine the eligibility and appropriateness of specified Department programs as provided in § 303a.1(c); and with parole authority under the jurisdiction of the Board pursuant to 61 Pa.C.S. § 6132.

(III) Because of the wide range of circumstances contributing to convictions for murder of the third degree, the Commission has provided an extraordinarily wide standard range for consideration by the court, with a lower limit of 72 months and an upper limit of 240 months, which is the statutory limit. An enhancement, which increases the lower limit to 90 months, applies when the victim is less than 13 years of age. To refine future guidelines and promote greater proportionality and uniformity in sentencing, the Commission requires the court to report reasons for all sentences imposed for murder of the third degree.

(IV) Unless otherwise designated, the range of months in the standard range refers to the recommended minimum term of confinement.

(viii) Level H, limited to confinement in a State facility for the offenses of murder of the first degree and murder of the second degree.

(A) Level H includes convictions for which the penalty is the same as the penalty for murder of the first degree or murder of the second degree, including but not limited to:

(I)18 Pa.C.S. § 2507 (relating to criminal homicide of law enforcement officer).

(II)18 Pa.C.S. § 2604 (relating to murder of unborn child).

(III)18 Pa.C.S. § 2716 (relating to weapons of mass destruction).

(IV)18 Pa.C.S. § 3301 (relating to arson and related offenses).

(B) The following three age categories apply:

(I) Persons 18 years of age or older at the time of the offense;

(II) Persons 15 years of age or older but less than 18 years of age at the time of the offense; and

(III) Persons 10 years of age or older but less than 15 years of age at the time of the offense.

(C) If person is under 18 years of age at the time of the offense and the conviction occurred after June 24, 2012, the court shall consider the recommendations provided in Level H. The court has no authority to impose a sentence less than that required by the mandatory minimum provision established in statute and may impose a minimum sentence up to and including life (18 Pa.C.S. § 1102.1 (relating to sentence of persons under the age of 18 for murder, murder of an unborn child and murder of a law enforcement officer)).

(D) The statute requires confinement in a State facility, and the mandatory minimum requirements provide the lower limit of the recommendations in Level H, with recommendations increasing based on criminal history. While rehabilitation and restoration are under consideration at all levels, the primary utilitarian purposes of confinement at Level H are incapacitation and deterrence.

(E) Confinement recommendations include:

(II) The use of confinement in a State facility, for those under 18 years of age at the time of the offense, considers the mandatory minimum sentencing requirements and criminal history in determining the minimum sentence recommendation. The maximum sentence authorized by statute is life, including life without the possibility of parole (LWOP), but excluding the death penalty. When sentenced to a minimum term of less than LWOP, parole authority is under the jurisdiction of the Board pursuant to 61 Pa.C.S. § 6132.

(III) The use of confinement in a State facility, for those 18 years or age or older at the time of the offense, penalties are limited to LWOP or death.

(F) Unless otherwise designated, the range of months in the standard range refers to the recommended minimum term of confinement.

204 Pa. Code § 303a.5

Adopted by Pennsylvania Bulletin, Vol 53, No. 34. August 26, 2023, effective 1/1/2024