Section 303.9. Guideline sentence recommendation: general

(a)(1) 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(a)). 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).

(2) Sentences for offenders under age 18 for murder, murder of unborn child, or murder of law enforcement officer. If an offender is under age 18 years at the time of the offense and the conviction occurred after June 24, 2012, 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). If the court determines the convicted offender was under age 18 at the time of the offense and the conviction occurred after June 24, 2012, the court shall instead consider the Basic Sentencing Matrix for Offenders Under Age 18 Convicted of 1st or 2nd Degree Murder (§ 303.16(b)).

(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(a)). 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 (§ 303.17(b)). 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), the court shall consider the applicable matrix in 303.18, related to Youth, School, or Youth and School Enhancements. When applying the Youth Enhancement, 6 months are added to the lower limit of the standard range and 12 months are added to the upper limit of the standard range. When applying the School Enhancement, 12 months are added to the lower limit of the standard range and 24 months are added to the upper limit of the standard range. When the Youth and School Enhancement is applied, 18 months are added to the bottom of the standard range and 36 months are added to the upper limit of the standard range. 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). 42 Pa.C.S. § 9721(c) (mandatory restitution) is also included in RS. No specific recommendations are provided for periods of supervision for these non-confinement sentencing alternatives. Recommendations related to fines and community service are found at § 303.14(a). 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) Mandatory sentences for which county intermediate punishment is authorized. The court shall consider the sentence recommendations pursuant to this section (§ 303.9) for an offender convicted under 30 Pa.C.S. § 5502 (Operating Watercraft Under the Influence of Alcohol or a Controlled Substance), 75 Pa.C.S. § 1543(b) (Driving While Operating Privilege is Suspended or Revoked, Certain Offenses), 75 Pa.C.S. § 3802 (Driving Under the Influence of Alcohol or Controlled Substance) or 75 Pa.C.S. § 3808(a)(2) (Illegally Operating a Motor Vehicle Not Equipped with Ignition Interlock). The court may use a Qualified Restrictive Intermediate Punishment pursuant to § 303.12(a)(6) to satisfy the mandatory minimum requirement as provided by law.

(j) Criminal Gang Enhancement sentence recommendations. If the court determines that either a crime of violence as defined in 42 Pa.C.S. § 9714(g) or a violation of possession with intent to deliver as defined in 35 P. S. § 780-113(a)(30) is committed in association with a criminal gang, the court shall instead consider the Criminal Gang Enhancement. The enhancement 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). The Criminal Gang Enhancement adds 12 months to the lower limit and adds 12 months to the upper limit of the standard range.

(k) Third Degree Murder of a Victim Younger than Age 13 Enhancement sentence recommendations. If the court determines that the victim of murder in the third degree as defined in 18 Pa.C.S. § 2502(c) was less than 13 years of age at the time of the offense, the court shall instead consider the Third Degree Murder of a Victim Younger than Age 13 Enhancement. The enhancement 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). The Third Degree Murder of a Victim Younger than Age 13 Enhancement adds 24 months to the lower limit of the standard range and assigns the statutory limit as the upper limit of the standard range. The sentence imposed will be served consecutively to any other sentence the person is serving and to any other sentence imposed by the court (42 Pa.C.S. § 9711.1).

(l) Sexual Abuse of Children Enhancement sentence recommendations. If the court determines that aggravating circumstances described in § 303.10(e) are present, the court shall instead consider the applicable Sexual Abuse of Children Enhancement related to number of images possessed by the offender or the nature and character of the abuse depicted:

(1) When applying enhancement based on the number of images possessed by the offender. If the offender possessed more than 50 images to 200 images, 6 months are added to the lower limit of the standard range and 6 months are added to the upper limit of the standard range. If the offender possessed more than 200 images to 500 images, 12 months are added to the lower limit of the standard range and 12 months are added to the upper limit of the standard range. If the offender possessed more than 500 images, 18 months are added to the lower limit of the standard range and 18 months are added to the upper limit of the standard range.

(2) When applying enhancement based on the nature and character of the abuse depicted. The Offense Gravity Score is one point higher than the assignments for 18 Pa.C.S. § 6312 (relating to sexual abuse of children) listed in § 303.15.

(3) When applying enhancement when both aggravating circumstances are present. The court shall consider the enhancement with the higher sentence recommendation.

(m) Arson Enhancement sentence recommendations. If the court determines that one or more of the factors described in § 303.10(f) are present, the court shall instead consider the Arson Enhancement. When the Arson Enhancement is applied, the Offense Gravity Score is one point higher than the assignments listed for 18 Pa.C.S. § 3301 (relating to arson) in § 303.15.

(n) Human Trafficking Enhancement sentence recommendations. If the court determines that one or more of the factors described in § 303.10(g) are present, the court shall instead consider the Human Trafficking Enhancement. When the Human Trafficking Enhancement is applied, the Offense Gravity Score assignments listed for 18 Pa.C.S. § 3011 (relating to trafficking in individuals) and § 3012 (relating to involuntary servitude) in § 303.15 are increased by one point for each additional factor listed. The points for each factor (§ 303.10(g)(1)—(4)) shall be cumulative, for a maximum of four points.

