In Pennsylvania, once you are convicted of a crime or plead guilty to a crime, it is the trial judge’s obligation to sentence you in accordance with the law. The trial judge has broad discretion when it comes to sentencing, and has a wide array of sentencing alternatives available. For instance, the judge may order you to serve probation, electronic home monitoring (house arrest), jail time or pay fines. A judge may order you to perform community service, stay away from the victim, pay restitution to the victim, or enroll in a drug and alcohol treatment program. These are a few examples of the sentencing alternatives at the disposal of the trial judge. However, there are some restraints on the court. If the crime carries a mandatory sentence, by law, the court has to follow the mandatory sentence if the District Attorney’s Office enforces it. For example, the mandatory sentence for selling drugs in a school zone is 2 years jail. If the offender is convicted, and the District Attorney’s office enforces the mandatory, the judge may not give the offender any less than 2 years jail time. Another restraint on the trial judge is that he may not sentence an offender beyond the maximum penalty provided by law. The following chart outlines the maximum sentences available to Pennsylvania judges. In the right hand column, the number of years indicates the maximum length of the sentence, and the dollar value indicates the maximum fine a judge may impose.
|18 Pa.C.S.A. §1101 et seq.|
|Felony 1st Degree||20 yrs||$25,000|
|Felony 2nd Degree||10 yrs||$25,000|
|Felony 3rd Degree/ Felonyu*||7 yrs||$15,000|
|Misdemeanor 1st Degree||5 yrs||$10,000|
|Misdemeanor 2nd Degree||2 yrs||$5,000|
|Misdemeanor 3rd Degree/Misdemeanoru**||1 yr||$2500|
|*Fu=F3; See 18 Pa.C.S.A. §106(b)(5)
**Mu=M3; See 18 Pa.C.S.A. §106(b)(9)
***Default Fine, 75 Pa.C.S.A. §6502(a)
**For example, if an offender is convicted of a Felony 3rd degree, the judge may not fashion a sentence of probation or incarceration that exceeds 7 years in length or $15,000 in fines.
Pennsylvania Sentencing Guidelines
The Pennsylvania Commission on Sentencing has promulgated sentencing guidelines as a guide for Pennsylvania trial judges to follow. However, the sentencing guidelines are NOT binding on Pennsylvania judges. The common pleas judge that sentences you may deviate from the guidelines. If the court departs from the guidelines, it MUST explain the reasons for the deviation on the record. It is my experience and legal opinion, that 99% of the time, Pennsylvania Court of Common Pleas judges give great weight to the sentencing guidelines and will sentence in accordance with these guidelines. Therefore, if you are facing criminal charge(s) in Pennsylvania it is important to calculate your sentencing guidelines well in advance of your court date.
Calculating Your Guideline Sentence
Your sentencing guideline will be based on two things, 1) the seriousness of the offense, known as the “offense gravity score”; and 2) your prior criminal record known as your “prior record score.”
Offense Gravity Score
Each Pennsylvania crime has an assigned point value. The higher the number value, the higher the offense gravity score. To determine the offense gravity score of the charge you are facing, click on the link below to 204 Pa.Code §303.15 and look up your offense to determine its offense gravity score. For example, Rape would carry an offense gravity score of 11 while Possession of a Small Amount of Marijuana carries an offense gravity score of 1.
Prior Record Score
Your sentencing guideline will also be based on your prior criminal record. Each defendant is designated what is called a “prior record score.” Your score is a point value between 1 and 5, or the most serious offenders may be categorized in the RFEL or RVOC category. All misdemeanor and felony crimes will be added together in the computation of your prior record score. Out-of-state criminal offenses will be counted toward the prior record score. Out-of-state offenses will be assigned the point value of an equivalent Pennsylvania offense. Juvenile adjudications that occurred on or after the offender’s 14th birthday and the adjudication was for a felony or one of the Misdemeanor 1 offenses listed in §303.7 (a)(4) will be counted toward the prior record score.
204 Pa.Code §303.15 – Your Offenses’ Prior Record Point Value
You may look up your offense in 204 Pa.Code §303.15 to determine the number of prior record points your offense is assigned. Note that some offenses are designated an “m” in the prior record points category. An “m” is scored as half (1/2) of a point. Only count an “m” if it adds up to a whole number. For instance, you cannot have a prior record score of 1 ½. The extra “m” or ½ point will not be counted in that instance.
The following examples will help you understand how to calculate your prior record score:
|John Doe’s Rap Sheet SS# 111-11-2222||PRS Points|
|1993 – Simple Assault – Guilty||m|
|1999 – Recklessly Endangering Another Person – Guilty||m|
|2010 – Perjury – Guilty||1|
In this scenario, John Doe’s prior record score would be a 2. Both m’s are counted because they add up to a whole number.
|Jane Doe’s Rap Sheet SS# 222-22-2222|
|2001 – False Reports to Law Enforcement – Guilty||m|
|2002 – Criminal Trespass (§3503(a)(1)(ii) – Guilty||2|
|2003 – Robbery – Not Guilty|
In example #2, Jane Doe’s prior record score would be a 2. The ½ point does not count because it does not equal a whole. Since Jane Doe was found NOT guilty of Robbery this arrest does not count against her.
Concurrent vs. Consecutive Sentences
If you were convicted of multiple offenses in the same case, the trial judge has discretion to run the sentence concurrent or consecutive. Let’s say you went to trial and were convicted of Simple Assault (M-2) and Recklessly Endangering Another Person (M-2) in the same case. One possibility is the judge could sentence you to 2 years probation on each charge and run them concurrent. Therefore, your total time on probation would be 2 years. The offenses would be running “concurrently” or at the same time. Another possibility is the judge could run the charges consecutive and give you 2 years probation on each, totaling 4 years probation.
