H1601B2408A03700 MSP:CDM 10/21/15 #90 A03700
AMENDMENTS TO HOUSE BILL NO. 1601
Sponsor: REPRESENTATIVE MARSICO
Printer's No. 2408
Amend Bill, page 1, line 3, by inserting after "Statutes,"
in minors, further providing for sentencing and penalties for
trafficking drugs to minors and for drug-free school zones;
Amend Bill, page 1, lines 14 and 15, by striking out all of
said lines and inserting
Section 1. Sections 6314, 6317 and 7508(a), (b) and (d) of
Title 18 of the Pennsylvania Consolidated Statutes are amended
to read:
§ 6314. Sentencing and penalties for trafficking drugs to
minors.
(a) General rule.--A person over 18 years of age who is
convicted in any court of this Commonwealth of a violation of
section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233,
No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, shall, if the delivery or possession with intent
to deliver of the controlled substance was to a minor, be
sentenced to a minimum sentence of at least one year total
confinement, notwithstanding any other provision of this title
or other statute to the contrary.
(b) Additional penalties.--In addition to the mandatory
minimum sentence set forth in subsection (a), the person shall
be sentenced to an additional minimum sentence of at least two
years total confinement, notwithstanding any other provision of
this title or other statute to the contrary, if the person did
any of the following:
(1) Committed the offense with the intent to promote the
habitual use of the controlled substance.
(2) Intended to engage the minor in the trafficking,
transportation, delivery, manufacturing, sale or conveyance.
(3) Committed the offense within 1,000 feet of the real
property on which is located a public, private or parochial
school or a college or university.
(4) Committed the offense on a school bus or within 500
feet of a school bus stop.
(c) [Proof at sentencing.--The provisions of this section
shall not be an element of the crime. Notice of the
applicability of this section to the defendant shall not be
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required prior to conviction, but reasonable notice of the
Commonwealth's intention to proceed under this section shall be
provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider evidence presented at trial, shall
afford the Commonwealth and the defendant an opportunity to
present necessary additional evidence, and shall determine, by a
preponderance of the evidence, if this section is applicable.]
Application of mandatory minimum penalty.--Any provision of this
section that requires imposition of a mandatory minimum sentence
shall constitute an element enhancing the underlying offense.
Any enhancing element must be proven beyond a reasonable doubt
at trial on the underlying offense and must be submitted to the
fact-finder for deliberation together with the underlying
offense. If the fact-finder finds the defendant guilty of the
underlying offense, the fact-finder shall then also decide
whether any enhancing element has been proven.
(d) Authority of court in sentencing.--There shall be no
authority for a court to impose on a defendant to which this
section is applicable a lesser sentence than provided for in
[subsection (a)] subsections (a) and (b), to place the defendant
on probation or to suspend sentence. Nothing in this section
shall prevent the sentencing court from imposing a sentence
greater than that provided in this section. Sentencing
guidelines promulgated by the Pennsylvania Commission on
Sentencing shall not supersede the mandatory sentences provided
in this section. Disposition under section 17 or 18 of The
Controlled Substance, Drug, Device and Cosmetic Act shall not be
available to a defendant to which this section applies.
(e) Appeal by Commonwealth.--[If a sentencing court refuses
to apply this section where applicable, the Commonwealth shall
have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the sentence
and remand the case to the sentencing court for imposition of a
sentence in accordance with this section if it finds that the
sentence was imposed in violation of this section.] If the fact-
finder has found any enhancing element and a sentencing court
imposes a sentence below the mandatory minimum sentence, the
Commonwealth shall have the right to appellate review of the
sentence. If the appellate court finds that the mandatory
sentencing provision was applicable, the court shall vacate the
sentence and remand for resentencing in accordance with that
provision.
(f) Forfeiture.--Assets against which a forfeiture petition
has been filed and is pending or against which the Commonwealth
has indicated an intention to file a forfeiture petition shall
not be subject to a fine under this section.
(g) Definition.--As used in this section, the term "minor"
means an individual under 18 years of age.
§ 6317. Drug-free school zones.
(a) General rule.--A person 18 years of age or older who is
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convicted in any court of this Commonwealth of a violation of
section 13(a)(14) or (30) of the act of April 14, 1972 (P.L.233,
No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, shall, if the delivery or possession with intent
to deliver of the controlled substance occurred within 1,000
feet of the real property on which is located a public, private
or parochial school or a college or university or within 250
feet of the real property on which is located a recreation
center or playground or on a school bus, be sentenced to a
minimum sentence of at least two years of total confinement,
notwithstanding any other provision of this title, The
Controlled Substance, Drug, Device and Cosmetic Act or other
statute to the contrary. The maximum term of imprisonment shall
be four years for any offense:
(1) subject to this section; and
(2) for which The Controlled Substance, Drug, Device and
Cosmetic Act provides for a maximum term of imprisonment of
less than four years.
If the sentencing court finds that the delivery or possession
with intent to deliver was to an individual under 18 years of
age, then this section shall not be applicable and the offense
shall be subject to section 6314 (relating to sentencing and
penalties for trafficking drugs to minors).
(b) [Proof at sentencing.--The provisions of this section
shall not be an element of the crime. Notice of the
applicability of this section to the defendant shall not be
required prior to conviction, but reasonable notice of the
Commonwealth's intention to proceed under this section shall be
provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider evidence presented at trial, shall
afford the Commonwealth and the defendant an opportunity to
present necessary additional evidence and shall determine by a
preponderance of the evidence if this section is applicable.]
Application of mandatory minimum penalty.--Any provision of this
section that requires imposition of a mandatory minimum sentence
shall constitute an element enhancing the underlying offense.
Any enhancing element must be proven beyond a reasonable doubt
at trial on the underlying offense and must be submitted to the
fact-finder for deliberation together with the underlying
offense. If the fact-finder finds the defendant guilty of the
underlying offense, the fact-finder shall then also decide
whether any enhancing element has been proven.
(c) Authority of court in sentencing.--There shall be no
authority for a court to impose on a defendant to which this
section is applicable a lesser sentence than provided for in
subsection (a), to place the defendant on probation or to
suspend sentence. Nothing in this section shall prevent the
sentencing court from imposing a sentence greater than that
provided in this section. Sentencing guidelines promulgated by
the Pennsylvania Commission on Sentencing shall not supersede
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the mandatory sentences provided in this section. Disposition
under section 17 or 18 of The Controlled Substance, Drug, Device
and Cosmetic Act shall not be available to a defendant to which
this section applies.
(d) Appeal by Commonwealth.--[If a sentencing court refuses
to apply this section where applicable, the Commonwealth shall
have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the sentence
and remand the case to the sentencing court for imposition of a
sentence in accordance with this section if it finds that the
sentence was imposed in violation of this section.] If the fact-
finder has found any enhancing element and a sentencing court
imposes a sentence below the mandatory minimum sentence, the
Commonwealth shall have the right to appellate review of the
sentence. If the appellate court finds that the mandatory
sentencing provision was applicable, the court shall vacate the
sentence and remand for resentencing in accordance with that
provision.
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