The provisions of this § 303.9 amended July 6, 1985, and applies to sentences for crimes committed on or after January 1, 1986, 15 Pa.B. 2447; as announced at 16 Pa.B. 439 (February 15, 1986). Prior guidelines will continue to apply when sentencing crimes committed before January 2, 1986; a correction to the defective text was published at 16 Pa.B. 2872 (August 2, 1986); amended December 4, 1987, effective April 25, 1988, 18 Pa.B. 1916; amended May 11, 1991, effective August 9, 1991, 21 Pa.B. 3988; amended October 11, 1990, effective for all crimes committed on or after December 20, 1991, 21 Pa.B. 5933; amended February 15, 1994, effective August 12, 1994, 24 Pa.B. 2483; amended March 14, 1997, effective June 13, 1997, 27 Pa.B. 1252; amended February 9, 2005, effective June 3, 2005, 35 Pa.B. 1508; amended September 5, 2008, effective December 5, 2008, 38 Pa.B. 4971; amended September 13, 2012, effective December 28, 2012, 42 Pa.B. 6072; amended June 6, 2013, effective September 27, 2013, 43 Pa.B. 3655; amended June 27, 2014, effective September 26, 2014, 44 Pa.B. 4071; amended June 26, 2015, effective September 25, 2015, 45 Pa.B. 3457. Immediately preceding text appears at serial pages (373298) to (373301).

Notation

Notes of Decisions

Appropriate Sentence

The sentencing court sentenced appellant within the standard under these guidelines. Irrespective of whether the sentencing court misconstrued appellant’s role in the perjury of witnesses, there was no basis to disturb the sentence as appellant was engaged in a continuing series of drug deals and had been convicted of other felonies. Commonwealth v. Viera, 659 A.2d 1024 (Pa. Super. 1995).

Discretion

A sentencing court has no discretion to refuse to apply the deadly weapon enhancement. Commonwealth v. Peer, 684 A.2d 1077 (Pa. Super. 1996).

Guidelines Violated

The sentencing court abused its discretion by unreasonably deviating from these sentencing guidelines and imposing an unreasonably lenient sentence. Commonwealth v. Childs, 664 A.2d 994 (Pa. Super. 1995).

Mandatory Sentences

In spite of a discrepancy between the grading of the offense in the Sentencing Guidelines and in the Motor Vehicle Code, the trial court properly followed the DUI statute in sentencing the defendant for DUI as a first-degree misdemeanor rather than a second-degree misdemeanor, where the Motor Vehicle Code provided that the Sentencing Guidelines should not supersede the mandatory penalties of the DUI statute and the Sentencing Guidelines likewise provide that the court has no authority to impose a sentence less than that required by a mandatory minimum provision established in a statute. Commonwealth v. Fogel, 741 A.2d 767 (Pa. Super. 1999).

Partial Confinement

It seems clear that the guideline ranges in effect at the time of defendant’s sentencing contemplated minimum sentences of either total or partial confinement; therefore, the trial court properly applied the guidelines sentencing the defendant to partial confinement for the rape conviction. Commonwealth v. Widmer, 667 A.2d 215 (Pa. Super. 1995).

Range of Sentence

Where the trial court sustained the defendant’s objection and eliminated specific prior convictions from his prior record score, and prior record score is one of two determinants of the applicable sentencing range, it is clear that those prior convictions had no role in determining defendant’s range of sentence. Lackawana County District Attorney v. Coss, 531 U. S. 923 (2001).

School Enhancement

The court vacated the judgment that sentenced appellant after appellant was convicted on a controlled substance offense and a criminal conspiracy offense because the trial court erroneously applied the school enhancement provisions to the count of criminal conspiracy. Commonwealth v. Adams, 760 A.2d 33 (Pa. Super. 2000).

In prosecution arising out of a sale of cocaine near a parochial school, the trial court did not err in imposing a sentence applying the school enhancement provisions of the sentencing guidelines based on a measurement from the school playground area rather than from the school building, where a school encompasses not only the school building itself, but includes all of the school property located in a zone where children have access such as a school playground, and where the purpose of the school enhancement provisions is to create a drug-free zone around schools. Commonwealth v. Davis, 734 A.2d 879 (Pa. Super. 1999).

Cross References

This section cited in 204 Pa. Code § 303.2 (relating to procedure for determining the guideline sentence); 204 Pa. Code § 303.10 (relating to guideline sentence recommendations: enhancements); 204 Pa. Code § 303.11 (relating to guideline sentence recommendation: sentencing levels); 204 Pa. Code § 303.12 (relating to guideline sentence recommendations: sentencing programs); 204 Pa. Code § 303.14 (relating to guideline sentence recommendations—economic sanctions); 204 Pa. Code § 303.17(a) (relating to Deadly Weapon Enhancement/Possessed Matrix); 204 Pa. Code § 303.17(b) (relating to Deadly Weapon Enhancement/Used Matrix); 204 Pa. Code § 303.18(a) (relating to Youth Enhancement Matrix); 204 Pa. Code § 303.18(b) (relating to School Enhancement Matrix); and 204 Pa. Code § 303.18(c) (relating to Youth and School Enhancement Matrix).