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Major Updates 8th Edition Pennsylvania Sentencing Guidelines: What Criminal Defense Lawyers Need to Know

Town Law Publishing May 23, 2024

courthouseA significant update to the Pennsylvania Sentencing Guidelines went into effect on January 1, 2024. These new guidelines overhaul the state's approach to sentencing defendants following a conviction at trial or a guilty plea. This update brings substantial changes to how prior record scores are calculated and introduces a new sentencing matrix, fundamentally altering the landscape for criminal defense attorneys in Pennsylvania.

Introduction to Sentencing Guidelines

Before sentencing a defendant in Pennsylvania state court, a judge must calculate the guidelines for the offense. Every offense has an offense gravity score (OGS), and every defendant has a prior record score (PRS). The judge must correctly determine these scores, which then intersect on the sentencing guidelines matrix to provide a recommended range for the minimum sentence. For legality, Pennsylvania sentences must have both a minimum and a maximum, with the maximum being at least double the minimum.

Under the guidelines system, the judge calculates the sentencing guidelines and considers sentencing the defendant within the range provided for the minimum sentence. Although the judge can deviate from the guidelines based on the specifics of the case, such deviations are easier to appeal than guideline-conforming sentences.

The Offense Gravity Score (OGS)

The OGS is relatively straightforward to determine. Each offense listed by the Pennsylvania Commission on Sentencing is assigned a numerical OGS.

  1. Determining the OGS:

    • Review the list of offenses in the complaint or bills of information to identify the specific subsection charged, as different subsections may have different OGS. For example, simple assault (18 Pa.C.S. § 2701(a)(1)) has an OGS of 3, while aggravated assault (18 Pa.C.S. § 2702(a)(1)) has an OGS of 9.

  2. Applying Enhancements:

    • Deadly Weapon Enhancements:

      • Possessed but not used: +2 points. For instance, if the original OGS is 5, the enhanced OGS will be 7.

      • Used: +3 points. For example, if the initial OGS is 5, using a deadly weapon raises it to 8.

    • School Zone Enhancement: +1 point if a controlled substance was delivered or possessed with intent to deliver in a school zone. If the original OGS is 4, it becomes 5 with this enhancement.

    • Criminal Gang Enhancement: +2 points. If the base OGS is 6, the enhanced OGS will be 8.

    • Domestic Violence Enhancement: +2 points if the offense was committed against a family or household member. For instance, an OGS of 5 would be increased to 7.

Certain offenses inherently involving deadly weapons, such as assault with a deadly weapon (OGS 7) or possession of a weapon on school property (OGS 3), are excluded from these enhancements.

The Prior Record Score (PRS)

The new guidelines significantly change the PRS calculation. Instead of assigning points to each prior conviction and summing them up, the PRS now focuses on the most serious offense of conviction from each case.

  1. Categories of Offenses:

    • POG1: Non-serious misdemeanors. Examples include minor theft or simple possession of marijuana.

    • POG2: Third-degree felonies and unclassified felonies like possession with intent to deliver. Examples include PWID (Possession with Intent to Deliver) with an OGS of 5.

    • POG3: Serious crimes, including first- and second-degree felonies. Examples include burglary (OGS 7) and aggravated assault (OGS 9).

    • POG4: Crimes of violence, including first-degree felony aggravated assault, attempted murder, rape, and certain robberies and burglaries. Examples include attempted murder with an OGS of 13.

  2. Calculating the PRS:

    • Identify the most serious prior offense.

    • Determine how many offenses of the same seriousness exist.

    • Use the PRS matrix to determine the score based on the number of similar offenses.

For instance:

  • A defendant with two misdemeanors (POG1) will have a PRS of 1.

  • A defendant with two first-degree felony robberies (POG4) will have the highest PRS of 4.

  • A defendant with three prior PWID cases (POG2) will have a PRS of 3.

  • A defendant with two VUFA (Violations of the Uniform Firearms Act) convictions (POG3) will have a PRS of 3.

  1. Lapsing of Convictions:

    • Juvenile Adjudications:

      • POG1 offenses do not count.

      • POG2 offenses lapse at age 25.

      • POG3 offenses lapse after 10 years crime-free.

      • POG4 offenses lapse after 10-15 years crime-free, depending on age at offense.

    • Adult Convictions:

      • POG1 offenses lapse after 10 years.

      • POG2 and POG3 offenses lapse after 15 years crime-free.

      • POG4 offenses lapse after 25 years crime-free.

The burden is on the Commonwealth to prove that lapsing should not occur, emphasizing the need for accurate record maintenance and litigation of disputes.

The Sentencing Matrix

Once the OGS and PRS are calculated, their intersection on the sentencing matrix provides the recommended minimum sentence. For example:

  • An OGS of 5 and a PRS of 1 might yield a recommended range of 12 to 18 months.

  • An OGS of 7 and a PRS of 3 might yield a range of 24 to 36 months.

The judge may deviate from this recommendation but must provide reasons for any departure on the record at the time of sentencing.

Factors for Departure from Guidelines

Judges may consider various factors when deciding whether to depart from the guidelines, including:

  1. Nature and Circumstances of the Offense:

    • Lack of serious harm.

    • Influence by another person.

    • Acting under provocation.

    • Justifiable conduct.

    • Role in offense.

    • Purity of controlled substance.

    • Abuse of position of trust.

    • Vulnerability of the victim.

    • Temporal and offense patterns.

    • Multiple offenses in a single incident.

  2. History and Character of the Person:

    • No history of criminal conduct.

    • Substantial period of law-abiding behavior.

    • Unlikelihood of recurrence.

    • Positive response to probation.

    • Excessive hardship from imprisonment.

    • Acceptance of responsibility.

    • Substantial assistance provided.

    • Compensation to the victim or community.

    • Character and attitude.

    • Treatment for substance abuse or behavioral health issues.

  3. Adequacy of the PRS:

    • Consider prior convictions, juvenile adjudications, or dispositions not counted in the PRS calculation.

The 8th Edition Pennsylvania Sentencing Guidelines represent a major shift in the state's approach to criminal sentencing. By refining the OGS and PRS calculations, expanding lapsing provisions, and introducing a new sentencing matrix, these guidelines aim to ensure fairer and more proportional sentencing. For criminal defense lawyers, understanding these changes is crucial to effectively advocating for clients and navigating the new legal landscape.

At The Town Law LLC, we are dedicated to staying abreast of these developments to provide the best defense strategies and ensure just outcomes for our clients. As these guidelines take effect, our expertise in criminal defense will be pivotal in leveraging the nuances of the new system to benefit those we represent.