If the offenses were ran concurrent by the trial judge, only 1 offense will be counted in the computation of the prior record score. Conversely, if the offenses were ran consecutive by the trial judge all of those offenses will be counted in the computation of your prior record score. Example #3 will help you understand.
|John Doe’s Rap Sheet SS# 111-11-2222||PRS Points|
|Docket No.: 3323-93|
|Simple Assault – Guilty||m|
|Recklessly Endangering Another Person – Guilty||m|
(*sentence of 2 years probation on Simple Assault and 2 years probation on Recklessly Endangering Another Person. The judge ran the two charges concurrent)
|Docket No.: 2232-99|
|Terroristic Threats – Guilty||m|
|Simple Assault – Guilty||m|
(*judge ran sentence consecutive; 2 years probation on each charge)
In example # 3, Docket No. 3323-93, John Doe’s prior record score would be a 0. Since the judge ran the sentence concurrent in Docket No.: 3323-93, that case would only count as an “m” or half (½) of a point. Since the ½ point stands alone, it counts as nothing. In Docket No.: 2232-99, since the judge ran the sentence consecutive both of the charges count in the prior record score. Both of the m’s on 2232-99 total 1 point. John Doe’s prior record score would be a 1 on No. 2239-99.
Once you have determined the offense gravity score of the criminal charge you are facing and determine your prior record score, you are ready to calculate your sentencing guidelines. Use the matrix below to make this calculation by matching your offense gravity score with the appropriate prior record score.
Example #4 will illustrate the use of the sentencing matrix.
If John Doe’s current offense carries an offense gravity score of 2 and John Doe has a prior record score of 1, your guidelines call for a sentence of “RS-2, Agg/Mit +/-3.” RS stands for restorative sanctions. Restorative sanctions means anything but incarceration. In my experience, 90% of the time restorative sanctions indicate that the guideline calls for a sentence of probation. The 2 in “RS-2” stands for 2 months incarceration. Therefore, if the judge chooses to follow the guidelines, the guideline range would be anywhere from probation to two months incarceration. The judge may sentence anywhere within that range if he chooses to follow the guidelines.
If you notice, on the right side of the sentencing matrix there is a section that reads “AGG/MIT.” This stands for aggravating/mitigating factors. An aggravating or mitigating factor can be anything. Let’s say John Doe gets in a fight at a bar and punches out Bruno. Bruno has to go to the hospital and get plastic surgery. John pleads guilty to Aggravated Assault. The surgery costs $50,000. Before sentencing, John Doe pays Bruno’s entire doctor’s bill. The sentencing judge could consider the fact that John Doe paid full restitution a mitigating factor. Let’s say John Doe’s sentencing guidelines were 12-18, AGG/MIT +/-6. The judge could cut John a break and mitigate his sentence by 6 months and sentence John to 6 months in prison rather than 12 months. This can work the opposite way. Let’s say John didn’t pay Bruno’s doctor bill. The judge could consider the amount of restitution and the fact that the injuries were serious an aggravating factor and sentence John to 18 months in prison.
The Minimum Maximum Rule
Pennsylvania has what lawyers refer to as the “min/max rule.” In Pennsylvania, if an offender is sentenced to incarceration, the minimum sentence date cannot exceed half of the maximum sentence. The following examples will help you understand the “min/max rule.”
Judge Tyrant sentences John Doe to 6-12 months incarceration for providing a fake name to a police officer (False Reports charge). John would be eligible for parole on his minimum date of 6 months in the county jail. The back end of his sentence John’s sentence may be served on parole. However, if he does not behave in prison or violates his probation, his parole may not be granted or could be revoked by the trial judge. John could serve more than the 6 months in jail, possibly even the maximum full 12 months if he violates the conditions of his parole.
Judge Knownothing sentences John Doe to a flat sentence of 6 months jail time for providing the fake name to the officer. This would be an illegal sentence in Pennsylvania because it violates the “min/max rule.”
Judge Knownothing sentences John Doe to a period of incarceration of 6-8 months. This would be an illegal sentence in Pennsylvania because the minimum sentence is greater than half of the maximum.
State vs. County Sentence
A common pleas judge can force you to serve your jail time in the county prison or in a state correctional facility. Any jail sentence in which the maximum sentence is 24 months or more is a state sentence. For instance, a 12-24 month sentence will be served in a state correctional facility. Many times you will see judges hand down sentences such as 11 ½ – 23 months. This keeps the prisoner in a county facility.
County jail is usually more favorable for the inmate. In county jail, you will typically be paroled on your minimum date. For example, if you are serving a sentence of 11 ½ – 23 months you will usually be getting out of jail once you have served the 11 ½ months. This is not necessarily the case in state prison. In state prison, your parole will be determined by the board of parole rather than a common pleas judge.
A trial judge may fashion what is called a split sentence. For instance, let’s say you are convicted of Forgery (F-3). You have a rap sheet the size of Texas and the trial judge wants to punish you with jail time but keep an eye on you at the same time. Since, Forgery is a felony of the 3rd degree, the maximum length of time the judge can sentence you is 7 years. The judge could fashion a sentence as follows: 11 ½ – 23 months incarceration followed by 4 years probation. The total length of the sentence is 5 years 11 months, well under the permissible maximum sentence. Therefore, this sentence is a legal sentence.
Contact Jason R. Antoine, Pennsylvania sentencing attorney serving Media, Pennsylvania and West Chester, Pennsylvania if you someone you know, have questions regarding your potential sentence or your sentencing guidelines. This web page is just a basic overview of Pennsylvania sentencing law. Contact my office for more information regarding mandatory sentences, sentencing enhancements, boot camp, intermediate punishment or drug and alcohol treatment plans in Pennsylvania.